In designating the Town [of Greenport] Planning Board to serve as lead agency for the haul road project, this decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies--particularly the City [of Hudson] Planning Board, and I encourage the Town Planning Board to seek and use the expertise of the City Planning Board as well as the DEC and the DOT in evaluating potential impacts, if any, and developing viable alternative to mitigate or avoid any identified significant adverse impacts.On a related theme, Sam Pratt told the Planning Board, "You don't need to be a judge or an attorney to understand that Colarusso has no "as of right" ability to do what they want to do," further asserting that Colarusso "lost any grandfathered status the moment they did unauthorized work."
When the public had been heard, board member Ginna Moore moved to close the public hearing. Betsy Gramkow argued they did not have enough information to close the public hearing, and Clark Wieman concurred. Planning Board chair Walter Chatham then said, "I think we are pushing back the inevitable. What we're coming down to is that some people want Colarusso to continue, others don't, and each group has its facts."
In the end, Moore withdrew her motion, and it was decided that before the next Planning Board meeting, which is scheduled for December 10, there would be a workshop session during which all the questions members of the Planning Board had about the project would be answered. John Privitera, attorney for A. Colarusso and Sons, said he wanted Ryan Weitz, the engineer from Barton & Loguidice who has been retained by the Planning Board, to be present at the meeting.
The Planning Board then moved on to another project of interest: the proposal to create a self storage facility at the corner of Fairview Avenue and Oakwood Boulevard. Craig Haigh, code enforcement officer, and Andy Howard, city attorney, had determined that a self storage facility was a conditional use in the General Commercial District, the zoning district in which the proposed project would be located. The Planning Board decided to refer the project to the Zoning Board of Appeals for a determination. It seemed the Planning Board was hoping the ZBA would conclude that self storage was not a permitted use or a conditional use, but instead the ZBA determined it was a permitted use requiring only site plan approval.
On Tuesday, after Carmine Pierro was allowed, during the public hearing, to make his case once again, with maps and evidence that this stretch of Fairview Avenue was a commercial area when the zoning was adopted in 1968, and Brian Nicholson was the only member of the public present to speak against the project, the public hearing was closed, and the Planning Board began its deliberations. They began by answering the eleven questions that make up Part 2 of the Short Environmental Assessment Form. To all but three of the questions, the response was "No, or small impact may occur." The response was "Moderate to large impact may occur" to these three questions:
2. Will the proposed action result in a change in the use or intensity of use of land?
3. Will the proposed action impair the character or quality of the existing community?
5. Will the proposed action result in an adverse change in the existing level of traffic or affect existing infrastructure for mass transit, biking or walkway?Initially, it seemed the Planning Board would make a positive declaration, given the board had received a petition protesting the project from "so many neighbors," and there were "so many safety issues" and "so many traffic issues." Chatham commented, "If we're trying to bring Hudson up, we have to bring all of Hudson up." The positive declaration seemed less desirable when it was realized that a positive declaration would trigger a scoping activity. Considering the impact on community character, Wieman asked, "Is this project salvageable?"
Pierro challenged the Planning Board to "make a decision now." Laura Margolis moved that they issue a negative declaration, explaining, "It's not our job to look at minutia when there are bigger issues." Pierro told the board, "If you had been smart, you would have treated this as a conditional use, but you had to send me to the ZBA." Margolis then made a motion to deny the application, which was seconded and approved. Pierro reacted by telling Chatham, "You're gonna be gone in sixty-two days," intimating that he had some inside knowledge about the intentions of mayor-elect Kamal Johnson, who is reported to have told the Register-Star that "his first move when taking office will be making appointments to boards and committees, and ensuring the qualified people are serving in the right positions." Although there are not many vacant seats on the regulatory boards, one of the things a mayor does is appoint the chairs of the Planning Board and the ZBA.
Pierro reacted to having his proposal denied in another way as well. There is now a second RV--bigger and more colorful than the first one--parked on the lot.
Despite a press release from the Galvan Foundation on October 31, announcing it had won a $1 million Buildings of Excellence Award from NYSERDA "for a planned 75-unit mixed-income and commercial development," shown in the rendering above which accompanied the press release, the person presenting the proposal for the depot to the Planning Board said there were no plans for the warehouse.
COPYRIGHT 2019 CAROLE OSTERINK
Remember that no "segmentation" was found in the Greenport review, so this latest idea that Greenport "already reviewed" this or that is a canard. The court deemed the two projects independent and wholly unrelated, each with its own impacts and each deserving of its own "determination of significicance" (i.e., Pos-Dec or Neg-Dec).
ReplyDeleteBesides which, a SEQR "lead agency" can review anything it wants to, and even arrive at a positive declaration based on its research without causing any harm to the project sponsor (see "PVS Chemicals, Inc. v. [NYSDEC]").
