Wednesday, March 8, 2017

Another Bump in the Road

It seemed odd last fall when Ray Jurkowski, the engineer retained as a consultant by the Greenport Planning Board, appeared also as the engineer consulting with the Hudson Planning Board on the proposed Colarusso haul road. Was he the only engineer in the area capable of advising on this project? It turns out Jurkowski is considered the "city engineer" for the City of Hudson. It was Jurkowski who was brought in to help code enforcement officer Craig Haigh assess the structural viability of 718-720 Union Street

Once the Department of Environmental Conservation (DEC) named the Greenport Planning Board the lead agency for SEQR (State Environmental Quality Review), the advantage of having the same engineer advise both boards became clear. Jurkowski could keep the concerns about the haul road that are uniquely Hudson's before the Greenport Planning Board as they did their scoping and assessment of the environmental impact of what was being proposed, facilitating what is supposed to be a coordinated review. 

At the last Greenport Planning Board meeting, however, there seemed to be a problem, centering around Jurkowski, and the board went into executive session to discuss it. Today, the Register-Star reports the outcome of that closed door meeting: "Engineer stops advising Hudson on Colarusso haul road." It seems that the Greenport Planning Board asked Jurkowski not to work for the City of Hudson, and last week, Jurkowski informed Hudson Planning Board chair, Tom DePietro, that he would be recusing himself from Hudson's consideration of the proposed haul road.


  1. There may (I emphasize the word may) be some merit in the concerns about serving two parties, that may end up in conflict with each other, but the action does potentially imply that the Greenport planning board has a suspicious/hostile attitude towards Hudson on this matter that may not bode well for our city.

    The other downside, is that Jurkowski has so much knowledge about this matter, that now neither Greenport nor Hudson will be able to utilize. It would have been far better if Greenport had not hired Jurkowski in the first instance, rather than cut bait now.

    Finally I wonder if there is something specific that Jurkowski did that raised the Greenport planning board's hackles. Or was it a complaint about Jurkowski's status from Colarusso that got the board nervous?

  2. Oh, I see that Jurkowski is still working for Greenport. I am not sure that is appropriate, without Jurkowski obtaining Hudson's permission. Once you have worked for both sides, dumping one side without its permission, is not the way that we do it in the legal field. What an irritating mess that we have here.

  3. 1.

    So, Greenport essentially fires Hudson's engineer for us, but then doesn't tell anyone for days? And with the Chairman of Hudson's Planning Board right in the audience when Greenport went into Executive Session to decide the matter. Real nice.

    But what could possibly be the "interest" that's allegedly in conflict?

    For a hypothetical, imagine that the Greenport Planning Board's lawyer had done work in the past for the applicant, or even that this lawyer's firm had done such work. If there was a pattern of doing business with the applicant, and the likelihood of more work to come, then you might make a case for a conflict of interest there.

    But from today's news we know the problem was not that Mr. Jurkowski was interested on behalf of the applicant (because he'd be off the case entirely), but that he's allegedly interested for the City.

    But in what manner can a municipality be considered "interested"?

    If this is about the fact that the applicant "leases" mining lands from the City of Hudson (the lease was actually an interest-free sale which will hold us hostage for generations), then you just know that the idea of a conflict didn't originate with the Greenport Planning Board.

  4. 2.

    At last week's Greenport meeting, did anyone else notice the rapid succession to the Jurkowski affair from the Greenport lawyer's nervous announcement concerning the applicant's appeal of the City's violation Order?

    Taking all of these events, I believe that the applicant's lawyer is increasingly calling the shots for Greenport, and essentially steering the ship. Inasmuch as Greenport is taking its lead from the applicant, the applicant may be creating the conditions and parameters to direct the entire process to a particular outcome.

    For example, Greenport's announcement relating to Hudson's zoning issues was its most conclusive yet relating to a theme we've heard uttered by the Town's lawyer all along. In the past, there was no basis for the prediction that zoning issues would not be considered until after the SEQR review is completed. The state's SEQR Analyst has already said that that would be an improper segmentation of the review.

    Now, however, the applicant's appeal of the City's violation Order generates the appearance of a conflict.

    It is no more than an appearance, but it has already led the Greenport lawyer to speak about the postponement of all zoning issues as if this outcome was a certainty.

    It is baseless. Now that we've all analyzed the claims asserted in the appeal, and realized that not a word of it holds water, it's easy to see that the appeal is a pretext.

    Naturally a lawyer will throw anything at a wall to see what sticks, but every argument made in the appeal is so absurdly flimsy that its purpose cannot possibly engage the alleged violation itself.

  5. 3.

    But for what is the appeal a pretext?

    This absurd appeal makes it possible for the applicant and the Town of Greenport to achieve what both have telegraphed all along, the removal of all the City's zoning considerations from the SEQR review.

    Before now, there was no justification to even suggest that outcome, although that fact never gave Greenport any pause. Nor did it stop Greenport from looking to facilitate this outcome.

    As mentioned earlier, the DEC's SEQR Analyst already agreed that removing the zoning would be segmentation under the SEQRA, and for several reasons.

