Wednesday, May 5, 2021

Speaking Truth to Lawyers

The special meeting of the Planning Board last night went on for more than three hours, as the members of Planning Board reviewed and corrected Colarusso's responses to Part 1 for the Full Environmental Assessment Form (FEAF). But before that review began, Planning Board member Stephen Steim asked permission to speak about letters received from John Privitera, attorney for A. Colarusso and Sons. 

Steim said Privitera's tactic in his letters was to imply that the SEQR (State Environmental Quality Review) process being followed by the Planning Board was mismanaged. He alleged that Privitera "wants to create a false record" and "attempts to frame our review in a dishonest way." He made specific reference to a lengthy letter from Privitera sent to the board on February 8, 2021, which makes these arguments:
  1. Since the dock is an ongoing operation, the impact of which is known and fully mitigated by the Code requirements with which we comply, the scope of review of the Dock Application is limited to the impact of the Bulkhead Repair on the recreating public;
  2. the scope of the review of the Haul Road Application is limited to the impact of the proposed improvements;
  3. SEQRA review on the Dock Application should be limited to the impact of the Bulkhead Repair and the additional conditions imposed by the Planning Board pursuant to the City Code; and
  4. no further SEQRA review by the Planning Board on the Haul Road Application is required or permitted.
Steim also cited a letter from Ken Dow, former city attorney, received on February 18, in response to Privitera's letter. He read aloud a portion of the letter in which Dow calls Privitera's letter "ten pages of shockingly dishonest misrepresentations of matters that have been addressed over and over, and which are the subject of final and definitive Court rulings that are the exact opposite of what Mr. Privitera claims. These points have been definitively settled." Steim further quoted Dow's letter: 
a) As of 2011, commercial dock operations could continue as a nonconforming use; b) the right to operate as a non-conforming use terminated when they did the "triggering" act of working on the bulkhead; c) now that the right to operate as a nonconforming use has been terminated by the triggering act, they need to get a special use permit for the entire operation in order to continue to operate; d) the Court said that "SEQRA review for continued commercial dock operations is necessary." 
Steim's comments take up a little more than five minutes at the beginning of the meeting, which can be viewed in its entirety here.

A bit later in the meeting Privitera told the board, "We are here to conform to the order to remedy. We are not here for the entire revisitation of the entire dock operation." Victoria Polidoro, counsel to the Planning Board, corrected him saying, "The permit is for the continued use of the dock. It's the whole enchilada."


  1. It was a sight to behold: the city's Planning Board asserting the right to simply to its job.

  2. The applicant’s attorney, Mr. Privitera, gets special points for relentlessness. If this was the Olympics he'd take home the gold.

    But that is a tactic, after all, and probably one that worked on any Planning Board in Hudson’s history. Until now.

    In his defense, the applicant is free to cherry-pick among Judge Melkonian’s words where one can certainly find misstatements concerning the word “dock” versus “dock operations” (two very different concepts). Judge Melkonian’s related sloppiness on page 8 has always bothered me, and it’s no surprise that Mr. Privitera wants to interpret it to his client’s advantage. Of course he's free to do that, and why not?

    If the judge was able to confuse the two (but only in that one section), then it’s no surprise that the Planning Board’s attorney might also use the two interchangeably as she did last night at 16:40:

    “The permit you’re seeking is for continued use of the dock – it’s continuation of existing commercial dock operations.”

    The first part of her statement was agreeable to the applicant. The second part was not.

    It’s these lawyers’ routine failure to distinguish “dock” from “dock operations” - or even conflating them at times - that we already see the outlines of an Article 78 challenge.

    Ironically, the Planning Board members are more disciplined than their own attorney in preserving the distinction. In my opinion, this warrants looking into.

    But it was the Planning Board’s engineering consultant who in his alarming haste skipped over the very first question, “Name of Action or Project.” There the Planning Board left the applicant’s description intact, “Hudson Dock.”

    This lapse in the Board’s discipline will provide an advantage to the applicant in court (see above).

    Unfortunately, the Board ignored several requests in real time to correct it.

    1. A pleasing correction is called for!

      After the meeting had all-but ended, Board member Larry Bowne was successful in changing the Project Name to "Commercial Dock Operations in the City of Hudson" [3:06:00].

