Last night, the six members of the Zoning Board of Appeals present unanimously denied Colarusso's appeal and upheld the code enforcement officer's Order to Remedy for the work done at the dock last November, specifically replacing the bulkhead along the north side of the dock.
The evening began with JR Heffner, vice president of operations for Colarusso, reading what seemed to be his affidavit, detailing the process followed, the permits received from state and federal agencies, and conversations with Hudson city officials and others. Next, Pat Prendergast, engineer for Colarusso, displayed--to the ZBA but not to the public--enlargements of photographs to illustrate that the bulkhead had been in dire need of repair and that in replacing it Colarusso had done a good thing. Then, John Privitera, attorney for Colarusso, took the floor.
After reiterating that Colarusso was appealing a misinterpretation of the law by Hudson code enforcement officer Craig Haigh, Privitera launched into an explanation of three "procedural errors" the ZBA had made and was about to make. The first was to accept a citizens' amicus brief. The second was what Privitera characterized as an "opposing brief" filed by Mitch Khosrova, the assistant city attorney who is counsel to the ZBA. Privitera said he had not been served this "opposing brief" and knew about it only after discovering it on the City website. He alleged that the memo to the ZBA from its attorney "reads like he is an advocate for the code enforcement officer." After responding at length to Khosrova's memo, citing what he considered the "huge red herrings" it contained, Privitera concluded, "There is not a single paragraph of the opposing brief that makes any sense to us." (Later in the meeting, Khosrova thanked Privitera for reminding him of the good old days when his children, now grown, were teenagers and thought everything their father did was stupid.) The third "procedural error" Privitera noted was accepting public comment. "You are charged with making a decision based solely on the law," Privitera told the ZBA. "Public comment should not figure into the decision." Nevertheless, public comment was heard.
The first to speak was Timothy O'Connor who read a lengthy statement in which he made frequent reference to William Sharp's explanation of the protections for the Core Waterfront District written into the City's Local Waterfront Revitalization Program (LWRP), which was adopted by the Common Council in November 2011. Sharp is the principal attorney for the NYS Department, and he was speaking to the Common Council on September 26, 2011. (A recording of that meeting has been archived by WGXC.) O'Connor pointed out that the language in the LWRP, which had been recommended by Sharp, was intended to protect the City against potential intensification of use in the Core Waterfront District. Opining that "the City has not yet caught up with the sophistication of its zoning," O'Connor stressed that the current use of the dock is a nonconforming use, and conditional use permits are needed for any alteration. Speaking specifically of the alteration made to the dock, he concluded, "It was the City's business to decide what was a repair or not."
Next to speak was Julie Metz, who questioned Colarusso's motive in appealing the OTR, suggesting that the goal was to "undermine Hudson's laws and approval process and set a precedent for itself or future owners." She alleged that Colarusso was "insulting Hudson by behaving as if they are exempt from the City's zoning laws."
Since Privitera had argued that the dock was exempt from Planning Board review because it was a repair in kind and hence a minor action, Kristal Heinz asked the question, "What would be rebuilding in whole or in part if this isn't?" When the question was referred to Privitera, he asked, rather petulantly, "Is this how it's going to go?" before telling Heinz that only actions, making the legal distinction between actions and minor actions, required review by the Planning Board.
The last person to comment was John Rosenthal, who observed that Colarusso had gone to great lengths to get permission from everyone except the City. "They determined it was a minor action, and the City had no say."
During the discussion among ZBA members--Lisa Kenneally, Russ Gibson, Myron Polenberg, Kathy Harter, Mary Ellen Pierro, and Steve Dunn--that followed the public hearing, Gibson elaborated on the idea of precedent, saying, "If the Zoning Board sets a precedent and allows this to happen, we open the City to devastating effects." He went on to say, "It is not for the applicant to determine what needs review."
Dunn, speaking from a five-page statement of opinion he had prepared and submitted for the record, began by saying that he agreed with Privitera that the question being considered was "entirely a question of law" and then proceeded to explain how the law supported the opinion that "the decision of the Hudson Code Enforcement Officer's citation of Colarusso's unilateral construction of a steel bulkhead without Planning Board approval should be upheld." During his statement, Dunn pointed out that the current use of the dock is a nonconforming use and defined a nonconforming use as "a use that is disfavored, and the municipality looks forward to its end."
After more discussion, Dunn moved that the ZBA deny the appeal because the work done "was not a minor action and Hudson law required Planning Board review." In a voice vote, the six members present voted unanimously in favor of denying the appeal and upholding the Order to Remedy.
An audiorecording of the ZBA meeting made by WGXC can be heard here.
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