Order and Appeal on the Waterfront
On January 27, Mayor Tiffany Martin announced that Code Enforcement had issued an Order to Remedy to A. Colarusso & Sons. The specific violation cited was described as "Replacement of concrete and wood bulkhead with a steel bulkhead on loading dock without approval from the City of Hudson Planning Board as per Section 325-17.1(D) City of Hudson Code." The remedy prescribed was: "Submit a City of Hudson Planning Application to the City of Hudson Code Enforcement Office to appear at the planning board meeting no later than the March 9, 2017 meeting. All planning applications have to be submitted to the city code office 10 days prior to the meeting."
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Ten business days prior to March 9 was yesterday, and yesterday, instead of submitting an application for review, Colarusso, through its attorney John Privitera, filed an appeal of the Order to Remedy (OTR). According to the appeal, the OTR was directed "only at the 75-foot retaining wall along the non-working, northern edge of the commercial dock that abuts a shallow, narrow inlet." It argues that the OTR is based on a misinterpretation of Hudson code, that the City was fully informed of the erosion repair project before it was undertaken, that the repair was a minor action that did not require review by the Planning Board, and that the erosion repair was in "the best interest of the the safety and welfare of the community." The appeal, which is fifteen pages long with many more pages of exhibits, states the following conclusion:
Fundamentally, the Order to Remedy is unlawful because it misinterprets the Hudson City Code with respect to local permit jurisdiction over repairs at the dock.
The Order is also deeply flawed because it is only rational and reasonable if there is something to "remedy" at the dock. There is nothing of the sort, so the Order is irrational.
The repairs cannot be undone or changed or altered without violating federal and state environmental permits. There is no improvement to review, no environmental analysis to conduct, no new site plan to study or other reasonable, lawful task for the Board to undertake.
For all of these reasons, the Order to Remedy should be deemed null and void.
The appeal was made to the Zoning Board of Appeals, which will have to act as a judicial body in the matter.
COPYRIGHT 2017 CAROLE OSTERINK
Update: The appeal and the supporting documents (Part 1 and Part 2) can now be viewed at the City of Hudson website.
ReplyDeleteSo this appeal, which is a large document created by a big law firm, was a better strategy than simply acquiescing to the "remedy," which was to finally submit an application to the Planning Board?
The adjudicatory process may end in a fine, but one that's got to be a whole lot smaller than the lawyer's bill!
Whatever the angle, this benevolent neighbor has now set things on a the judicial path. Why on earth?
And make no mistake, it's not the interpretation of the Code their attorney is questioning, but the legitimacy of the City's Code itself.
Specifically regarding the bulkhead, in July 2016 the Army Corps of Engineers warned the corporation that the Corps' determination "does not eliminate the need to obtain ... local authorization required by law for the proposed work, [etc.]."
So the company needed additional reminders? How many reminders would have done the job if even the Federal government wasn't heeded?
It's interesting that the appeal agrees with the public in one respect, if only for the wrong reasons. If the unauthorized bulkhead work was truly a violation, then there was more than one violation committed here. Therefore, it was arbitrary and capricious for the City to single out only one of these violations.
Couldn't agree more.
Now that the appeal is available for study, it's increasingly evident that the cover-up (the appeal) is worse than the crime (the violation).
ReplyDeleteBut why would the company's lawyer recommend this course of action when the appeal is so insulting to everyone's intelligence?
To begin, the lawyer gives the correct Code citation for the affected District's conditional uses, but then says it's for "fully permitted uses." Doesn't he know that the ZBA will study the actual Code?
And what does the Code say at this citation, but that "no building shall be ... REBUILT" without the approval of the Planning Board (emphasis added).
Later in the appeal, the lawyer explains that this work was done for the benefit of the public. Sure, of course it was, but that's neither here nor there. The violation is for work done without Planning Board approval, period.
So what does this Order actually order? The remedies are conveniently enumerated:
"REMEDY: Submit a City of Hudson Planning Application to the City of Hudson Code Enforcement Office to appear at the planning board meeting ..."
What could be so onerous about submitting an application and then attending a meeting? How bad can that be for the company?
The work will not be undone (as the lawyer himself points out), and any fine levied would be considerably less than what the company has already paid the lawyer for this heap of prevarications.
At least we now have all of the waterfront documents missing from the latest, insufficient Project Narrative.
Why missing? Well it's apparent that the applicant will not relent on its segmentation of the whole project (which makes the overall impact of the larger proposal seems more palatable on a superficial viewing), but fortunately it is the Lead Agency which determines the completeness of an environmental review and not the project sponsor.
It's the Lead Agency which determines what is and what is not "segmented," and both municipalities have already judged that by excluding the port from the review there is segmentation.
Still, it behooves us to request of the Greenport Planning Board - the Lead Agency - that it include the appeal documents in the SEQR environmental review of the whole project.