Wednesday, August 14, 2019

Of the Planning Board and 4.4 Waterfront Acres

Last night, the performance hall at Hudson Hall was the scene of the Planning Board meeting. Although there was other business on the agenda, the reason most people had shown up was the continuation of the public hearing on Colarusso's applications for two conditional use permits--one for its dock activity, the other for its industrial road through South Bay.

Of the fifteen people who made statements during the public hearing, fourteen expressed concerns about Colarusso and its negative impacts on the city and the waterfront and urged the Planning Board to make a positive declaration and do a full Environmental Impact Study under SEQRA (State Environmental Quality Review Act). Several speakers quoted the City's LWRP and made reference to the decision by Supreme Court Justice Michael Melkonian at the beginning of this year, dismissing Colarusso's lawsuit against the City of Hudson. 

The lone defender of Colarusso, Dominick Kappel said he had done his own study of trucks at Third and Columbia streets and reported that only 198 of the 268 that passed there were Colarusso trucks. (He didn't indicate the time frame for his observation.) He called on the Planning Board to "approve the road" for safety reasons and concluded by declaring: "Colarusso has been here for a hundred years and will stay here for a hundred years." Later in the hearing, he claimed that "Colarusso secured that $10 million DRI grant." 

In his comments, Sam Pratt made the point, as Gossips did in a post last week, that nothing was preventing Colarusso from building its industrial road from Route 9G to the quarry and getting trucks off city streets now. Gossips said the City was being bullied. Pratt pulled no punches and called it "blackmail." Pratt challenged Paul Colarusso, who was in the audience: "Do it tomorrow if you really want to help Columbia Street."

In her comments, Melissa Auf der Maur brought up a topic that we have heard very little about in the past six years: the 4.4 acres south of the dock, which were transferred illegally in a land swap in 1981 between the City with the cement company that became Holcim and which therefore still belong to the City of Hudson. Speaking of this parcel of land, Auf der Maur declared, "The City owes it to its people to provide access to the waterfront."

This parcel has a long history that some may have forgotten and others may never have known. The 1996 Vision Plan imagined a use for the land south of the dock and suggested the City "try to secure an easement for bicycles and pedestrians on the existing road to allow access to the southern open space and South Bay" and also made these recommendations: 
Southern Open Space  This area consists of two land projections into the Hudson River. It is bordered by the rail lines to the east and by the Independent Cement Company to the north. . . . Potential uses of this would include leaving the land as open space. There also may be the opportunity to encourage fishing along these edges. A second alternative would be to provide a boat ramp in the existing embayments. Another alternative may be to create a boat ramp at the southern land projection with limited parking at that site. . . . 
Hudson's Local Waterfront Revitalization Program (LWRP), adopted by the Common Council in 2011, proposed for this site what it called the South Bay Riverfront Park/Beach.

The park envisioned for this parcel is described on page 133 of the LWRP:
An opportunity exists to establish additional park land on the southern portion of the Holcim property. The approximately seven acre vacant property offers two tidal basins including a small beach area, existing woodlands and over 1,500 feet of riverfront. These features combine to make this a potentially significant open space and recreational asset for the community. Subject to a feasibility study including an assessment of whether contamination exists on the property, the LWRP envisions creation of a park for swimming, fishing, and passive recreation opportunities, in addition to hiking, biking and nature trails. . . .
Page 128 of the LWRP acknowledges, "Creation of the South Bay Riverfront Park . . . is dependent upon obtaining some form of title or ownership to the approximately 7 acres of riverfront land owned by Holcim and located south of their port."

The LWRP was adopted by the Common Council at the end of November 2011, and for the next couple of years, city government seemed to be devoted to getting those seven acres, which turned out to be closer to ten acres--9.96 acres to be exact. The people of Hudson were given to understand that acquiring that parcel was a condition for the Department of State to review and approve the LWRP. In September 2012, Mayor William Hallenbeck, in an interview on WGXC, reported that Holcim was weighing its options, which included selling the parcel to some entity other than the City of Hudson. Hallenbeck also said the City was considering taking the parcel by eminent domain. In February 2013, the Common Council passed a "Resolution Authorizing the Transfer of Riverfront Land to the City of Hudson."
The Mayor is hereby authorized and directed to enter into all documents and contracts necessary to effectuate transfer of the Parcel and related easements to the City of Hudson upon review of said documents by the Corporation Counsel, and to provide documentation for a tax credit to Holcim for transferring the Parcel as a gift to the City. 
Although the City was ready to enter into an agreement, Holcim was not. The contract had been prepared, by Holcim's own attorneys, but Holcim was not signing it. In April 2013, the Council passed a resolution rescinding the February resolution if Holcim did not sign the documents transferring ownership of the property by May 15, 2013. That didn't happen, and an email from then city attorney Cheryl Roberts to Holcim attorney Donald Stever, sent on January 30, 2013, secured in a FOIL request by The Valley Alliance, revealed why. On the topic of the land transfer, Roberts wrote:
The City is prepared and will move forward with eminent domain proceedings at its February meeting unless your client is prepared to move forward with this transaction. The City may also be prepared to meet with the private entity to whom Holcim is selling the property and Holcim if such a meeting would be of assistance.
Then on June 3, 2013, The Valley Alliance announced a surprising discovery: the City already owned 4.4 of the 9.9 acres it was negotiating with Holcim to acquire.

