Saturday, January 16, 2021

News from the Planning Board: Colarusso

When the Planning Board turned its attention to Colarusso at its meeting on Tuesday, they resumed consideration of the questions in Part 2 of the Full Environmental Assessment Form. At its November meeting, the board worked its way through Questions 1 through 5. At its December meeting, they considered Questions 6 through 10. At Tuesday's meeting, Questions 11 to 13 were discussed.

Much of the hour devoted to Colarusso was taken up with Question 11 Impact on Open Space and Recreation: "The proposed action may result in a loss of recreational opportunities or a reduction of an open space resource as designated in any adopted municipal open space plan." Planning Board member Larry Bowne suggested that the appropriate answer was "No, but. . . ." Bowne reasoned that Colarusso's operations and its operations footprint would not change. Planning Board member Clark Wieman argued that, although it "isn't taking away acreage," it is "damaging the ability to use recreational space."

In the discussion of impact on open space and recreation, the matter of the 4.4 acres predictably came up. Bowne observed, "At some point, we are going to have to resolve the status of the 4.4 acres." One wonders what it will take to "resolve the status" and why it hasn't been done already.  

It was back in June 2013, before Holcim sold the property to Colarusso and when the City of Hudson was still ostensibly negotiating with Holcim for ownership of about nine acres of waterfront land south of the dock, that The Valley Alliance announced its discovery that the City already owned half the land it was trying to get from Holcim. It seems that in 1981 the City illegally sold the 4.4 acres to St. Lawrence Cement, which became Holcim, and because the sale was illegal the parcel still belongs to the City of Hudson. The issue seemed to have been resolved by a title search done by the City in October 2013, but more than seven years later there is still uncertainty. It's high time it was settled.

In the end, it was decided that the answer to Question 11 should be Yes; the responses to a through d should be "No, or small impact may occur"; and "traffic, noise, odor, light, aesthetics" should be entered as "Other impacts" after e and the response to e should be "Moderate to large impact may occur."

Question 12 Impact on Critical Environmental Area was answered "No," because the area is not classified as a critical environmental area (CEA), and Question 13 Impact on Transportation was, after some discussion, postponed until the board's February meeting when they will hear from Creighton Manning, the consultants hired by Colarusso to do the traffic study for the project.

Tuesday's Planning Board meeting can be viewed here. The portion of the meeting that concerns itself with Colarusso begins at 53:40 and continues to 1:56:45.


  1. It was very worrying to hear Mr. Bowne openly declare for the patently unlawful position of the Planning Board’s attorney and engineer regarding the size and meaning of the project area.

    As it happens, our very expensive advisors toe the line with the assertions of the applicant’s attorney, repeating like a mantra that “Greenport has already reviewed the haul road.”

    Indeed, the Board is not reviewing the applicant’s self-named “haul road” (the moniker alone will one day afford environmental loopholes in state law, and yet I have no doubt we’ll all keep repeating the phrase like parrots).

    However, the Planning Board IS reviewing the “private road,” a conditional use in the Core Riverfront Zoning District. (The Board’s environmental review, aka “SEQR,” concerns all of the conditional uses on the applicant’s property.)

    By following, ultimately, the interested guidance of the applicant’s own attorney, our advisors are happy to make no distinctions between “haul road” and “private road.”

    Indeed, any distinction is clearly lost on one Board member who spoke of “the causeway site which we are not reviewing under SEQRA” [1:27:16].

    But we’re also, increasingly, hearing talk among other Board members that they’re only reviewing “operations,” as if that’s a useful distinction to be made with infrastructure. As a conditional use, though, the “private road” is both an operation and an object, and to discern between the act and the object is meaningless.

    These mistakes (promoted by our own attorney!) help gloss over the real job of the Planning Board, which is to learn why the conditional uses were established in the first place.

    And that, right there, is why this entire review must be “supplemental” to the 2011 SEQRA review, which was the sensible advice of the 2011 Common Council in its Findings Statement which concluded the 3-year review.

    The 2011 SEQR Findings, the "teeth" of the SEQRA process, are posted at the City website under “LWRP.”

  2. 2.

    But why is this happening to us again? Why are we again faced with smiling but treacherous advisors?

