Saturday, April 13, 2019

Colarusso and the Planning Board

The Planning Board seems to have entered a new era of detente with A. Colarusso & Son. At last Tuesday's meeting, Planning Board chair Walter Chatham opined, "If the public had the use and enjoyment of the wetland, it would be a good thing." Paul Colarusso responded, "Our primary concern is to do our business there. Beyond that, we are open to any ideas." Among the ideas put forth by Chatham and Planning Board member Betsy Gramkow was improving the appearance of the abandoned cement silo and of the rare industrial building with concrete buttresses, now commonly referred to as the "salt shed." Chatham also expressed the opinion, based on his research, that "paving a haul road is better than not for dust issues and environmental issues."

As Gossips has reported before, there are two issues involving Colarusso before the Planning Board: the repairs already made to the dock without obtaining the required permits from the City of Hudson and the proposed changes to haul road through South Bay. The former--the dock--was the subject of a lawsuit brought against the City by Colarusso and dismissed by acting Supreme Court Justice Michael H. Melkonian in January. The significance of that judgment and the conditions the Planning Board is allowed to impose on Colarusso still seems to be a matter of debate. 

Colarusso's lawsuit against the City, which was dismissed by the court, challenged the determination that making unauthorized repairs to the dock ended the grandfathered nonconforming use status of the dock operations and triggered the need to seek a conditional use permit from the Planning Board. The lawsuit also sought relief "regarding a laundry list of complaints." Those complaints--eleven of them--were enumerated in Footnote 1 of the decision. (The "respondents" are the City, the Planning Board, and the Hudson Development and Planning Agency; the "petitioners" are A. Colarusso & Son and Colarusso Ventures LLC.)
  1. vacating and annulling respondents' determination to conduct a second SEQRA review of the Erosion Repair Project;
  2. prohibiting respondents from imposing excessive fees on petitioners in connection with respondents' review of the Erosion Repair Project;
  3. prohibiting respondents from imposing excessive fees on petitioners in connection with respondents' review of the Truck Traffic Diversion and Haul Road Improvement Project;
  4. prohibiting respondents from further regulating the intensity of petitioners' use of their commercial dock and haul road;
  5. vacating and annulling respondents' determination that petitioners require a development permit pursuant to Chapter 148 of the Code of the City of Hudson before they may resurface their haul road;
  6. declaring that neither the City nor any of its Boards or Agencies, including respondents, may in any way regulate interstate commerce by decreeing any limit upon the number of trucks that may travel by any route between petitioners' Greenport quarry and petitioners' dock on the Hudson River;
  7. declaring that respondents lack the power or authority to recommence SEQRA review of the Erosion Repair Project;
  8. declaring that the fees demanded by respondents in connection with their review of the Erosion Repair Project are excessive and unlawful;
  9. declaring that the fees demanded by respondents in connection with their review of the Truck Traffic Diversion and Haul Road Improvement Project are excessive and unlawful;
  10. declaring that petitioners' use of their commercial dock is permissible under the Code of the City and [sic] Hudson and that respondents may not lawfully further regulate the intensity of such use;
  11. declaring that petitioners' efforts to resurface their haul road are not subject to floodplain review pursuant to Chapter 148 of the Code of the City of Hudson.
At the March Planning Board meeting, board member Clark Wieman suggested that Footnote 1 outlined what the legal decision empowered the board to examine and described it as a "road map for conditions we can impose." When Wieman repeated this sentiment on Tuesday, John Privatera, attorney for Colarusso, corrected him, asserting that Footnote 1 was simply a list "of what the court declined to address." City attorney Andy Howard said he wasn't aware that the significance of Footnote 1 was an issue and indicated he needed time to consider it. Chatham then remarked, "We are going to do what things we can do to mitigate this use on the waterfront." He went on to talk about the "need to focus on quality of life issues" and reiterated, "The board is going to do everything it can to make this a win for Hudson." It remains unclear what constitutes "everything it can."

On Tuesday, Wieman suggested that the Planning Board should go through the legal decision "line by line" to see "what it clarified relative to board's role." Had this been done, attention might have been paid to this statement on pages 7-8:
Here, respondents rationally concluded that the erosion repair project was one of the "actions of events specified in Section D" [of City Code §325.17.1] triggering the termination of petitioners' right to continue to operate the commercial dock without conditional use permit and the SEQR review for continued commercial dock operations is necessary.
And to this statement in Footnote 3 on page 5:
The rational [sic] of this zoning ordinance (according to respondents' counsel) was that "it allows the dock owner & operator (Petitioner since 2014) to carry on its commercial dock operations as such operations existed in 2011, as a nonconforming use, as long as the owner/operator did not seek to make improvements, expansions, or changes. As soon as the owner/operator sought to make an improvement, enhancement, expansion, or change, the right to operate as a nonconforming use ceased."
The Planning Board has not yet granted a conditional use permit, which seems to be a requirement for the continued commercial use of the dock, still there has been no cessation of use since the decision was handed down in January. The picture below was taken just this morning.



  1. 1.

    Chairman Chatham pronounced that residents can expect a Public Hearing, but that is all. We will not be heard from otherwise.

    Veterans of the South Bay wars recall other occasions when the public was basically silenced. For the small relief it gave this or that official, each instance disadvantaged the city and the bay in the end.

    Hudson's past is littered with officials for whom restraining the public was a default, even to the point of belligerence towards speakers at required Public Hearings.

