What Happened During the Work Session
Gossips promised to report about what happened during the Planning Board "work session" that caused so much dissension on Tuesday night. Much of the discussion focused on truck count--data that the Planning Board has been trying to get from Colarusso since 2016. Colarusso maintains that 284 truck trips (142 round trips) seven days a week is the maximum. According to Ryan Weitz, the engineer from Barton & Loguidice retained by the Planning Board, that number is a "theoretical count" based on the projected number of barges arriving at the dock.
The Planning Board is loath to approve the maximum number of trucks and wants data on the actual number of trucks making the trip from the quarry to the dock every day. Planning Board member Laura Margolis declared that trucks at peak consistency--one every two and a half minutes--"will ruin our city." John Privitera, attorney for Colarusso, told her, "The court found it would not ruin the city." Privitera then asked, "Is it the City's position you can revisit the truck traffic in SEQR proceedings relating to the dock?" He asserted that the SEQR review done by the Greenport Planning Board was "for the Greenport and Hudson portions of the haul road." Weitz concurred that "the haul road SEQR covered trucks to the dock." Planning Board member Clark Wiemen disagreed, maintaining that the Greenport SEQR stopped at the end of the haul road." Privitera contended, "The court found it went all the way to the dock."
Pat Prendergast, engineer for Colarusso, reviewed the annotated aerial image of the dock prepared by Sam Pratt and explained the use of the twenty-six items on the dock identified by Pratt. It seems a few of them have no use and are simply vestiges of earlier uses of the dock--when it was part of a cement plant (stock house and silo) and when it was used for receiving and storing salt (scale, office, and lime pad).
As the time approached 9:30 p.m., Margolis suggested the board needed "another day dedicated to this." Pratt urged that "representatives of stakeholders and groups have a seat at the table," mentioning specifically The Valley Alliance, Basilica Hudson, and Our Hudson Waterfront. Justifying his request, Pratt told the board, "You're being lobbied by Colarusso." Timothy O'Connor opined, "The Planning Board has a lot of work to do before this work session can continue." Members of the board seemed to think that the work session with Colarusso should continue at a later date and be followed by a similar meeting with the advocacy groups.
What was decided on Tuesday was that there would be a special meeting on Thursday, January 9, at a location yet to be determined, to continue the work session. With the resignation of Chatham and the possible appointment of three new board members in the new year, it is not clear if the plan for a special meeting will be pursued.
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What the Melkonian decision doesn't say is what the Board's advisors are now claiming, that the imminent SEQR review shall be confined to the Colarusso dock.
ReplyDeleteThe city engineer, whose hiring we now regret, reinforced the Applicant's opinion that the EAF traffic questions aren’t applicable because once inside the Colarusso gate the company's trucks don’t come in contact with the public. Questions like: "Will the proposed action result in a substantial increase in traffic?"
In support of this voluntarily constricted reading of SEQRA, the Planning Board attorney insists that no topic already considered in Greenport's environmental review can be a part of Hudson's forthcoming review.
Notwithstanding the fact that the previous review was for a totally unrelated project (c.f. Melkonian), the Planning Board cannot be sued for pursuing inquiries it deems relevant to the present review. Members can ask any "reasonable" questions they wish, even if specific answers to their specific questions lead to a positive declaration and thus a more thorough analysis of those same issues.
This less confined SEQR framework is found in case law, but not in the DEC's "The SEQR Handbook" (see "PVS Chemicals, Inc. v. [DEC]").
https://casetext.com/case/matter-of-pvs-chemical-v-nys-doec
So if the Planning Board's advisors are tying the Board members' hands unnecessarily, what does that say for its Chairman's "carefully considered set of legally defensible conditions"?
It tells me that the outgoing Chairman's first line of defense was to throw in the towel, evidenced by his longtime inclination to always start by considering "acceptable 'mitigation[s] of negative impacts.'”
The Chairman insists that this is a proper and "realistic" approach to risk assessment, but what's realistic about the voluntary restrictions adopted by the city attorney and engineer? If the Board members' questions must honor the premise that certain topics are off-limits - even if they can't be sued for making process decisions based on the answers! (PVS v. DEC) - then how does that help the Board decide what's best for "the health, well-being, and safety of the city," to borrow the Chairman's words.
By granting that "all of the questions that are necessary" are now essentially circumscribed by the Applicant's answers to the EAF questions, the Planning Board is now more than halfway to losing control of this process.
The Planning Board is not asking the right questions of its own advisors, and the Applicant - like any applicant - will seek its advantage in the ensuing confusion.
If you ask me this whole process is such a waste of time. It is a simple choice, either the people want the gravel transfer station and the trucks or they don't. If they don't then the property should be taken via eminent domain, pay them what it's worth, deduct the cost of remediation since the soil is compacted and destroyed and most likely contaminated from a century of industrial use. A good start would be to have the property tested for contamination and condemn those two rotting industrial structures and have them demolished and removed. Case closed, or you could go on talking about it and having meetings for another decade or two.
