Saturday, September 23, 2017

Suit and Countersuit

On August 25, the City of Hudson filed an Article 78 lawsuit against the Greenport Planning Board, A. Colarusso & Sons, and Holcim US "to annul, vacate, and set aside the July 25, 2017 approval by respondent Town of Greenport Planning Board (hereinafter 'Planning Board') of a 'Negative Declaration' under the State Environmental Quality Review Act, ECL Article 8 ('SEQR'), for the proposed widening, relocation, and improvement of an existing 2.33 +/- mile long truck 'Haul Road' (hereinafter 'the Project') by respondents A. Colarusso and Son, Inc. and Colarusso Ventures, LLC (hereinafter collectively "Applicant" or "Colarusso"), and for an order requiring the Planning Board to adopt a 'positive declaration' under SEQR and to require the preparation of an environmental impact statement ('EIS') for the Project."

On September 15, A. Colarusso and Sons and Colarusso Ventures, LLC, filed a countersuit against the City of Hudson, the Hudson Planning Board, and Hudson Community Development & Planning Agency, seeking a judgment:
(1) vacating and annulling the determination of Respondents CITY OF HUDSON AND CITY OF HUDSON PLANNING BOARD to conduct an unlawful SEQRA review of certain repairs that Petitioners/Plaintiffs have already performed to their commercial dock; (2) prohibiting Respondents CITY OF HUDSON AND CITY OF HUDSON PLANNING BOARD from imposing excessive fees on Petitioners/Plaintiffs in connection with Respondents' review of these dock repairs; (3) prohibiting Respondents CITY OF HUDSON AND CITY OF HUDSON PLANNING BOARD from imposing excessive fees on Plaintiffs/Petitioners in connection with Respondents' review of Petitioners/Plaintiffs' application to resurface their haul road; (4) prohibiting Respondents CITY OF HUDSON AND CITY OF HUDSON PLANNING BOARD from further regulating the intensity of Petitioners' use of their commercial dock and haul road; (5) vacating and annulling the determination of Respondents CITY OF HUDSON and HUDSON COMMUNITY DEVELOPMENT AND PLANNING AGENCY that Petitioners/Plaintiffs require a development permit pursuant to Chapter 148 of the Code of the City of Hudson before they may resurface this haul road; and (6) granting such other and further relief as the Court deems just and proper.
Paul A. Colarusso, president of A. Colarusso & Sons, announced the company's countersuit yesterday in a meeting with the editorial board of Columbia-Greene Media, a.k.a. the Register-Star. That meeting was videotaped and can be viewed here. At the beginning of the video, Colarusso, responding to a question from Register-Star reporter Amanda Purcell, indicates that the countersuit is "about the SEQR process previously done on the dock repair project." He goes on to say, "The City of Hudson Planning Board wants to redo SEQR on the dock, and we feel that is not appropriate, and our lawyers feel it is not appropriate." He acknowledges that "there's other stuff in there," but the SEQR issue is the reason for the countersuit.

The City of Hudson wants the Greenport Planning Board's negative declaration in SEQR to be annulled, vacated, and set aside, arguing that the Greenport Planning Board "failed to take a hard look at the potential significant adverse environmental impacts of the Project." According to Colarusso, the reason for the countersuit is to prevent the Hudson Planning Board from redoing SEQR on the dock repair project--a project that was completed toward the end of 2016. Gossips is unaware of any plan to redo the SEQR on the dock beyond a comment made by Mitch Khosrova, counsel to the Hudson Planning Board, at the board's last meeting, during a discussion of the quantitative data--traffic volume and noise levels--that is needed for the board to consider Colarusso's application for a conditional use permit for its dock operation. (The need for a conditional use permit for the dock operation, previously a nonconforming use, was triggered by the repairs made to the dock.) In the context of advising the board about its right to have the information it seeks and the possible consequences should the applicant continue not to provide it, Khosrova said--or at least it is so recorded in my notes from the meeting--"You have to do SEQR for the dock." Could it be that this comment prompted the lawsuit?

Then there's the issue of the previous SEQR. Later on in the video (starting at 2:59), Colarusso clarifies that SEQR was done on the dock project with the Department of Environmental Conservation (DEC) as lead agency. He alleges that the City of Hudson was notified of the project--not by Colarusso but by DEC--and the City "chose not to be an involved agency." If what Colarusso says is true, one wonders when and how this happened. 

