Hudson vs. Colarusso: The Dock
On Wednesday night, Colarusso's appeal of the Order to Remedy came before the Zoning Board of Appeals. The OTR was issued on January 27 by code enforcement officer Craig Haigh because work had been done by Colarusso on the dock without approval from the Planning Board, in violation of city code. A month later, on February 23, Colarusso, through their attorney John Privitera, appealed the OTR, arguing that what was done was a "minor action" which did not require review by the Planning Board.
City of Hudson Code Section 325.17.1D specifies that "no building shall be erected, moved, altered, rebuilt or enlarged, nor shall any land or improvement thereon be constructed, altered, paved, improved or rebuilt, in whole or in part, for any purpose in the Core Riverfront C-R District, except that the following conditional uses are permitted, subject to the approval of the Planning Board. . . ." On Wednesday, Privitera argued that Haigh had misinterpreted the law and made a factual error in issuing the OTR. He maintained that what had been done at the dock--stabilizing the shoreline south of the dock with riprap and replacing the bulkhead on the north side of the dock—constituted a "minor action" and was therefore exempt for the following three reasons: (1) it was maintenance and repair that involved no substantive change or improvement; (2) the replacement of the bulkhead was "in kind"—Privitera defined "in kind" as "similar" and claimed that replacing a wood and concrete bulkhead with a steel bulkhead was "in kind" because they replaced a bulkhead with a bulkhead; (3) the work involved fewer than 4,000 square feet. Privitera asked the ZBA to reverse the Order to Remedy, saying that "the project cannot be undone, because it was fully done and approved by the Department of Environmental Conservation and the Army Corps of Engineers."
To hear all of Privitera's argument, Haigh's response, and assistant city attorney Mitch Khosrova's comments, you can watch Dan Udell's video of the proceedings, which is now available online. A report on the meeting also appears today in the Register-Star: "Colarusso appeals bulkhead violation." This report includes information contained in an amicus brief submitted to the ZBA by the South Bay Coalition.
It is up to the ZBA to decide if the code enforcement officer's decision was legal and correct. Before making that judgment, they will conduct a public hearing on the issue, to take place on Tuesday, May 9, at 6 p.m.
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It was bizarre to hear the attorney argue the merits of the project as if he was appearing before the Planning Board with a typical application.
ReplyDeleteHalf the time it seemed he was trying to convince the ZBA of the value of the work, rather than addressing the remedy. (But he did that too, in what boils down to a simple formula: A "repair," and therefore a "Minor Action," equals none of your business, Hudson).
The ZBA wasn't having it. At one point when it really looked like it might be necessary, Chairman Kenneally reminded her colleagues that the function of the Board was merely to weigh appeals. (Later it became clearer that everyone had grasped the Board's proper role after all.)
So if you removed the attorney's speeches about benefits to the public, and benevolent studies of sturgeon (the latter was actually ordered by the federal government as a permitting condition), all that should remain are arguments which cleave to the precise language of the remedy.
The remedy orders no more than the submission of an application, and attendance at a scheduled Planning Board meeting.
In the end, the appellant attended the scheduled meeting anyway! But it would not agree to the only other item ordered, the submission of an application.
The ZBA asked great questions relating to "like-for-like," and who-said-what-to-whom-first?
Even more important, though, its members seemed to grasp the proper role of an appeals board.
An appeal can reach no further than the specific remedy being appealed, and there is nothing in the Order to Remedy about a "review" (try as Mr. Privitera did to get the ZBA to review the project).
The only question for the ZBA is, is the remedy legitimate?
Can a municipality restrict the use of its waterfront to the point of eliminating the historical use of the people's shore?
ReplyDeleteThe city doesn't "own" any land beneath navigable waterfront. It holds title for a single use, to promote navigation.
ReplyDeleteColarusso delivers the prescribed, customary and historical use of shore. They promote an obligation this city does everything to avoid.