There is the matter of the ZBA's role, however, which the Planning Board agreed to pursue at the September meeting. As far as I can tell, the only thing that's happened since then is that the Applicant has submitted an EAF denying that zoning plays any role in its proposal.
While it's true that the SEQR review for a potential use variance was indeed conducted by Greenport (at the time, both the City Planning Board and our ZBA very actively prevented the ZBA's listing as a SEQR "involved agency," in retrospect a missed opportunity), the ZBA must still decide on a variance, and that entails its own review with non-SEQR criteria. The Applicant must check Yes on the EAF.
Similarly, the Applicant has set an arbitrary limit at the Colarusso gate near Broad Street, falsely claiming that everything from the gate to the mine was already reviewed (false, because for a different project). By that reasoning, the Applicant answered no questions about truck numbers or traffic impacts, leaving those specific questions blank.
But how can the public be aware of any of this when for 18 days the EAF has not been made available online? Nor have the Minutes been posted from September (though state law requires draft Minutes to be made available within two weeks).
Meanwhile, the ongoing Hearing gives us the impression that we're being served.
But because the draft Minutes and EAF are already in electronic form, the public is really failing itself by not demanding ready access to these critical documents.
On the zoning issue, the City of Hudson has been tricked repeatedly by the Colarusso attorney.
ReplyDeleteIn September's draft Minutes, Ms. Gramkow "ask[s] if the ZBA could look at whether its route infringed on the Conservation Zone." In support of her position, Mr. Wieman "said it seemed prudent that the Board look to the ZBA for commentary …"
"[Attorney] Howard said the Board needed to make sure that if it sent a request to the ZBA that it was clear what it was looking for …. [and] recommended that the Board hear from the applicant first. …"
"Attorney John Privitera, representing A. Colarusso and Son … [said] it was inappropriate to raise a zoning question at this point," and that "the issue cannot be raised [now] because the zoning was not challenged during the [Greenport] SEQRA process. …"
"All members of the of the Board agreed to wait for more information from the company."
While it's true that Hudson missed its chance to have the use variance be subject to a SEQR review (incredible!, except that this is Hudson), "to be granted a use variance the applicant must show, among other factors, that the variance, if granted, will not alter the essential character of the neighborhood."
"Moreover, in granting the use variance the municipality is directed to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. … Even where [a lead agency] has issued a [SEQR] 'negative determination' – [a ZBA] must nonetheless apply these same factors in its later review of the merits of the application."
https://www.dos.ny.gov/lg/publications/Zoning_Board_of_Appeals.pdf
So what was Mr. Privitera's answer to the Planning Board, that "information" which the Board agreed to wait for back in September?
It was the October EAF which answered "No" under Government Approvals at B.(c.) "City Zoning Board of Appeals."
Tricked again!, yet we never seem to tire of this in Hudson.
I wonder who else will be persona non grata I can certinaly nominated 1, who
ReplyDeletecalled at 3 separate meetings to close the Public hearing. Now there is someone who has Hudson best interest on the table. MOTION DENIED.
"[EAFs] are considered public documents, and as such, must be made available for inspection at each involved agency" (NYS SEQR Handbook).
ReplyDeleteAfter nearly 3 weeks, it's safe to conclude that the Planning Board refuses to make the fantasy-filled Colarusso EAF available online.
Why else except to obstruct public scrutiny of a public document? The lapse is intentional, and may be intentionally stifling dialogue.
1.
ReplyDeleteIf one had the time and perseverance of most mine owners, and also plenty of resources, how would you circumvent a Zoning Code?
Because our Zoning Code doesn't distinguish between conditional uses, or not for procedural purposes, it's instructive to see how the same project sponsor answered a series of EAF's (environmental assessment forms) according to context, always maximizing its own advantage.
In the EAF of July 20, 2015 (for the bulkhead and revetment), the project sponsor claimed that the proposal was a "permitted use," although years later Ken Dow would argue successfully for the city that a conditional use is NOT a permitted use.
Colarusso's first EAF for the road proposal was dated April 27, 2016, and like the previous EAF was prepared exclusively for state and federal agencies. (Actually, the US Army Corps of Engineers determined that it had no regulatory authority, which somehow entitled the landowner to claim ever after that the Corps' had "approved.")
It was this same April EAF which first claimed that the "relocation of an existing roadway [is] a permitted use under the zoning regulations."
Only days later, a second EAF was prepared for parties unknown, and was more detailed. Dated May 3, 2016, this EAF asked if the proposal - the new road - would be "located in a municipality with an adopted zoning law?" The project sponsor answered "No."
On May 17, 2016, in yet another EAF prepared this time for a city Planning Board "site plan review," the sponsor did implicitly acknowledge the existence of a Zoning Code, but maintained that the action was "a permitted use under the zoning regulation."
It wasn't until the EAF of August 16, 2016 that the Colarusso company first acknowledged the existence of a Zoning Code in the City of Hudson.
2.
ReplyDeleteBut in all that time see what the landowner had gained!