    The answer is simple. It's all to spare the applicant, whose attorney “knows that [the Board’s attorney] will agree with [him],” the terrible inconvenience of the court judgement against his client in a lawsuit against [wait for it …] this same Planning Board! (You can’t make this stuff up.)

    Judge Melkonian, who also heard the City’s petition against Greenport, promised this applicant no protections against double jeopardy.

    This means that where the existing private road overlaps with the proposed and so-called “haul road” [sic], then it gets the full environmental review, period. To conflate the two “roads” – the one existing and the other proposed - is a glaring category error which is all-too irresistible to our expensive advisors.

    Thus, when the Planning Board answered “NO” to the following, whose interpretation were they listening to? Was it the Supreme Court’s, or was it the unlawful advice relentlessly hammered home by the Board’s own attorney and engineer?

    [Full EAF Part 2, question 11.a.] “The proposed action may result in an impairment of natural functions, or ‘ecosystem services,’ provided by an undeveloped area, including not limited to stormwater storage, nutrient cycling, wildlife habitat.”


    It must be said that several Board members did at least offer the “alternative” view of the court judgement. They have my gratitude for honoring our laws.

    Steve Steim, reading aloud from the City Code, provided the full definition of “dock operations” as conditional uses, a definition which our Board attorney and engineer should study if they want to keep their jobs. (Really, though, it’s past time to get rid of both of them for their sloppiness alone. Shall I provide the catalogue of evidence?)

    In contrast to the poor help we’re getting nowadays, the following is from Ken Dow’s winning defense when the current applicant sued the Planning Board. With the EAF Part 2 almost finished (with too many holes; see above) it’s time that the Planning Board learn what it is that Ken won.

    “32. The issuance of a conditional use permit for the commercial dock operations is an ‘action,’ within the meaning of SEQRA, which cannot lawfully be carried out prior to the completion of a SEQRA review of such action.”

    “41. It is not only permissible for the Planning Board to undertake a thorough SEQRA review before possibly granting a conditional use permit for the dock operations, it would be unlawful and a violation of SEQRA *not* to” [emphasis in original].

  3. Can anyone besides unhimlich explain in 2 non-run-on sentences or less why Colarusso must continue to use our streets rather than the haul road that is there and waiting to be used? Or is it not at all a simple solution? (Obviously, it is not...) I am confused. Are they just jerks not wanting to be told what to do when it benefits Hudson residents? Are they like Galvan, untouchable and oh so precious? The problem with truckers is that they think their vehicles can do no wrong, that the world will fall apart without them. The sad thing is that that last part may be true, and therein lies the true problem: Live by the automobile, die by the automobile. Got to have a car in this land of milk and honey...

    1. Since the company bought the land in 2014, we were all hoping we’d see the completion of the direct route from the river to the mine which the previous owner worked out with the city in 2011. We even amended the Zoning Code to make it happen following a 3-year study.

      But the new owner had a different idea, a giant two lane road to the river instead of the existing two-way road whose smaller size was critical to the city's plan to limit runaway industrial growth at the waterfront.

      When the new owner bought the property for about $8 million, it knew the plan and bought the property anyway. (Later it pretended to be unaware of the city’s Zoning Code. Not too plausible, but caveat emptor anyway.)

      An official at NYSDOT informed me that the crossings at the state routes for the already agreed upon alternative could be completed "in an afternoon." But mining companies are famous for long-term plans and infinite patience. In this case, the company will abuse city streets for years until it can exact what it has intended all along, and probably intended before it bought the land.

      I'm glad you’re asking this question, but how many fed-up residents, even politicians, are patient enough to listen to the whole story without screaming in exasperation?

      Anyone who hasn’t cried “uncle!” by now has also had to endure years of Supervisor Mussman’s self-serving mendacity. She routinely misleads residents into thinking that by denying the new owner its every desire, and by insisting instead on the completion of the 2011 road alternative (which was a great compromise in itself), that Hudson’s better informed citizenry is wholly insensitive to the needs of those living on Front and Columbia Streets.

      Those who know better have always understood Ms. Mussman’s part in the extortion, and how willing she is to fan the flames of resentment to advance her own interests.