      I'd already logged off.

      Thank you Mr. Bowne!

  3. Since the review of the Colarusso application began, their attorney has done the following:

    ~ Filed a lawsuit against our Planning Board that was thrown out by a NY Supreme Court judge

    ~ Refused for three years to provide basic truck traffic data

    ~ Failed to honor their obligation to keep their escrow account replenished

    ~ Accused Planning Board members of being ethically compromised

    ~ Made the false claim that the company already has a Conditional Use permit

    ~ Refused to acknowledge that their entire property is under review

    It's amazing that an experienced attorney doesn't seem to understand that being a difficult and obstructive applicant isn't helping his client advance their agenda.

    1. Don't forget the alleged "conservation easement" filed as part of the deed.

      Serial Planning Boards have requested the identity of the easement holder (ACS itself is barred), but Mr. Privitera has not been forthcoming.

      An easement would confer tax advantages, but it's also used to make the argument that its alleged boundaries limit what is and isn't possible in the Recreational District.

      On the other hand, if there was no conservation easement when the deed was recorded in October 2014, then wasn't that a false filing? In New York state, a false filing is a Class D felony.

      Mr. Privitera should stop delaying and answer the Planning Board's question, "Which entity is the holder of the easement?"

    2. I sought the answer to this question in 2016 when I (briefly) chaired the reconstituted Waterfront Advisory Steering Committee. JR Heffner told me Colarusso was the easement holder. He would not provide me with a copy of the document but invited me to visit his office on Newman Road to view it.

    3. Carole, could you do us Peters the favor of distinguishing between us. Having been a loudmouth on Gossips for many years, but always using my name, I would appreciate that this other Peter stand up and declare himself. Not that I don't agree with him much of the time, but I have trouble enough defending my own remarks without having to answer to "Peter" whoever he/she/they/them is/are. I'm looking into trademarking the name, so lookout, Peter, I might be coming after you.

    4. I'm sorry, Peter Meyer, I cannot do what you ask, but maybe the Peter who made this comment will oblige by appending a last name or even the initial of his last name to his comments.

    5. Thanks for relating Mr. Heffner's crazy notion that anyone can hold their own easement. That's just not how it works, not for tax purposes.

      And if the alleged easement wasn't created for tax purposes, then it's not a "conservation easement." Technically it's nothing, though it does sound like a false filing which is a crime.

      I have it on good information that months ago Ms. Polidoro approached the applicant regarding the alleged easement. Did she learn anything? Did they put her off? Did she follow up? Did she create a report? (Anyone want to bet that Ms. Polidoro already knows the answer?)

      And if the Planning Board learns that the deed is in error, what then? Is the city supposed to look the other way? Do we ignore it? Do we report it?

      Don't forget that the alleged easement was used to great effect in the Greenport review and in the Determination of Significance:

      "The [Greenport] Planning Board has considered that the adjacent lands owned by the applicant, generlly referenced as the 'South Bay,' are subject to a private Conservation Easement [sic] with restrictions pertaining thereto. Based on the above, it is not anticipated that the Project will result in a significant adverse impact on plants and animals" (Greenport Neg-Dec 7/25/17, p. 6).

      What utter nonsense. There's no such thing as a "private Conservation Easement," though the Greenport Planning Board couldn't have cared less whether or not the thing was a sham.

      But that was in Greenport; in Hudson we do care. But does Ms. Polidoro care? Does she already know? Would she realize that it's a crime? If so, would she inform her clients of this crime?

  4. 1.

    For that warranted closer look at the machinations of our Planning Board attorney, last night offered opportunities aplenty.

    At 31:55, Board member Larry Bowne requested that the potentially involved and interested agencies in the review be updated about the greatly expanded project area.

    Initially, and under Ms. Pomidoro’s guidance, federal and state agencies were misinformed of the true extent of the project area. That was in a Lead Agency "Circ" notice dated August 26, 2020 (the document is posted online). The letter stated that the entire project area was between the train tracks and the river (more on this below).

    In her reply to Mr. Bowne (at 32:26), we were amazed to hear how Ms. Polidoro handled this perfectly reasonable suggestion and request. Prepare yourselves for a giant pile of nonsense.