ReplyDeleteBeen there, done that (2011). The failed dream of eminent domain cost us the public's limited attention span for the actual process at hand (SEQRA).
DeleteYou identify the policy dichotomy from the local angle perfectly. There is another aspect of this particular use of the river that will come in to play for sure in the event condemnation is commenced: the state's public policy in favor of moving really heavy things by water rather than road. Among these really heavy things is aggregate of the type shipped from Hudson. Condemnation, of course, has to be undertaken for an articulated public use of the property to be taken -- if the articulated use is trumped by Albany . . .. Never dull.
DeleteWhat a rodeo. I feel for Walter Chatham. He is trying to balance the demands of 2 actors (ACS and all the advocacy groups) neither of which is behaving as if they really care about the future of the people who live here. ACS can surely be more open with its data and could be using the haul road today -- but they choose to stonewall and use the truck traffic as leverage. Not very productive. But equally unproductive are the advocates -- local and otherwise -- who are unyielding in their desire to remove ACS from the waterfront and the city completely but aren't willing to do it through established channels: via condemnation. Rather, they seek a CUP so restrictive that it would likely lead to a claim of regulatory taking regardless -- dropping the City and its tax payers right in the soup.
ReplyDeleteIt will be interesting to see what develops. And by interesting, I mean entertaining. And by entertaining, I mean shake-your-head-in-disbelief sad-funny.
A mayor might seek to bring the 2 sides together in a room, sans lawyers, to try to work out a framework for co-existence. The current and 2 prior mayors couldn't seem to find the time to do that. Perhaps we'll see some grown-up leadership from our new mayor when he takes office. I know, I'm an incurable optimist.
The advocacy groups represent at least four different "sides," to trespass your mindset.
DeleteIf you're setting yourself up to be kingmaker over these groups, think again!
It is not the job of the Planning Board Chair to "balance the demands of 2 actors." The job of the Chair and the Attorney to the PB is to run a proper SEQRA process, which was not happening. The Chair wanted to negotiate with the applicant on some kind of compromise before the company even put a proper application on the table (they still haven't.) Citizens who were invited to submit comments didn't even know the basic details of the proposition (and still don't.) For over three years, Colarusso has been refusing to provide the most basic truck traffic data, claiming that it's "proprietary information." A properly run Planning Board would have shoved the application off their desk until the company was willing to act in good faith.
DeleteThere is ample evidence in emails — which have been preserved in case they are needed to be brought to a court — that Walter Chatham prejudged the application. This is the cardinal sin that a Planning Board member can commit.
DeleteBefore word one of the first public hearing had occurred, Chatham had already decided whether a Conditional Use Permit should be issued.
Specifically, he concluded before the public hearing began that he wanted the process to be a negotiation about mitigations and conditions, not an objective review of whether the project meets the standards of the City Code for Conditional Use Permit applications, and the requirements of SEQRA.
Each of his ugly blow-ups at public meetings was directly related to citizens calling for a proper, orderly, complete review. When his preconceived agenda focused on “negotiating” encountered obstacles, that’s when he got mad at the audience.
This mindset of the Chair was not changed by receiving many hundreds of pages of written comment, and verbal comments which have run approximately 150-3 against Colarusso.
Messages Chatham sent later in the fall -- again, carefully preserved -- show that he continued to have a firm bias in favor of the same outcome he determined he wanted before the process kicked off.
I have had disagreements with previous Chairs of boards like this, but never in 20 years of attending Planning Board, ZBA, DEC, Army Corps and other hearings have I ever seen someone approach a review with such an obvious lack of objectivity and professionalism. The outburst at Chris McManus was just the latest display of temper, impatience and bias. The Board is better off without Chatham.
The haul road review process must include a hard look at the economics of the Colarusso operation. I'm down at the waterfront 3 or 4 days a week, and can report that there is one guy pushing gravel around with a front-end loader, and one guy driving a water truck. The dump truck drivers are coming from Rennselaer County, Hillsdale, and other locations outside the City of Hudson. So there is nearly zero employment for City residents associated with the gravel dump. Under NY SEQRA rules, the applicant is required to submit comprehensive economic data to the Planning Board, so we can assess whatever upside the gravel dump and truck route might provide for Hudson. Given the obvious and massive downside that the Colarusso operation imposes on the community, I don't see how the company will survive that contrast.
ReplyDelete1.
ReplyDeleteWhy anyone is concerned about past truck numbers is completely lost on me. What will a "spread-sheet" of the Applicant's previous volume reveal? No matter what numbers are found, what possible strategy can this knowledge benefit compared to the advantages of the SEQR process properly understood?
As I've said for years, the truck numbers people insist on seeing are probably less than the alleged "maximum" number already reported. But even if we prove that the numbers were sometimes higher, where does that get us?
The ONLY number that matters is the potential maximum volume consequent on the project's successful completion. The current "maximum" (142 x 2) may fall far below some future maximum.
(Indeed, this Applicant is so wily I'd almost be disappointed in them if they're not holding back for the pure sport of it. Why not keep the adversary focused on a meaningless goal? Then, when you're good and ready to share some numbers - which are invariably less than 142 trips per day - you sit back and enjoy the spectacle of the dog finally catching the car. If nothing else, it's great for morale.)