      I'm begging you BB, don't play a part in that ugly game. Help us rid our streets of gravel trucks in the way we intended when we changed the zoning to accommodate the 2011 road alternative.

      Ask the company to cease its extortion and finish the existing road instead.

  4. I believe the "haul road" traverses an environmentally sensitive area and that is one huge obstacle. There are probably others too. I am guessing that many people who know more about it are just so sick and tired of the whole mess that they are not commenting at this time.

    1. Whoa, you are incorrect Signe Adam!

      Please read my own reply to "BB," above, and you'll understand how easy it is for politicians like Supervisor Mussman to misuse actual circumstances in the service of a lie.

      You are repeating a lie!

    2. I apologize if this is a lie or an over-simplificaiton. I REALLY wish your explanations were clearer. It is crazy to me that most traffic (especially thru traffic)is not on 9H. Colarusso's trucks are another matter and this business and its tactics seem pretty suspect. I have read and re read all of these entries without seeing where or how it says that there is not an environmental issue. And you are right, now I do feel like giving up altogether----but I just crossed Columbia and 3rd, as I do daily, and it reminded me how much I hate those damn trucks.

    3. Only afterwards did it occur that I should have said you were "unknowingly" repeating a lie. I'm sorry about that.

      My point was - and you were demonstrating it beautifully - that it's beyond easy for someone like Ms. Mussman to plant simplistic lies in the public conversation that are 100 times more effective than the truth.

      In this case, the truth is that opponents of a bigger road desperately want to see the completion of the 2011 road alternative THROUGH THE WETLANDS.

      The lie, which requires no explanation of any kind, is that trucks must drive through the city to protect the wetlands.

      I've tried for years, but it's beyond my ability to abbreviate a truth which is specific to this situation, especially when there's a universal and ready-at-hand narrative which flattens the truth, to wit: "environmentalists" are standing in the way of something.

      So even though you didn't knowingly tell a lie, can you see how easy it was to accept it probably true?

      But the fact that it's not true in any way ... well, you try explaining it!

      To be clear, the Planning Board is conducting a SEQRA review, and SEQRA defines "environment" as:

      "Environment means the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health" (6 CRR-NY 617.2.i).

    4. Is the ownership of the 4.4 acres is in dispute ?
      SEQR has something to do with environmental issues ?
      There are 2 roads, a haul road and a private road?
      This is so convoluted and I am entering the issue so late that I cannot follow it.

    5. Good, I like questions.

      Ownership of the 4.4-acres is no longer in dispute between the City and ACS (the applicant), but there's a second dispute whether or not the state actually owns most of it.

      The important distinction here is that the acreage is not privately owned, although the City will still have to present its unequivocal evidence in court. It's just there's not a lot of money lying around to do that right now.

      At the moment there's only one existing road, which the City Code calls a "private road."

      A second an bigger road is only planned, which the applicant calls a "haul road."

      A few years ago, Greenport conducted a lame SEQRA review on the proposed road, whereas the city Planning Board is now obliged to conduct a SEQRA review on the "private road," and all the other conditional uses of the applicant (as specified in the Code).

    6. Signe, follow the URL above with the state's definition of "environment."

      That should have answered your question about SEQRA and the environment.

  5. Because the court agreed with attorney Dow that it would be unlawful for the Planning Board not to conduct a “thorough” SEQRA review before issuing a conditional use permit, what are we to think of the Environmental Assessment Form now being completed by the Board in which only some of the property’s conditional uses are reviewed?

    There are other examples, but let’s take one that most people don’t care about, recreational resources.

    At Tuesday’s meeting, by virtue of ignoring the private road which the court agreed it would be “a violation of SEQRA not to [review]” (Dow, #41), the Planning Board concluded that there are no recreational resources “presently used by members of the community” (FEAF Part 1, E.1.C).

    Wait, what?!!

    I can think of no better example than this to illustrate the importance of public participation in governmental affairs. (Some may need a reminder: ours is a government of, by, and for the people.)

    Since colonial times, all of the surface waters of the South Bay were and are a public resource. The entire South Bay is a federally navigable waterway. Our riparian rights to access and use of the bay come down to us from the Magna Carta, and Roman law before that.