    Ms. Polidoro [32:26]: “So Larry, so the 115 acres [sic] – I want to make sure we’re all clear on this. ‘Haul Road’ is a separate use [in the Code]. A separate permit has been issued. Right? The Code breaks it out as a separate use. Yes. If you look at the zoning law, the Code breaks out the ‘Haul Road’ [sic] as a separate use from the dock.”

    Okay, if you’re already lost then please know that the Code makes no mention of “haul roads.” The phrase is a misnomer chosen by the mining company for a different proposal already reviewed by the Town of Greenport. It's a technical term which gives the owners of all “haul roads” special advantages in state law. Although no member of the Planning Board would use the phrase, Ms. Polidoro employed it to describe both the existing “private road” as named in the Code and also the proposal for a new and as-yet-nonexistent road. Wow, that’s some terrific lawyering!

    To her suggestion that the Code “breaks out” the conditional uses, whatever that means to her, Mr. Bowne replied that the enumerated conditional uses of the Code are all “inclusive,” and he even cited the word “including” where the Code lists the District’s conditional uses: “including … private roads” (325-17.1(D)(1)).

    Notice that this entire exchange resulted from Ms. Polidoro’s need to be clear before anyone alerted any state agency that the actual project area is 20 times larger than what she herself had originally claimed. We could only wonder where she’d take the conversation next.

    For Mr. Bowne’s edification, Ms. Polidoro proceeded to enumerate the conditional uses of the C-R District, staking her position that each is a “separate” use which "breaks out."

    Contradicting her bizarre non sequitur, Mr. Bowne quoted a decription of this precise section of the Code by its author, NYS DOS attorney William Sharp, the same words also employed by Ken Dow when he successfully defended the Planning Board against this same applicant’s lawsuit.

    I must say here, Kudos to Mr. Bowne’s presence of mind!

    Ms. Polidoro seemed at pains explaining that she understood Mr. Bowned (34:20), but that “this is where it gets difficult. If you’re just considering roads as they exist now, as part of the operations [garbled], but to the extent that you’re considering changes to the ‘Haul Road’ [sic], that’s separate [garbled] a separate SEQRA review.”

    To this Mr. Bowne eagerly replied that “I completely agree with you” [34:38]. He then laid out his sensible thought experiment which more easily distinguishes Greenport’s review from the Board’s ongoing review.

    But by then I was only thinking to myself, What the hell is going on here?!

  5. Linda Mussman, Cheryl Roberts, John Privitera. By the cronies it picks as its champions, Colarusso is really signaling both a disdain for the Hudson community and an unwillingness to engage it with integrity. It's no wonder with so many clowns running around their tent everyone thinks them a circus.

    1. You left out one (at least) of the tribe, Victoria Polidoro.

      She's where the rubber hits the road for the Mussman/Roberts nexus.

    2. The circus tribe is back with a new naive mayor - give them an inch and they will take a mile.

    3. When the Planning Board shed itself of Jeff Baker I was hopeful his replacement would be a better advocate for the Hudson community, but some of Polidoro's action's have certainly given me reason to question her ethics.

      But let's remember to give full credit to Cheryl Roberts who has once again shown us how much faster you can flip on the trapeze without a moral center.

    4. Ms. Roberts is unquestionbly the least fit for public service which is something the Albany County Democratic Committee understood when it defied the Columbia County committee its insistence on running their champion WOMAN candidate for Supreme Court justice. It was as if she needed no other aptitude for the job; it was simply "time for a woman, bla, bla, bla..."

      But serving as our often invisible Corporate Counsel (was the title possibly invented for her?), Ms. Roberts is now running the whole show in Hudson, unmolested by those pesky taxpayers.

      Is anyone still unsure where Ms. Polidoro is getting her marching orders?

      From the transcript I've provided you can see she's not answering to the Planning Board. So who? Does anyone know who writes her check?

  6. 2.

    Seriously, what was the point to any of this? Why did the Board’s own attorney needlessly lead everyone down a path which was anything but “clear,” was entirely redundant, and which surely lost many people? How was this an answer to Mr. Bowne’s request that the Board properly define the project area for a conditional use permit review, exactly as spelled out in the court judgement quoted by Mr. Bowne?

