Monday, January 7, 2019

Hudson Lawsuit Dismissed

Amanda Purcell reports tonight on HudsonValley360 that the City of Hudson's Article 78 lawsuit against the Greenport Planning Board, A. Colarruso & Sons, and Holcim US "to annul, vacate, and set aside the July 25, 2017 approval by respondent Town of Greenport Planning Board of a 'Negative Declaration' under the State Environmental Quality Review Act . . . for the proposed widening, relocation, and improvement of an existing 2.33 +/- mile long truck 'Haul Road' . . ." has been dismissed: "State Supreme Court judge tosses out haul road lawsuit."

The fate of Colarusso's lawsuit filed against the City of Husdon, the Hudson Planning Board, and Hudson Community Development & Planning Agency is not yet known.


  1. Notwithstanding our petition's lead argument that without Greenport's Environmental Impact Statement as guide the City Planning Board will be lost, nor the fact that more than half the petition is devoted to explaining to the court how SEQRA works (the actual catalogue of complaints is very brief), the petition's salient points were barely addressed by Greenport, such as: the priorities established in the City's Zoning Code and waterfront program; the causeway's aged and vulnerable culverts; and the segmentation of the review itself, where the road proposal was considered separately from the dock work.

  2. 1. Segmentation

    In the disputed Negative Declaration (a "Neg-Dec" is a determination whereby no significant environmental impacts will result from any project), Greenport never responded to the charge of "segmentation" pursuant to SEQRA, though admittedly segmentation was a subject of the public comments alone.

    In the City's subsequent court challenge of the Neg-Dec, the entirety of the City's segmentation complaint is found in the following sentence:

    "In conducting the SEQR review of the Project, the [Greenport] Planning Board excluded from the scope of its review other work that is proposed by Colarusso for its Hudson River dock, thereby segmenting the review of Colarusso's planned activities."

    In its response to this, Greenport acknowledged its great debt to the DEC's earlier permit review for the dock and bulkhead work, the alleged other segment missing from the required holistic environmental review.

    In a reply to the public's initial allegations of segmentation in 2015 - that it was improper to review the dock project separately from the Applicant's greater proposals - the state permitter, Trish Gabriel, claimed that she was "not aware of any plans for expansion at Colarusso's Hudson River dock location."

    But by focusing her sentence on the dock issue alone, Gabriel not only ducked the question of the greater proposal afoot, she misrepresented her knowledge of it. By the time she replied to our comments on the bulkhead a year later (quoted above), it's documented that she'd already personally toured the property to learn about the Applicant's greater proposal.

    The same timeline was presented to the same permitter in the public comments on the September 2018 Freshwater Wetlands Permit, but no defense or explanation was offered. In my opinion, this state official is either incompetent, corrupt, or both. The City should seek to have her investigated, though when the South Bay Task Force made a request to our previous mayor to seek the official's self-recusal on the above grounds, our request was ignored.

  3. 2. Culverts.

    In its response to the court petition and to our comments, Greenport accepted the applicant's own conclusion that if the culverts survived the floods of the storm Irene, then they will survive the additional weight from the undisputed increase of traffic above. This additional load refers to the exact "doubling" of the current one-way traffic, an obvious consequence of the proposal which Greenport actively led the court to conflate with the unrelated question whether or not there will be an increase of trucks overall).

    But because City engineers were barred access to the site for the purpose of inspecting the culverts, the court must be satisfied that the "hard look" required by SEQRA was primarily based upon the applicant's claims alone. What kind of hard look is that?

    While Greenport's engineer noted a lack of concern for the culverts from the US Army Corps of Engineers, in fact the Corps has no regulatory authority over the culverts, and actually did express its concern to the South Bay Task Force when we learned the Corps had no authority.

    Because the City recently missed its opportunity to challenge the demonstrably irresponsible DEC Freshwater Wetlands Permit issued for the proposal in September 2018, the Response from Greenport appears sound when it cites the DEC's permitting standards: "the agency in charge of issuing the Applicant's Freshwater Wetlands Permit, NYSDEC, raised no concerns [about the culverts]." The City cannot claim that it wasn't repeatedly warned about this by residents within hours of the permit's issuance and thereafter.

    Moreover, Greenport makes the City look ridiculous at the suggestion that the water-restricting culverts might be replaced with a box culvert despite the fact that the idea was already proposed and discussed in Hudson's LWRP (waterfront program).

  4. 3. LWRP

    When Greenport "determined that the proposed action was in harmony with the City's non-state approved LWRP," it was simply restating the Applicant's cherry-picking of our LWRP and its alleged "goals." Ditto the City's Comprehensive Plan which the City actually cited as the basis for the LWRP's two-step solution to the truck challenge - all ignored, and none of it defended. It's as if the City's years-long planning efforts never happened (ca. 2002 - 2011).

    The fact is that all of the above was explained in tiresome detail in our public comments (out-of-context selections of which are quoted in Greenport's Response to the court challenge), but the difficult and structured reasoning behind our local laws, plans, and codes was utterly obliterated for the court's understanding while the City did nothing to clarify any of it. In that sense, we deserved to lose for not anticipating the same misguided arguments we've heard for years from the likes of officials such as Linda Mussman and Carmine Piero.