Do we even know that the projected barge numbers from which the truck projections are derived aren't entirely dependent on the company's loading gear? What will happen when a future property owner gets a lucrative order which it can't fill with the existing equipment? They'll find a way to load more barges.
The good news is that SEQR provides all the tools we need to consider future impacts of the proposal, if we only knew how to use them.
ReplyDeleteFuture things typically are studied during the analysis of alternatives. But the Planning Board needn't wait for an Environmental Impact Statement - already recommended in the city's 2011 SEQR review - to compare the few principal alternatives available.
How many trucks will ANY owner be able to run over the proposed, double-lane, private road? That's the only number that matters.
How many trucks can the current owner run right now if the causeway is used in both directions of travel, "providing ingress and egress to or from [the] commercial dock operations," as specified in the C-R Zoning Code? (see: §325-17.1(D)(1)(2); (F)(2); (F)(2)(j); (F)(3).)
How many round trips are possible if the Planning Board and Zoning Board of Appeals approve no more than what's required for a crossing at Rte 9-G?
Oh right, I nearly forgot! The Applicant's attorney just barked at the Planning Board that his client's private road can only be used in one direction, and nobody thought to question this mere assertion.
https://www.youtube.com/watch?v=TJHq9K63DSo
The Board actually has more authority than just SEQR. It has permitting authority based strictly in the City Code, and additional authority based in State law (SEQRA) which it is bound to follow. In theory, it could even find that the project was approvable under SEQRA but not under the City Code.
DeleteYes, thanks for adding that. Similarly, the ZBA could have issued a SEQR Negative Declaration when reviewing the proposal for a use variance (thus ending the SEQR process), and then rejected the project on grounds of community character and aesthetics during its own local variance review.
DeleteExcept that our ZBA kept its head in the sand during the Greenport SEQR review, which was the proper venue for conducting the required environmental review on an obviously required variance.
It's worth keeping in mind one simple and ominous fact-- The Colarusso attorney has repeatedly asserted that the City of Hudson has no authority to put an upper limit on the volume of truck traffic. He claims that there is some Federal statute or Constitutional principle that prevents a municipality from limiting free trade. So let's assume that he is correct-- that would mean that if our Planning Board grants a Conditional Use Permit to Colarusso, then we are vulnerable to unlimited numbers of heavy tracks across our highways, thru South Bay, over the railroad tracks, and onto the waterfront dock. That is a ridiculous proposition, and one that no community would accept, especially given the non-existent economic upside of the Colarusso gravel dump and truck route for the City. I'm confident that our Planning Board will not be OK with the notion that we have to accept unlimited truck volume, especially since a successor owner to Colarusso would also enjoy the right to impose huge downside impacts on Hudson. We could easily end up with our city being hammered by a European firm that has no regard for our quality of life. We've seen that movie before...
ReplyDeleteYou're absolutely right, and it's ultimately the job of a SEQR Lead Agency to arrive at a plausible number for that potential increase of truck volume. As you say, though, under the outgoing PB Chairman there was the continuous perception that things were never going to reach that stage before the Applicant got what it wanted.
DeleteBut if anyone thinks the solution lies in regulating truck numbers directly, then the Applicant will challenge them on constitutional grounds and likely win. That's not a risk I'd like to take, nor was the Common Council willing to expose itself to such risks when it amended the Zoning Code explicitly to guard against an increase in truck volume.
So despite the sloppy and pernicious ambiguities introduced with the C-R District's zoning text-and-map (whose principal author was just rehired by the city as punishment!), the public's most important role going forward is to elucidate the original intention of the C-R District for the benefit of the Planning Board.
We have little choice but to stick with that plan:
https://www.youtube.com/watch?v=TJHq9K63DSo
The Planning Board’s own former attorney, Kenneth J. Dow, won the ruling from Melkonian on the City’s behalf, upholding the Board’s right to review the Colarusso application, despite what other agencies might have already done (e.g. Greenport, DEC, the Corps).
ReplyDeleteMelkonian’s ruling was a thorough and clear rejection of Colarusso’s repeated attempts to cut Hudson out of the process.
Dow has briefed the Board more than once in writing and in person on the import of this ruling -- which again, gives Hudson full rights to regulate and review Colarusso.
Moreover, Colarusso submitted the so-called “haul road” application — and the Board has publicly-noticed that application for review — every month for six months (except October, when it was canceled because of Rosh Hashanah). If it did not have the right to review the ‘haul road,” why is that application under review?
The troubling part of this meeting was hearing the City’s engineer — who is, to my knowledge, not a lawyer — repeatedly ignore the specifics of the Supreme Court Justice’s ruling, and repeat almost verbatim the rejected argument of Colarusso that it could not be reviewed. Barton & Lojudice is there to give engineering advice, not legal interpretations; but for some reason this engineer jumped in, unsolicited, to advocate for Colarusso’s specious legal position. Why?