    I’d say that Ms. Polidoro was wasting the Board’s time to seize an opportunity to obfuscate, however unconsciously, and to get the conversation off-track from Mr. Bowne’s request. After all, it was her own blunder in the August letter which needed correcting, and that was thanks to her previous conviction that the applicant’s attorney was a better guide in these matters than her own clients were. (The Board’s Eagle Scout engineer was equally wrong and equally adamant.)

    Finally, at 37:57, Ms. Polidoro openly opposed Mr. Bowne’s initial suggestion: “I still don’t think that this [project area update] needs to be recirculated into the other agencies. The site plan and our Resolution that the Board sent around was clear that we were looking at the continued dock operation, so I’m not sure what we’d get from sending it to all the other agencies again, especially since we’re still in contact with DEC over the animals that are at the site. …”

    But here is the actual description in the Resolution circulated to more agencies than the DEC alone, a document which Ms. Polidoro misrepresented in defiance of Mr. Bowne’s reasonable request:

    “[T]he applicant … has applied for a conditional use permit for the transport and shipment of goods and raw materials (the ‘Project’) on property located at 175 South Front Street in the City of Hudson between the railroad tracks to the east and the Hudson River to the west …”

    According to the DEC, it was on the basis of this description – identical to the one found in the August 26th “Circ letter” – which the state used to produce its erroneous “Project Location Map” which the agency shared with God knows who else.

    Ms. Polidoro, the Board’s own attorney, is a menace to the Board and to city residents. She’s certainly no friend of the South Bay, nor to the SEQRA process, nor to the City Code for that matter. I can’t understand why the Board has not fired her for her endless obfuscations and her failure to follow their orders. What is becoming clear, however, is her confusion who it is she thinks she’s working for.

    Planning Board, please replace your attorney.

    Also, please notify all potentially involved and interested agencies about your previous error.

  7. Does anyone agree that the Planning Board should replace attorney Polidoro?

    Can others see through the smokescreen, or are people fooled or even impressed by her bewildering diversions?

    The catalogue of topics she and the Board's engineer have been wrong about is staggering, though at the time they were cocksure about every one of them. Afterwards, they just carry on as if nothing had happened. It's a kind of provincialism that only works for awhile.

  8. The seemingly unethical and contriving nature of all of the attorneys cited above is astounding, and disheartening.

  9. I really want to know why Ms. Polidoro who grasping at non sequiturs was at such pains to explain to the Planning Board members something they grasped before she ever did (see transcript section above).

    For that matter, when she said that "the permit is for the continued use of the dock," calling this "the whole enchilada," she ought to have said "dock operations." Is that just very sloppy or it is somehow sly?

  10. This is the most frightening description of the obfuscations regarding the issue at hand that I have ever read. This has been going on for so many years and that Cheryl Roberts is still around is bad enough but it seems that Ms Polidoro is absolutely useless. Certainly nothing I have read is clear and sounds like smoke and mirrors to me. Bring Ken Dow back. He is the only one (other than Unheimlich and Mr Bowne, thank goodness for his clear head) that sees the whole picture clearly since 2011. This subject is not as unclear as it seems to be. There should be no 'Haul Road' that's a misnomer and it is the whole Dock Operation that is to be looked at. For goodness sakes Planning Board, you are trying hard, but get a better attorney. Hudson, stick to your guns.

  11. This does seem concerning given Hudson's history of troublesome lawyers, but the Kamal administration seems to be gilding the lily by having four or five troublesome lawyers.

    1. Does anyone know what happened to city attorney Daniel Arshack, "a recognized criminal defense attorney [appointed to] serve as 'Special Waterfront Counsel' and "lead attorney on updating the Hudson waterfront plan"?

      What would a criminal defense attorney who's not from here know about our waterfront?

      Anyway, here's a useful Gossips round-up of the multiple attorneys in the mix:

  12. 1.

    Hudson’s best lawyers, and we’ve had a few (literally three by my count), were those who did not compete with the public.