    Just consider the voluminous evidence which documents the City's reasons for amending its zoning (in 2011). The zoning was amended for the purpose of the environmental protection of South Bay. So how can the zoning now not be included in this environmental review? (I mean, aside from the fact that the applicant acquired its federal and state permits by claiming that the Zoning Code "permitted" the port projects, a claim the City has just learned in 2017 from documents which should have been submitted to us years ago.)

    If the DEC decides to remove the City's zoning issues from consideration in the SEQR review, that will commit Hudson to a second SEQR review later on. The ZBA will have to become a SEQR Lead Agency for the purpose of reviewing the potential environmental impacts of issuing a use variance for the proposed haul road.

    Within the State Environmental Quality Review Act (SEQRA), the expectation is that the state must aim to avoid such redundancies and their potential segmentations.

    If it comes to pass, however, the DEC will have accomplished a third segmentation of this review. At that point, could there be anyone left who didn't suspect the DEC of being in the can for this applicant?

    Fortunately, the City has kept it's head down thus far, and has not engaged in these implicit segmentations.

    In the meantime, our officials will benefit from reading Gossips where they'll find guidance from residents who hope to avoid traps set by the one individual who's increasingly calling the shots for everyone, the applicant's lawyer.

  6. The SEQR Handbook asks how SEQR should be applied to a ZBA's review of a use variance application.

    Because the granting of use variances by ZBAs is not exempt from SEQRA, an applicant generally benefits from separating the SEQR review for a required variance from the overall SEQR review for the project itself.

    The state suggests way to handle these SEQR overlaps. But in the following explanation, in which the state accepts as a given that zoning issues are settled BEFORE the greater SEQR review is initiated, the explanation doesn't lend itself to a situation where a municipality without a Zoning Code is granted Lead Agency status over a municipality that does have zoning.

    Our circumstance, which keeps getting worse, was the result of the DEC Commissioner's choosing Greenport over Hudson as Lead Agency with the following explanation:

    "The City Planning Board indicates that there is some question as to whether the proposed haul road is in conflict with the City's zoning. However, the City Planning Board does not offer any specific information on this issue for guiding consideration of the City Planning Board's potential jurisdiction."

    Has the correct municipality been named as Lead Agency, the following would apply with no added - or invented - complications.

    From the NYS SEQR Handbook:

    "The zoning board should determine based on the EAF and other information whether to require an EIS. This determination will come before the decision on the variance; in fact, this determination will be made as part of the determination on whether the application is complete for review purposes. ...

    "Another practical problem with variances is the potential for redundant SEQR reviews. Once a use variance is granted, most municipalities will provide for either site plan review or special use permit review, or both, of the project that has been granted the variance. ... This second review may result in needless repetition of the same SEQR issues that were addressed during the variance stage of the review. One solution is to coordinate SEQR review of the variance ... [and] site plan application" wherever the review coordinated.

    "This approach may result in more immediate cost to the project applicant. However, coordinated review avoids segmented and repetitive review of the action" (The NYS SEQR Handbook, pp. 185, 186).

    Consciously or unconsciously, the Greenport Planning Board is actively pursuing the interests of the applicant to remove the City's environmentally-motivated zoning restrictions from the overall environmental review. In this way, the Greenport Planning Board continues to exploit the insufficiency of Hudson's original letter requesting Lead Agency status for the SEQR review - a letter which explained nothing about the significance of our Recreational Conservation District and offered no details about the restrictions the City placed on present and future owners of the port and the South Bay.

    In Hudson, we're still paying dearly for our lackluster request to the DEC Commissioner.

  7. This evening, the new bulkhead was measured from a boat at the lowest possible tide. We were there to see the tide reverse itself.

    The appeal asserts the following nonsense:

    "The retaining wall is along the side of a narrow, shallow inlet that is only about 25 feet wide in which the water is only a few feet deep. The low retaining wall, which does not exceed the working surface of the dock, cannot be used for commercial or industrial purposes because of the very shallow conditions of the narrow inlet" (p. 4).

    In fact, the height of the steel bulkhead is now identical on all sides, and not "low" at all!

    The appeal states that "the Company has made no alterations to the dimensions of the commercial dock," when in fact the dock was moved out two feet, so its dimensions were altered.

    It's true that river bottom off the bulkhead is shallow, but the slip can be dredged. (Today, the US Army Corps of Engineers stated that dredging was not a component of the bulkhead permit.)

    The width of the slip is also misreported in the appeal. It is 42 feet across, and not "about 25 feet."

    Nearly every detail of this appeal is obviously baseless, probably because it's meant to serve another function entirely.

    1. On page 10, the appeal claims that the "bulkhead repair is the same height" as it was before it was rebuilt.

      That will be simple to disprove using photographs of the previous bulkhead.

      But when the appeal claims that "the Company has not altered, amended or revised the Site Plan," is the lawyer out of his mind?

      We not only have the previous Site Plan for which the Army Corps of Engineers ordered revisions, but we have a letter from the Corps listing all of the "revisions" to date to the Site Plan.

      Perhaps the Company lawyer is being tricky with the article. He doesn't say "any" Site Plan; he says "the" Site Plan, as in the Final Site Plan, which is of course singular.

      That's the level of the entire appeal - lawyerly tricks.

  8. Is this behavior typical of cities and their issues or is Hudsons drama particularly singular ?