    Greenport made the same disingenuous arguments and has won, while the consistent arguments advanced for years by city residents were largely ignored.

  5. 4. Zoning

    Regarding the complaint that Greenport cheated the City's Zoning Code, there are only two statements in Greenport's court response both of which merely repeat the language of the court challenged Neg-Dec. Both statements are so partial that they amount to falsehoods:

    "The haul road operation is considered an allowable conditional use under the City's Zoning Code," and Greenport "determined that the proposed project was not an expansion of current activities and therefore was allowed under the City's Zoning Code."

    Unfortunately it was only the public who addressed the fact that the causeway is additionally a NONCONFORMING USE, which should have been a court-stopper and the basis of a viable appeal if it had been mentioned. The fact that Hudson's petition failed to inform the court about the causeway's nonconforming status must be legal malpractice, except that the City itself has its head so far up its ... well, you get it.

    Moreover, in its Negative Declaration Greenport merely repeated the Applicant's claim that the proposal doesn't encroach on the surrounding Recreational Conservation Zoning District. But the degree to which the City has utterly failed its responsibility to delineate the South Bay Zoning Districts as it was requested to do is reflected by the fact that the Applicant's site plan obfuscates its own zoning boundary claims. This was achieved by switching the map's alleged zoning boundary lines between pages of the site plan, so that the boundary lines on one page meet up with fence lines on the following page. Even by its own account on the site plan, the Applicant will need a use variance in the R-C District.

    Again, these observations were all recorded in our public comments, but are seemingly beyond the comprehension of our City boards as well as the Assistant City Attorney who is at the center of all of these issues and has brought nothing but confusion and defeat from the beginning. (He should have been replaced years ago, a point I've regularly brought up with Mayor Rector who inexplicably defends the man if not the disasters he's wrought.)

    Neither the Planning Board nor Hudson's Zoning Board of Appeals should lose sight of the fact that their shared attorney is entirely responsible for the fact that the City was not chosen as Lead Agency in the SEQR review.

    In his two-page appeal to the DEC Commissioner, our Assistant Attorney explained only the following regarding the City's Zoning Code:

    "The City of Hudson has a zoning law enacted and enforced. In fact there is a special zone for the Core Riverfront District that speaks to the exact use in question and there is some debate as to whether the proposed haul road [sic] is currently in conflict with said zoning based on previous alteration/enlargement to same without benefit of review or permit from the City of Hudson."

    The reply by DEC Commissioner Seggos was itself a marvel of brevity:

    "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."

    Meanwhile, Greenport's request for Lead Agency read like a legal brief.

  6. Judge Melkonian is not unsympathetic to the arguments we should have presented, namely that Colarusso's activities and possessions are all nonconforming uses rather than conditional uses only, and that the reasoning behind the City's Comprehensive Plan, the LWRP (waterfront plan), and the Zoning Code are all mutually supportive.

    But don't just take my word for it. It's all presented explicitly along with the true goals of the LWRP in the 2011 Findings Statement for the waterfront program's SEQR review.

    Rather than make our own case, though, we allowed Greenport to characterize the LWRP for us. Naturally, the "goals" Greenport discovered in the LWRP were half-truths and fabrications, but it's all the courts had to go on.

    So how in the world did our expensive consultants fail to defend our most powerful arguments? The public went to great lengths to educate the city and its attorneys on these very issues but it was all pointless (see excerpts from our submitted comments below*).

    As for Judge Melkonian's likely support of a properly argued case, in 2010 he dismissed an aggregate miner's SEQR challenge against an Ulster County municipality that had ratified new zoning in preparation for its Comprehensive Plan. The difference in that case was that the municipality actually understood its own plans and laws well enough to present and defend them.

    Not to put too fine a point on it, Hudson lost the court challenge because this city is a loser. We never learn that experts are fallible and that the public may be better informed after all. Public comments mean nothing here!

    And where's the kind of forensic inquiry into the loss that probably only exists in this thread? (Crickets!) OMG, we're just pathetic!

    *On August 22, 2017, public comments on the above themes were submitted and then ignored by the City and its legal firm hired to file the petition against Greenport:

    "[Greenport's] EAF and the Negative Declaration are also deficient for failing to assess the comparative environmental benefits which would result from the Applicant's adherence, alternately, to the City's 2011 Findings Statement. The City's 2011 SEQR review never entered into [Greenport's] analysis."

    "One must compare the scale of the current proposal, which is contraindicated by the City's intentions as those are reflected in the Comprehensive Plan and 2011 zoning amendments, to the nearly completed "temporary alternative" from the 2011 SEQR Findings Statement."

    "It was only by virtue of ending its review prematurely that the Lead Agency failed to discover, among the reasonable alternatives to the Applicant's proposal, that the alternative most acceptable to the City, as set out in the City's GEIS and Findings Statement, is now near to completion."