    Who but the public knows to defend these rights? Who else but the public even knows what the South Bay looks like:

    Fortunately, we do have a Planning Board and Board Chairman who respect the public, respect the SEQR process, and respect the law.

    Unfortunately, nowadays there’s no way outside of blog comments and letters to the city in which to correct Board members’ invariable missteps.

    Into that equation, insert only a single outspoken Board member who agrees with his blinkered advisors who are themselves happy to promote the ruses of the clever applicant. Just say goodbye to your ancient rights as they float away down the river!

    The Full Environmental Assessment Form needs the public’s attention. The FEAF will become the record on which the final determination rests. So how does it benefit the public when the city engineer argues, as he did last month, against rectifying its incorrect answers?!

    (Um, isn’t that normally grounds for dismissal? If it was up to me, he'd have been fired in 2019.)

  6. Listen to 'unheimlich'. He knows the facts and he is right. Also The Valley Alliance thoroughly researched the issue of the 4.4. acres in 2013 and their research should stand. It's ours. It's sickening that this applicant is treated with such soft gloves after having had their case thrown out once before. Read the history, do the right thing, Planning Board.

    1. Thank you, Jennifer.

      The Planning Board has nearly concluded an internally inconsistent environmental assessment (EAF), but an EAF must be consistent not to have resulted from an “error of law.”

      The EAF Part 2 in its current state (sorry, not available to taxpayers) contains two sets of answers. The inconsistency between answers is due entirely to the wandering interpretations of this or that Board member handling the assigned sections.

      The two sets of answers reveal two totally different ideas of the action the Board’s reviewing on behalf of taxpayers. That’s right, the members cannot agree on what it is they’re reviewing, even though the EAF, their collective assessment, is nearly completed.

      In the Board’s confusion, or probably more accurately its internal competition, the members have already acted arbitrarily and capriciously.

      You’d be right to wonder why the Planning Board attorney isn’t helping the situation, except that she and the city engineer are actually the source of the conflict. And the origin of it is the applicant’s attorney - clever lawyering, too, to simply cow the other side into submission.

      Until the environmental review can bypass the obstacle of our expensive attorney and engineer (déjà vu, right?), then there won’t be a consistent EAF with the single purpose already explained and won in court: an environmental review of ALL of the applicant’s conditional uses.

      When I ask questions of Board members, I'm told that I shouldn’t be concerned. But if the members are really on top of this situation, then how did they get this far without any agreement on what it is that’s actually under review?

      The Board’s lawyer who always agrees with the applicant’s lawyer is the latest legal albatross in the room. But does the Board even need a lawyer?
      (And unless we’re in the middle of an environmental impact statement, why are we paying an engineer? To guide us through SEQRA?! This fellow doesn’t know the first thing about SEQRA, really nothing.)

      Why not tap the public for a volunteer legal advisor? The Board would rely on the city attorney to file legal papers and save money by utilizing the proven insights of the local talent. Let the applicant’s lawyer even try to run circles around Hudson’s better informed residents. Bring it on!

  7. Two observations--

    To the extent that the Greenport Planning Board (the Lead Agency) already did a SEQRA review of the haul road, the Hudson Planning Board is under no obligation to accept the conclusions of the Greenport review, which was superficial at best. There is NY case law to support that position. Further, SEQRA isn't the only relevant framework in this review, as Hudson re-zoned our waterfront in 2011 and the Planning Board has an obligation to look at that set of laws as well. DEC Commissioner Basil Seggos has affirmed the right of the City to use its full scope of powers in these proceedings.

    Resolution of the 4.4 acre issue just requires a filing of an Article 15 proceeding by the City. A claim to the acreage is stated, and Colarusso would have the opportunity to contest the claim in front of a judge. The case would be a slam dunk for the City, as the legal homework has already been done, and the facts are very clear-- transfer of title never occurred. Even the attorney who handled the matter on behalf of the City back in 1981 has admitted the error.

    1. Peter, I agree with all you've said here.

      There are so few things that the Town review covered that the City may not review. Frankly, I'm astonished every time the PB attorney announces that "the haul road has already been reviewed," and then leaves it at that!

      For whatever reason, the PB attorney and engineer are vigorously promoting the opposing attorney's interpretation.

