Wednesday, May 25, 2016

News of the Greenport Planning Board Meeting

Colarusso's proposal for a haul road from the quarry to the river came before the Greenport Planning Board on Tuesday night. Patrick Prendergast, the same person who presented the plan for O&G back in 2009-2010, presented it again last night, acknowledging that the plan was essentially unchanged since then. In fact, Prendergast quipped he'd been "hunting and pecking" through the documents he'd created in 2009 to change O&G to Colarusso.

Gossips remembers, as did at least one member of the Greenport Planning Board, that the NYS Department of Transportation had some unresolved concerns about gravel trucks crossing Route 9G and entering and exiting Route 9, but Prendergast told the Greenport Planning Board that DOT had approved the project in December 2010 (months after the project was before the Greenport Planning Board the first time), but O&G "never got a work permit from DOT." (The project never got site plan approval from the Greenport Planning Board in 2010 and never came before the Hudson Planning Board.) Prendergast told the Greenport Planning Board that Creighton Manning had done a traffic analysis of both the intersection of the proposed haul road and Route 9 and the intersection of the haul road and Route 9G--a study that would be submitted soon, as part of their application. 

During the course of the discussion, some interesting things were revealed. First, although Colarusso purchased all of Holcim's holdings in the City of Hudson, they did not purchase the land owned by Holcim 930 feet from Route 9G (the Hudson border) to Route 9. This land is still owned by Holcim, and Colarusso has a 100-foot wide easement through that property.

Also revealed was Colarusso's plan to move the roadway through South Bay south, to center it on the causeway. It seems the "causeway"the path through South Bay that was filled in during latter part of the 19th century to support Fred W. Jones's mountain railroadonce accommodated two railroad tracks and a service road. The path now being used by gravel trucks making their way to the port is actually the service road. The plan, as Prendergast explained it, is to move the roadway to the center of the causeway and make it wide enough to accommodate two-way traffic, and then to create a "grass filter strip" on either side between the roadway and the wetland. Prendergast said this plan was now being reviewed by the NYS Department of Environmental Conservation (DEC), claiming Trish Gabriel and "the wetland" person" are "OK with it."

Ray Jurkowski, the engineer on the Greenport Planning Board (the Greenport Planning Board is required to have one engineer memberwhat a concept!), asked about SWPPP (Stormwater Pollution Prevention Plan), noting that what was being proposed was "a disturbance of 8.8 acres." Prendergast posited that it was simply "maintaining a road." Jurkowski countered, "It's a disturbance."

Edward Stiffler, chair of the Greenport Planning Board, disclosed that he had received a call that afternoon from Hudson mayor Tiffany Martin Hamilton, who was concerned that the City of Hudson was being left out of the review process. Prendergast attested that the proposal had been "hand delivered," presumably to the code enforcement office, on Friday. (Gossips discovered the project listed on the agenda for the Greenport Planning Board on Thursday, May 12--a week and a day before it was submitted to the City of Hudson.)

Toward the end of the Planning Board's consideration of the proposal, Stiffler acknowledged the receipt of a letter from the Valley Alliance, noting that it raised concerns "we may want to address at a future time." When asked if the Greenport Planning Board intended to declare itself lead agency in the review of the proposed haul road, Stiffler said they haven't decided yet. He earlier spoke of gathering additional information to determine whether or not the project "trips a threshold for a coordinated review" with the City of Hudson.


  1. That's is the same engineer, Prendergast, who supplied incorrect measurements to the Army Corps of Engineers on the site plan for the recent bulkhead proposal. The incorrect figure was suspiciously the exact length of the entire first slip. (The Corps rejected the plan and gave a Christmas deadline to fix it.)

    And the same Prendergast who supplied incorrect measurements on the causeway proposal's initial site plan in 2007.

    Anyone else want to pile on? If memory serves there's a whole lot more, but I'll only write accusations which I can also prove.

  2. Going forward, the most important word definition - the one which will require our greatest care - is for "causeway."

    The State of New York provides no definition for “causeway,” but case law does.

    In Ocean Causeway of Lawrence v. Gilbert, the the Appellate Division looked to the American and English Encyclopaedia of Law to find that a "causeway is 'a way raised above the level of the ground, by stones, earth, timber, etc., serving as a dry passage over wet or marshy ground.'"

    Defined as “a way raised [for] dry passage," the South Bay causeway and its road are one and the same.

    Further, Webster's provides the following definition:

    "1. a raised path or road, as across wet ground, 2. a paved way or road; highway." The word is derived from "Causey ... [ME. cauce < Anglo-Fr. caucie < VL. calciata < calciare, to make a road < L. calx (gen. calcis), lime] ..."

    For now on, the most important thing we can do is to police our own language, but not separating "road" from "causeway."

    Those who insist on making a false distinction will be doing the industry's public relations for them.

    The causeway is the road, and vice versa.

    The proposal is not to move the road on top of the causeway, but to move the causeway itself.

    See: Ocean Causeway of Lawrence v. Gilbert.

  3. The new proposal intends to move the South Bay causeway.

    For now, put to the side whatever the DEC thinks about our wetlands.