Between the first EAF for the road in April 2016, and the last EAF dated March 28, 2017, the project sponsor consistently denied any need to amend a "local law, ordinance, rule or regulation" in order to enable the proposal.
As the state's Full EAF Workbook make clear, the EAF question about amending ordinances applies to use variances.
Throughout that entire period, the South Bay Task Force consistently argued the need of a use variance, but no EAF ever acknowledged the potential involvement of the Zoning Board of Appeals. The city attorney then advising both the ZBA and the Planning Board (initials MK) agreed with the landowner, and that was that. The ZBA kept its distance, refusing to be listed as a "SEQR involved agency."
(The sponsor's attorney, Mr. Privitera, is correct about one thing: that the otherwise required SEQR review for a use variance is no longer available to the city, which is THE MOST EGREGIOUS dereliction of duty I've ever witnessed in Hudson.)
Interestingly, though, in a letter of August 2016 to the Greenport Planning Board, the sponsor's engineer announced that the city's Zoning Districts had now been added to the site plan. This means that the answers to the last two EAFs were based on the engineer's assertions about the district boundaries, which has everything to do with potential variances.
To this day, however, none of the multiple new lines and symbols added to the plan in August 2016 have been identified by the project sponsor. Without further information, I defy anyone to say what these added lines mean. (One of the lines actually turns into a previously identified "silt fence" when you turn the page to the adjacent map location.)
As W.C Fields said, "A thing worth having is a thing worth cheating for."
Which reminds me, why hasn’t the latest EAF been posted at the city website yet? That's a Planning Board decision, and it stinks as badly as everything else I've written above.
3.
ReplyDeleteIn April 2017, the NYS SEQR Analyst (JE) confirmed with DEC counsel that Greenport's failure to list Hudson's Zoning Board of Appeals as a SEQR "involved agency" - and the ZBA's failure to request it - would end the environmental review process for required variances.
The South Bay Task Force immediately shared this information with the ZBA and with the Greenport Planning Board. As a matter or record, nobody from Greenport ever contacted any Hudson official about potential ZBA involvement, and the only reply from the city was from the ZBA-and-Planning Board attorney (MK) who only asked "What's a 'SEQR Analyst?'"
In July 2017, the Task Force made a last attempt to sway the ZBA, reminding its Chairman in a letter that "variances are manifestly a SEQR matter," and that ZBA involvement in the Greenport Planning Board's SEQR review could be "achieved in a single sentence conveyed to Greenport."
Fast-forward to the September 2019 meeting of the Hudson Planning Board, where the Applicant's attorney stated very simply what the Task Force was unable to explain to anyone two years earlier: "The issue cannot be raised now because the zoning was not challenged during the Town of Greenport's SEQRA process."
The ever-patient Applicant is wiping the floor with us, turning the self-importance and incompetence of our Boards to its own advantage. And who can blame them for exploiting our own stupidity? I certainly don't!
But there's still a variance process to be gone through, and with sundry quality of life issues to consider much of that process actually overlaps with SEQR.
4.
ReplyDeleteIn June 2018, initiated by a request from the Task Force, the ZBA affirmed in a Resolution that the City's "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."
So where do things stand now with the ZBA, and with the invariable need for a use variance when it's discovered that the proposed road traverses the R-C Zone, the Recreational Conservation District?
In September, "Mr. Privitera asked the [Planning] Board to hit the pause button on a ZBA referral" (draft PB Minutes; not available online).
Further, "[Mr. Privitera] pointed out that a violation of an easement through a wetland would come into play."
(In fact, the alleged conservation easement to which he was referring is a total fiction fabricated by the landowner. There's no third party involvement by any outside organization as required by law, not Scenic Hudson and not the Columbia Land Conservancy. It's made up, but in Hudson it does the job.)
Lastly, "[Mr. Privitera] asked that the company be given a chance to put together information."
And the response from the Planning Board? "All members of the board agreed to wait for more information from the company."
That information was since received with the latest EAF, dated October 31, 2019 (also not available online, inexplicably).
The company's "chance to put together information" for the Planning Board consists of ticking the wrong boxes at three questions: C.1., C.3.a., C.3.c.
I have to hand it to Mr. Privitera. He has a far better understanding of his adversary than his adversary does of itself.
I've been informed that the online posting of documents by the Planning Board is up to date, but where are the September Minutes?
ReplyDeleteMore recent Colarusso documents are not filed under "Documents," but under "Current Applications."
But by making this distinction, even in its filing system the Planning Board is reinforcing the Applicant's claim (alarmingly seconded by the Board's own attorney and engineer) that none of the considerations which applied to the Greenport review apply to the current application.
In fact, most of what was discussed at Greenport and was always filed under "documents" is relevant to the current review.
That's the argument and the battle which the public must win. If a SEQR lead agency can arrive at its determination of significance any way it pleases, then all of the documents pertinent to the applicant's plans should be presented together.