In 1981, the City of Hudson had swapped the 4.4 acres on the waterfront for an upland parcel owned by the cement company, and that exchange had been in violation of General City Law § 20 (Chapter 247 of the 1913 Laws of New York), which bars the alienation of waterfront lands: "the rights of a city in and to its water front, ferries, bridges, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places, are hereby declared to be inalienable."

The discovery was greeted with skepticism, and the City spent several months vetting The Valley Alliance's research. But on October 15, Moore announced that the title search commissioned to test the veracity of the assertion confirmed that The Valley Alliance was right: the City was negotiating with Holcim for land it already owned. Moore's statement was reported by Gossips the next day and recorded in the minutes of the Common Council.

Now, the skepticism seems to have returned. Last night, responding to Auf der Maur, Walter Chatham, who chairs the Planning Board, said, "This board cannot address the issue of ownership." Chatham claimed the board had no proof to support the claim that the City still owned the 4.4 acres. Planning Board member Laura Margolis asked, "If we have no proof, can we send someone out to seek the proof?" At which time, Pratt interjected, "The Planning Board has received a lot of information about the 4.4 acres." 

Among the information in the Planning Board's possession is a memo dated August 11, 2019, from former city attorney Ken Dow, which states, among other things, the following:
When a municipal transaction such as this is void because it was outside of the authority to act, it cannot be made valid, ratified, or its purpose achieved by subsequent action or failure to act. Moreover, there is no time period after which a void action becomes effective.
Dow cites case law to support this. His memo concludes:
I believe that the Planning Board would be making a serious mistake to proceed on the basis of Colarusso's ownership of the 4.4 acres. The status of this parcel is fundamental to evaluating the dock operations' impact on "adjacent properties". . . . It is crucial that the Planning Board get this right.
On Tuesday night, it was decided that the public hearing would be kept open for both written and oral comments. When Karla Roberts asked what "new stuff" the board might need to make its decision, Chatham quipped, "A deed that shows the City owns the 4.4 acres."

The next meeting of the Planning Board is scheduled to take place on September 10 at 6:00 p.m.


  1. The strange thing about the 4.4 acre issue is that Hudson city officials have shown zero interest in asserting ownership. Any other town on earth would be delighted that citizens went the to the trouble to reveal that the community actually owns a parcel of significant and beautiful waterfront acreage. Something stinks here...

  2. One of the reasons the 4.4 acres is important is that ownership of that parcel would make the City of Hudson an adjacent landowner to Colarusso to both the north and south. Thus, matters of pedestrian and vehicle access to the parcel need to be addressed as part of the Conditional Use Permit application. And those additional acres mean that the City has even more exposure to the downside impacts of the Colarusso gravel dump and truck route.

    If the Planning Board refuses to confront the issue of the 4.4 waterfront acres, then the entire review will be at risk. If there is litigation subsequent to this review, the plaintiffs will surely make it clear to the court that the permit application process continued in spite of the fact that voluminous evidence was presented to the City that the applicant didn't even have clear title to the acreage that they purport to own.

  3. As I understand Ken Dow on the illegitimate sale of the 4.4 acres, it's as if the transaction never happened. Thus if the sale was null, then the deed sought by the Planning Board is the same 1969 deed from Lone Star Cement to the City which remains valid today.

    By now the extant deed to the 4.4 acres is in everyone's possession. It is certainly in the mayor's possession and has been for some time, along with the deed's statement of the owner's "right, title and interest in and to the right of access to the said [4.4-acre] Dock Property from the public way" (Liber 453, p. 16).

    Note that the access road to the City property is "the public way."