      One thing we already knew in 2017 was that the Greenport review was only SEQRA review for a use variance in the Recreational Conservation District.

      We tried to get our ZBA listed as an "involved agency," but they didn't want any part of it. Of course a use variance automatically entails a SEQRA review, but that's one opportunity which has come and gone (though not for a lack of the public's diligence).

  8. It's also worth noting that resolution of the 4.4 acre issue has implications for the City in its conflict with Amtrak regarding access along the rails heading south toward East Jesus.

  9. A few of you commenters are quite aware of laws, regulations, etc. to relate to the waterfront, soutbay and Hudson owned land.
    I’ve been visiting East Jesus since the mid-1950’s when my parents would drive the family auto along the road that still runs parallel to the Amtrak rail track. Actually at that time I believe it was the closest one could get to The Hudson Lighthouse. So my question to you commenters is does a Law exist that provides the right for citizens to travel abroad or pathway that they have travelled for more than 65 years?

    1. This comment has been removed by the author.

    2. You just taught me something new. It's called a "prescriptive easement," which only requires intent to use someone's property for a specific purpose such as an access road (the very example offered where I found the definition).

  10. Perhaps all parties should Google the 1864 painting by Hudson's Sanford Gifford 'South Bay on the Hudson' to help them visualize what the bay once looked like (beautifully bucolic!) AND how it was used/enjoyed by it's community. It's Recreational Resources! Several activities are clearly depicted. Understand that is one factor of SEQRA review, I believe?Unfortunately, the industrialization of the bay was permitted prior to more stringent laws (my apologies unheimlich), so I'm guessing. Otherwise such transformation wouldn't have been allowed in the latter part of the 20th century. As another example, polluting the Hudson with GE's chemicals wouldn't have been either. Not included in the discussion, but a mainstay, are the wetlands, industrial runoff, wildlife habitat and so on. Any member(s) of any party involved who are biased against fully reviewing and acceptance of the findings, should step aside. Since the proposed (Haul) and presently existing (Private) roads are definitely in need of thorough review or would be a violation, right?

    It's unfortunate that the mining and dock is a stone's throw of the city. But there it is and looks like ACS is serious about continuing the business with an eight million purchase. We don't even know about the history of diesel spills, hauling spills and accidents; air & noise quality due to heavy machinery of various sorts. Or are they buried somewhere in old reports? Carbon footprint! Is there any oversight at all of this operation?

    Please forgive me if I've missed/messed up some facts since the long history of twists and turns would require substantial time for accurate study.
    Obviously a tough situation for travelers and especially, city residents. I travel 9g to enter Hudson all the time and picture a broad intersection cutting across as another affront for commuting, safety (a fair amount of accidents on normal days) and further degradation of the lands already so compromised beyond belief. I sure hope some genius or 2 enters the fray.

  11. A few tweaks, Cheviot, and you’ve got the right idea.

    But speaking only for myself, though, I have no expectation that the gravel operation will desert the waterfront anytime soon, nor am I looking for a way to make that happen. Why waste my time on that?

    But aside from the property rights of the owner, the company processes a superior raw material for use on our local roads (to everyone’s benefit), then ships its product elsewhere by barge. For me, that’s satisfactorily green.

    So you see, the picture is very complicated.

    Only consider that it was Sanford Gifford’s father who zealously filled in the South Bay, and also relocated the state-permitted shoreline hundreds of feet into the river with unauthorized fill. The resulting headaches are still with us today.

    The thing we should all stay focused on is the 2011 plan developed between the City, its residents, the previous landowner, and several state agencies.

    I call that plan The Great Compromise, which you can read about in the City’s adopted waterfront program (LWRP).

    My problem with the new owner (as of 2014) is that they substituted their own new plan for the 2011 compromise plan, then said of anyone who disagreed with them that they refused to compromise!

    I don’t know anyone except company apologists who don’t want the 2011 plan to be completed as endorsed by all the above parties.

    Unfortunately, that means a bit more traffic on Rte. 9G, and heavier use of the wetlands road. But when you stop and think that the roads you drove to get to Hudson were probably paved with Becraft gravel, you realize that we all have to accept compromises to exist in this world.

    We need to convince the gravel company of the same thing.