    It was at just such a Hearing for the creation of the Core Riverfront Zoning District (C-R) that residents warned about the ensuing mess we should all expect, and also the inevitable lawsuits. At that Hearing we were finally able to convey our warnings after being silenced for more than a year, but the occasion proved meaningless. Under Council President Moore's iron rule the Aldermen had already incrementally committed themselves to Code language which was beyond their comprehension.

    The Zoning Code was amended within minutes of the Public Hearing.

    Now draw a straight line from that Public Hearing to the mess we're in today. We're talking about the C-R District's same ambiguities having now cost the Planning Board, the ZBA, and the public a mountain of grief in the intervening years. These were some of the same issues we warned about at the Hearing but were never permitted to voice in previous Council meetings.

    I'm sorry DM, but sometimes you must own the failure. Aside from the required Public Hearing, you cut the public out. My refusal to let go of this must be the least of unhappy consequences.

  2. 2.

    In today's world, if you're a city official and a recent arrival in Hudson then the foregoing history may suggest hazards wherever government holds itself to a tight circle of overseers. How to escape the privilege of the inevitable blinders by further limiting the public one ostensibly serves?

    The Chairman of the Planning Board, a newcomer, is falling back on the same old default: that the public is scary and cannot be trusted. But this Planning Board isn’t knowledgeable enough not to need the public, as demonstrated last year in a cluster of unreported blunders (a conflict of interest among them) and again on Tuesday when the Board seemed unprepared. Even the statement about paving was a blunder, completely adrift from the conversation about paving several of us have conducted for years.

    For a better image of public service, consider the previous Planning Board Chairman Tom DePietro. He didn't always field questions from the public, but even when that was disappointing to us we knew he was making a situational call. The public learned to trust his prudence (and it takes prudence to recognize prudence), and with prudence as our watchword prudence prevailed.

    In such a small municipality as ours, to relegate the public's contribution to the Public Hearing is unnecessary and unwise. Even worse, it may end up creating the next mess for the next batch of newcomers to work out.

    We've been through all of this before.

  3. Unheimlich, you are exactly right. It is so tiresome to hear these same old discussions time and time again and the see the default decisions. Get up to speed people and look at the history. And thank you Gossips for the report. Without you and Unheimlich the public would mostly be in the dark going about their merry way.

    1. Tiresome is exactly right.

      The subject of this post - ongoing operations despite the apparent cessation of that right - is a good example of something that's 100% publicly driven, from the actual consequence of the court decision (which the Planning Board failed to address 3 days earlier) to the investigation and documentation of the ongoing use.

      This is the same public that's been silenced by the same Planning Board.

      That said, since the current story broke other city officials have begun their own inquiries. That being the case, it's time to shift our thanks to the more responsible actors in city government of which we probably have more than ever before.

  4. ( a conflict of interest among them ) Please and explain this comment. Is some member of the board playing both sides of the haul road?

    1. Yeah well, that's all in the past now.

      At the time, though, what rankled most was the haughtiness and disdain of these people who were all proven wrong in the end by the County Board of Ethics.

      Had a single one of them to come forward to say, "Sorry, you may be very unlikeable but you were right," then I'd permanently put the memory behind us.

      What do they do instead? Place further limits on the public concerning an issue of great importance of which they know precious little.

      The poet Wallace Stevens had a great line which seems to me to apply, "The idea of things for public gardens,/ Of men suited to public ferns ..."

      On this issue anyway, the Planning Board needs to get over itself.

  5. There isn't nearly enough due diligence with our present planning board. They mean well, but there is a whole lot that falls through the cracks. Nobody wants to sit through 3 hour meetings, but in order to cover all of the bases properly, they really do need to listen to the public, who, more times than not, know all of the facts, or at least many of the facts that the Planning Board is unaware of and NEEDS to know.

    1. Your comment is fantastic: the public knows more about the "facts" than the Planning Board members so the PB members should listen to the public -- but the PB members are part of that same "public." Can you make your statement make sense? I can't.

    2. I can.

      The moment a member of the public is elevated to a Board or Council, they're set apart structurally inasmuch as they'll exercize powers that their neighbors cannot. It follows that they'd be set apart socially too.

      It's not something that they do themselves, but something the situation produces, and nearly requires, for all involved.

      It would be desirable if the case was otherwise, but what would be fantastic is imagining the world any other way.

    3. It must be the top hats and sashes they wear that leads to their social exclusion, I guess. I always forgot to wear my regalia when I was an elected official. Might explain why I was as social before and during as after my tenure.

    4. Excepting those who were already friends, as soon as a volunteer official has the police power to back him up a natural, fully reciprocal relationship will probably have less of a chance of forming, sash or no.

      For the free public, when an adversarial stance with any government volunteer is unavoidable, then the circumstances expose the inherent disparity in their respective powers. I cannot eject a Chairman from a meeting however much I'd like to.

      Citizens enjoy their own kind of power, though, and may respond to alleged abuses of government power through the press and/or the courts. Indeed, they often do.

      But if the exclusivity of government officials is forever structural in nature, that doesn't necessarily make it deliberate. It's good to resist this built-in proclivity perhaps by acknowledging it openly.

  6. The best thing the Planning Board can do is rely heavily on professional consultants. Given that there are two municipalities, two highway crossings, a passage through a wetland, a dangerous rail crossing, NY SEQRA law, City Code, and multiple impacts on the City of Hudson, the best approach is to bring in the pros.

  7. "ended the grandfathered nonconforming use status of the dock operations and triggered the need to seek a conditional use permit from the Planning Board."

    The continuous historic use is "allowed" for the Lilly White Riverfront Project over in the first ward?

    Why are there so few "continuous historic" users in the 2nd ward?

    It's time to meet, down by the river.

    Columbia Littoral Conservancy, Inc.