    Perhaps our "public way" was what the lawyers had in mind when, in 1995, the Consolidated Rail Corporation and St. Lawrence Cement updated their shared Easement and Right of Way deed for the access road, granting "permanent easements of, in and to the following: (1) A non-exclusive surface easement and right of way easement in common with Grantor, its successors and assigns and others, for vehicular and pedestrian ingress, egress and regress on, over, across and through [the easement areas]" (Liber 787, p. 228).

    After emailing the above passages to Mayor Rector on more than one occasion, I never got an acknowledgment that he either read or understood either deeds' legal implications, if any.

    This is why it's so worrying to learn that the mayor is now in negotiations with CSXT agreeing to the extent of fencing the City will accept when the railroad attempts to restrict downriver access below the Colarusso yard. The matter was discussed briefly at Tuesday's meeting of the DRI committee.

    Residents must push back on all fronts, beginning with the "No Trespassing" sign CSXT erected at the access road next to the Colarusso gate. If the two deeds mean what they seem to mean, then CSXT is restricting us from public property and any member of the public may be jailed for walking on public land.

    Is Mayor Rector negotiating away our rights? For that matter, what ARE our rights? An explanation is long overdue as these issues now reach a critical stage.

  4. Most of the speakers need to get their head out of the stone dust.Colarusso are no going to shut down because you dont like them. Yes there are serious issues to resolve ,like the new road proposal. Well that not going to happen.Use existing road, 1 lane traffic in both directions.As for the dock expansion,keep that on hold. Why is the Planing Board so hostile to the people who spoke. 3 min .South Bay Task Force has it right the ZBA need to deal with this issue

  5. At some point the Planning Board must address its apparent intention to usurp the authority of the Zoning Board of Appeals (ZBA).

    This proposal is a matter for the ZBA first. That is the proper sequence.

    Look at the Zoning Map yourselves and note that the existing road already traverses the Recreational Conservation District (R-C) where the road joins South Front Street.

    Incidentally, last year the ZBA determined that "the current Zoning Map authorized under the City Code depicts the actual boundaries of all the district zones and that the C-R and R-C Zones are so included" (ZBA Resolution, June 6, 2018).

    Here's a detail of the Zoning Map, though of course it does not show what's now merely proposed:

    The proposed road also deviates from the Core Riverfront District (C-R) for more than half its length in South Bay. Following is a map overlay using the site plan, a satellite photo, and the Zoning Map, each perfectly registered to the other:

    How can the Planning Board not see what anyone else can plainly see?

    The Planning Board members must understand that any determination they make prior to the ZBA's review will be susceptible to an Article 78 challenge for a violation of lawful procedure and an exceeding of the Board's jurisdiction having usurped the authority of the ZBA.

  6. Unheimlich is right. Mayor Rector needs to pay attention to the extant deed from 1969. And so should Walter Chatham. It is time for a refresher course in the history of the waterfront for both these gentlemen before any further decisions are made by the Planning Board, Zoning Board or Common Council. The people are speakin, (and digging, and researching and pointing out) - for goodness sakes pay attention.

  7. Man Bites Dog--

    The problem is that the Colarusso gravel dump and truck route are imposing a huge amount of downside on the City of Hudson, and no economic upside. We're getting crapped on and not being compensated.

    1. As I understood the comment, Man Bites Dog is well aware of the downsides but also accepts that the shipping of aggregate by barge isn't going away anytime soon.

      Q: How to resolve these "serious issues … like the new road proposal"?

      A: "Use existing road, 1 lane traffic in both directions."

      What else is there but this single policy which the Common Council adumbrated in the 2011 waterfront program.

      Otherwise, any notion of driving away the landowner is a dangerous, misguided fantasy driven by presumption and enthusiasm and bound to end in disaster.

  8. Who says Colarusso is going to “shut down” if they can’t access the dock? They existed for almost a century before ever getting use of the dock. They received over $100 million in State contracts since 2006, almost none of them making use of the dock. According to their own website, their main business is fixing and paving roads.

    Man Bites Dog is making a false and misleading argument. This review is not about Colarusso’s survival; it’s about the City’s future and best interest.

    1. Hunting unicorns invites unforeseen hazards.

  9. "title or ownership to the approximately 7 acres of riverfront land owned by Holcim and located south of their port."

    Over in the second ward, lands formerly underwater had to be granted to the city with letters patent, because the first City grant ended at the high water line, south of the "New Road" before it was unlawfully filled in. The original high water mark in the south bay was 3rd street.

    Find a corrupt attorney to move the HWM forward and fill, it's only incrementally unlawful but eventually the city fills its insatiable appetite for more land to tax.