    For me, the lesson driven home by the recent exhaustive title search of state-granted lands underwater and their subsequent deeds is that memory is paramount for any effective understanding of Hudson’s waterfront. For those lawyers who see themselves as quasi-planners, or are simply satisfied with short-cuts, they ignore the repository of public knowledge at their peril.

    For memory that’s not recorded, it doesn’t take long for it to vanish altogether. Even now, too much of the waterfront’s recent history stored in residents’ memories alone will be gone in a decade. I can attest to this after witnessing how many tiny but critical details of the waterfront program have been forgotten since 2011. Just the other day I upset myself by forgetting the name of Cashoway’s Creek, but does anyone living know the precise location in South Bay of the now extinct “Mud Creek”?

    Of the current Planning Board members who were here a decade ago, few if any appreciate the conclusion of the 3-year environmental review (EIS) that any subsequent review having to do with conditional use permits should be “supplemental” to the 2011 Generic EIS (a.k.a. a “Supplemental EIS). Our tendency as Americans is to look forward, begin anew, and thus commit ourselves to a new cycle of forgetting.

    Happily, new research informs new memories as long as the clues survive. I can’t emphasize enough how invaluable Gossips’ internal “search” function is, in this case for recalling the conveniently short memories of city attorneys posing as local historians:

  13. 2.

    For all of our struggles just to remember, newcomers bring a fresh perspective. That is, unless they’re like most lawyers and most planners whose sense of self-importance disregards local memory in favor of their hidden paymasters. We witnessed a worthy example of this at the January 12 meeting of Planning Board when the dovetailed efforts of the Board’s attorney and its engineer reprised one of the worst ideas for waterfront development in the 2011 waterfront plan. Advance Zoom meeting to 1:05:00:

    Never mind that the required land transfer for the now-15-year-old idea didn’t pan out in time, or that the real estate failure ultimately undermined the entire waterfront program (the reason Hudson doesn’t have a state-approve “LWRP”). And never mind that it later turned out the City already owned enough of the needed acreage to at least salvage something of the plan which, incidentally, enjoyed no public support.

    Instead, fast forward to the efforts our latest experts and the Planning Board letters of June 11, 2019, March 6, 2020, and of course the January 12, 2021 presentation by the Board’s advisors of this same bad development scheme (obviously someone else’s idea; see “paymaster”). Unfortunately for Hudson, this same idea always seems like new wine to our Planning Board members, none of whom has any recollection of the same old bottle.

    But if the bad old plan was updated to tentatively account for City-owned acreage, it still required favors of the applicant to access the acreage. That made it more than just a plan but also a negotiation which was oh so reminiscent of our Corporate Counsel’s previous failure.

    But throughout this entire recent effort to revive Cheryl Roberts’ odious development scheme, not one of these self-assured experts thought to scrutinize the City’s still-valid deed to learn that public access to this same riverfront acreage is already ours. There was never any need to negotiate, nor to ask favors, nor to give anything away.

    But as evidenced in countless Gossips threads, the public studied the deed years ago along with the shared easement deed for the existing access road. If the comment threads could be searched, you’d find dozens of discussions on the public’s continued right of access to the “4.4 acres.”

    In an age when we give all priority to credentialed “experts,” it’s typically the most incompetent who come across as the most patronizing. They’re the same technicians who are most likely to repudiate local memory, and that puts them in competition with the public they’re meant to serve.

  14. this is why I am horrified at seeing new bad ideas layering over old bad ideas when the original facts were brought to light in 2011 or even before. And that the person who killed the LWRP is our corporate counsel. Short memories and same old people grinding the axes. The people speak up and Gossips archives it thank goodness so memories can be refreshed. There is public access and we own the 4.4. acres. And it's a causeway, not a 'haul' road.

  15. You hear about the limits of "institutional memory," but what if it's the same players involved?

    Errors from the long distant past may soon catch up to this story.

    The state's now trying to figure out how to cover for its own error in 1903, which was then compounded in the '30s, when a state grant of underwater lands was based on a defective deed from the Hudson Iron Co.

    It's astounding, but not only were all of the subsequent deeds based on the defective 1869 deed, so were the subsequent grants and offers of grants from the People of the State of New York to private enterprises.

    Was all of that incompetence attributable to the lack of institutional memory? Doubt it.