The first time Gossips reported on the dock project was in November 2015, when the application submitted to DEC by Colarusso on October 15, 2015, was discussed at an informal Common Council meeting. At that point, the review by the Army Corps of Engineers was already underway, as evidenced by the fact the the Council had received a copy of a letter, dated September 9, 2015, from the ACE requesting more information from the applicant, and a DEC public comment period was about to end, suggesting that DEC was then doing SEQR. If the City of Hudson did indeed deliberately opt out of its role as involved agency, it is not clear when or how or by whom the decision was made. At that time, in November 2015, when asked if the Common Council intended to make a comment during the public comment period on behalf of the residents of Hudson, Don Moore, then Common Council president, said the review was taking place at the state level and indicated that the Planning Board would be the agency of city government that would have jurisdiction in the matter. Ten months later, in August 2016, when the Council received a copy of another letter from the ACE, dated July 18, 2016, which made reference to "the need to obtain any other Federal, State or local authorization required by law for the proposed work," Alderman John Friedman (Third Ward) wanted to know what permits from the City were required. Friedman's question, directed to Council president Claudia DeStefano, went unanswered, but on January 27, 2017, Mayor Tiffany Martin Hamilton announced that the Code Enforcement Office had issued an Order to Remedy (ORT) to Colarusso for the dock because they had failed to seek approval from the Planning Board for the repair project.


  1. On at least three occasions, Colarusso has declared that they have no plans to ramp up the volume of their business. So, one wonders why in the world they are spending hundreds of thousands of dollars on legal & engineering costs? This review is costing them a fortune, and it still has a long way to go. Why make such a large expenditure if there isn't a big payoff in terms of increased volume? Something doesn't add up here.

    Colarusso is playing this game badly. Their application has now become extremely controversial, and will be costing the taxpayers money. At some point, everyone will want this ugly mess to just go away.

    1. I think a lot of this will make sense once the ZBA looks at the Applicant/Plaintiff's claims about the zoning boundaries confusingly presented on the road proposal's site plan.

      There seem to be two sets of boundaries when there can only be one.

      The landowner's wider set of boundary perfectly coincides with the 2007 conveyor system proposal by St. Lawrence Cement, a proposal allegedly worked out in private between the previous industrial landowner and Linda Mussman, who was acting on her own as Chairman of the Waterfront Advisory Steering Committee.

      Ms. Mussman, who's currently running for office in the 4th Ward, probably has no idea that her decade-old conveyor system debacle is back to haunt her. It's time for her to own her treachery once again.

  2. Colarusso's lawsuit is pretty sad and so far from ripe that it isn't yet a bud on the limb of a winning case. It has the "everything and the kitchen sink" quality of arrogance, frustration and desperation. It's full of ridiculous claims of interstate commerce and all types of legal hoo-haw meant to arouse the attention of feeble thinkers and to create the sense that the application of our local law is somehow anti-business, and unfairly targeted. Cry me a river. Colarusso's attorney willfully misrepresents the scope of the "Haul Road" proposal in the suit, claiming that they intend to simply pave the road, not expand and relocate it. It can be assumed that the misrepresentation is calculated, considering that our City Code prohibits the expansion and relocating of Colarusso's non-conforming uses: the causeway/road AND the dock. They also add a new wrinkle to their game of misdirection by claiming that the roadway needs to be paved to allow for two-way use. This is absurd, as their current road can easily handle two way traffic and is zoned for it. Colarusso's one way use is a ruse, and the City needs to grasp that the non conforming single lane causeway/road is a physical volume control. The truck number argument is not necessary if the City simply holds the company to single lane use, in two directions. The size naturally limits the amount of trips that can be made in two directions to the dock. Any hardship that the company will claim is a self-created hardship, the zoning restrictions were put in place before the Company purchased the property. Once the Planning Board attorney gets it through his head, we will all be better served.

    On an amusing note, Colarusso's attorney also claims that the Colarusso dock has been in use for 200 years. Imagine that. I look forward to seeing the missing Sanford Gifford painting that highlights a large pile of item #4 as the sun sets on the Catskills.

    1. Yes, the nonconforming use established in the 2011 zoning was a deliberate attempt to establish a physical volume control, and thus avoid any temptation or drift into the dangerous area of directly regulating a business.