    In 2011, the City amended the Zoning Code to create conservation districts in the north and south wetlands.

    Moving the causeway into the Recreation Conservation District will require a variance.

    Will the landowner claim that its predecessor was unduly burdened by the zoning changes?

    Will it claim that the Zoning language, which is as clear as can be, created a hardship before the company bought the land?

    The causeway is a "nonconforming use" in our Code. It is our City-wide policy to prohibit nonconforming uses from being "enlarged" or "extended" (§325-29), which includes being moved.

    What should our attitude be when the City is approached with the new proposal?

    This is the same mining company which used the first month of the new mayor's administration to refurbish the east causeway. The action was accomplished without seeking the City's permission, despite the plain fact that a Planning Board review is required for all "conditional uses."

    By the company's own admission, the January action enlarged a use which is a "nonconforming use."

    Finally, by widening the road in January, the company was forced to enter the Recreational Conservation District. It did this by adding 3/8 of an acre of road materials into a district where road-building is prohibited.

    Now we're being been told that A. Colarusso and Son, Inc. is a much-loved local company. But what kind of neighbor behaves like this? To say that the company is utterly inconsiderate is being too kind.

  4. Having seen what the DEC is capable of, right now I'm as little interested in the wetlands issue as I am the Stormwater Pollution Prevention Plan (SWPPP). For these things, one signature from the DEC can excuse all.

    But a SWPPP plan is only one component of the "SPDES General Permit for Stormwater Discharges from Construction Activity" (GP-0-15-002).

    The General Permit is required in any event, yet a FOIL request to the DEC in March turned up no related documents.

    Now, nobody at the State-level can excuse either the General Permit or its Notice of Intent, so how did the January road construction proceed without a State-issued SPDES permit?

    From the Preface of permit GP-0-15-002:

    "[S]tormwater discharges from certain construction activities are unlawful unless they are authorized by [the] state permit program ...

    "An owner or operator of a construction activity that is eligible for coverage under this permit must obtain coverage prior to the commencement of construction activity .... They cannot wait until there is an actual discharge from the construction site to obtain permit coverage."

    From the DEC FAQ page:

    "With some exceptions, operators of construction activities that will result in the disturbance of one (1) or more acres of land must obtain coverage .... Also requiring a permit are construction activities disturbing less than 1 acre if they are part of a larger common plan of development or sale with a planned disturbance of equal to or greater than 1 acre ..."

  5. The unsubstantiated claim by Pendergast that the current route is an old “access road” is belied by several well-established facts, which have been cited in prior filings with both the City and Town:

    1) Applications by the previous owner to NYS DEC and the Corps repeatedly referred to this as an “abandoned railbed.” It was never described as a former access road or even a “causeway.”

    Those terms were introduced by Holcim/O&G during the LWRP process and abandoned application to Greenport for the purposes of spinning this as an existing use (and were dutifully repeated by the likes of Cheryl Roberts and Don Moore).

    2) Circa 1999, a large number of railroad ties were removed by St. Lawrence Cement from what is now approximately the center of the current route.

    At the time, I obtained a picture of these ties piled up along Route 9G. (I will try to locate it on archived hard drives, but it may be difficult to find.)

  6. To take this line of thought further, consider the sloppiness (I'm being charitable) that planted the following ambiguity into the language of the Core Riverfront District: "private causeway or private road."

    Here's the full context from our Code, at §325-17.1.D(2):

    "Conditional Uses. ... These uses are further subject to the regulations specified below: .... A private causeway or private road that provides ingress to or egress from the property ..."

    The drafters certainly were aware of the fact that "or" is often a problem in law, so what could have justified using two nouns - causeway and road - when one alone was sufficient? What was the advantage?

    In this context anyway, the conjunction "or" suggests that, of the two nouns, one or the other is the more apt description of an identical object. If that's the case, then "or" presents the least common denominator between alternate descriptors: one of these is true.

    We can only speculate what was gained by introducing this ambiguity, which is further complicated by the absence of a legal definition of "causeway" either locally or at the State level.

    (Fortunately, case law from the Appellate Division provides that a causeway is a synonym for a special kind of road, making the Core Riverfront District's second noun superfluous and redundant.)

    However, one possible use of the ambiguity does come to mind.

    At the February 11, 2013 Meeting of the Common Council, the public asked if the width of the Core Riverfront Zoning District in South Bay was equal to the "width of the road" at the time the zoning was amended?

    With the city attorney beside him who drafted this part of the Code, "President Moore said 'the Core-Riverfront is the width of the causeway.'” (Common Council Minutes, 2/11/13, p. 37.)

    Because in New York State a causeway is another name for a road, one wonders why he answered "causeway" instead of "road," as the question had asked.

  7. As they appear in the Code as a "private causeway or private road," these alternates correspond to the "inclusive disjunction" known to logicians.

    Of two in a series, it means either or both, if the two are even different things.

    My guess is that the amenders of the Zoning Code in 2011 needed to kick some issue down the road, with a further assist by President Moore at the 2013 meeting.

    They kicked it all the way to 2016. Brilliant!