      Consequently, there's nothing about "intensification" in the City Code, and thus no basis to surmise that the Planning Board has the intention of directly regulating a business. Nothing in the City Code would support that.

      I suppose the landowner got tired of waiting for the trigger it needed, so it opted to squeeze out a premature court challenge which it doesn't mind losing on the basis of a curious comment by our Planning Board attorney.

    2. In the company's long series of ever-changing Environmental Assessment Forms, the different answers to which would satisfy this or that intended recipient, the project would be given a different title nearly every time.

      The title routinely included the words "maintenance" and "resurfacing," but in one case I recall an EAF which admitted the project would "centralize" the causeway.

      Evidently, someone didn't get the message.

  3. Their claims of "further regulation" are baffling. Nothing has been proposed by the City. So much of this suit is contingent upon hypothetical outcomes, which makes it so weak. I guess they are just chaffing under the messy, civic process otherwise known as "local review."

    1. I agree that the term "further regulation" is very interesting.

      Aside from the futuristic scenario in a lawsuit premised nearly entirely on mind-reading (good luck with that), the multiple references to "further regulation" suggest that some level of local regulation is now acknowledged.

      This was not the case when the east causeway was graded and surfaced without the City's permission in 2015, nor was it true when the revetment and bulkhead work were done without local permission in 2016 as later confirmed by the Zoning Board of Appeals. (The revetment and the east causeway were given a pass by City officials who were only just discovering their courage, but that's no reason to forget what happened).

      With the appearance of the word "further" in the lawsuit, we may now infer that the company finally acknowledges the validity of existing local regulations. But which ones? All of them?

      I suppose that this suit is another example, as with every previous example, whereby the company seeks to undermine the patent meanings of our local laws. This time the landowner seeks to invalidate them, but as you say the case is premised on hypotheticals so that's probably not going to happen.

  4. Well that's news, that the company's SEQR suspicions are the principal reason for the countersuit. What a lot of stuff wrung from a single comment made by our Planning Board attorney who's been unable to collect from these people for months.

    I have no knowledge about anyone's fee structures, but unless a new SEQR review has commenced with a Lead Agency at the helm, then there's no new SEQR review underway and thus no valid complaint.

    The argument is that the Planning Board "wants" to redo SEQR on the dock. Are the Plaintiffs mind police? That's not how our laws works (not yet), and the court will reject this part of the complaint out of hand.

    As for the NYS-conducted SEQR review, in the DEC's 9/15/16 response to "almost 50 letters and/or emails received concerning Colarusso's application during the public comment period, which began on October 21, 2015 and ended on November 13, 2016," the only City officials on the distribution list were Common Council President Don Moore and Alderman Michael O'Hara.

    If the Planning Board was ever contacted by the DEC, that will be a matter of public record.

    To the sensible warning that the often-forgotten revetment project may be part of an expansion plan for additional barge moorings, the irresponsible DEC replied merely that it was "not aware of any plans for expansion at Colarusso’s Hudson River dock location." This was a lesson in itself why it's best to keep all such reviews as local as possible.

  5. In the midst of what seems to be a complex matter, let us distill this situation down to its essentials:

    ~ A rock and gravel outfit in Greenport wants two new crossings on the primary routes into the City of Hudson.

    ~ The company seeks to tear up an existing route and build a new double-wide industrial highway to allow a greater volume of heavy dump trucks to travel through a tidal marsh that enjoys Significant Habitat status.

    ~ The company proposes to remove their truck traffic from Columbia St., while stating specifically in their application that they want to retain the right to utilize that route.

    ~ The company proposes to run up to 284 dump trucks over the Broad St. rail crossing, intermingled with automobiles, bicycles, and pedestrians

    ~ And with all of these downside impacts, there are no new jobs or significant revenue enhancement for Hudson.

    So let's set aside all the acronyms, the legal wrangling, the complex structure of the review process, and the various agencies; viewed in clear and simple terms, the City is facing a ridiculous proposition that any sensible community would reject.

    1. Additionally, that existing route across South Bay which was nearly brought to completion in 2016 (short of the State-approved crossings), was the official alternative agreed to by the City and the previous landowner after a four-year SEQR review which was never acknowledged during the Town of Greenport's SEQR review - and not mentioned by the City either.

      Now six years later, all of that work is to be scrapped, silently.