Thursday, December 23, 2021

About that Colarusso Lawsuit

Roger Hannigan Gilson reports about the Colarusso lawsuit in the Times Union: "Mining business Colarusso's sues Hudson over future of waterfront."

Photo: Bill Huston


  1. Colarusso attorney Privitera is contending that the Hudson Planning Board is exceeding its authority by moving ahead with a Positive Declaration and a full SEQRA review. Very odd-- if the company doesn't believe that the Board has that authority, then why did it spend the last six years participating in the review process? Was Colarusso expecting that the only possible outcome was a Negative Declaration? WTF???

  2. There is no way that Colarusso intends to run a modest gravel operation. They now have six years and probably $500K invested in the process. It's clear that they have major ambitions, with major negative implications for our waterfront.

  3. 1.

    This is Roger Gilson’s best account to date, clear and concise, though I continue to resent the sensational showcasing of Mussman’s tired narrative, repeated in the same article by Paul Colarusso, at the expense of the counter argument. To tell the whole story Gilson should follow Mussman’s usual b.s with something like:

    “Opponents counter that the existing private road should be used to remove trucks from city streets as envisioned in the Zoning District created for the road in 2011.”

    The false either/or of the Colarusso/Mussman narrative which exploits real Environmental Justice impacts generates unwarranted prejudice against the solution already worked out years before Colarusso bought the property. Sowing chaos is the hallmark of certain schools of journalism, but here it mars an otherwise perfect piece. (Knock it off, Roger!)

    Funny that Paul Colarusso should mention it, but it was the City’s concern not to regulate the aggregate business that led to the 2011 compromise. The hope was that the narrow private road when used in both directions of travel would set its own limitations on truck numbers. That assumption was never investigated, however, and for all we know there’d be little effect on overall truck volumes if the private road was run efficiently at its current size. That’s something that a Supplemental EIS would want to find out in its analysis of alternatives, and also an eminently reasonable question which the false either/or totally obliterates.

    The argument that Greenport already conducted a suitable review of the road and that Hudson lost its argument in court that Greenport’s review was insufficient focuses on the wrong part of Hudson’s loss. Strained as it was, it was Melkonian’s rejection of the segmentation argument which makes this review - for a conditional use permit (CUP) - an entirely separate and unrelated matter. To conflate the actual road with the thing being reviewed, the CUP, is to reinvigorate the categorie error that most of us abandoned long ago.

    The proper way to understand Melkonian’s two decisions was always to see them together, almost as a piece. Otherwise, his defense of an obvious segmentation makes no sense.

  4. 2.

    Significantly, it was always Ken Dow’s argument that even making the segmentation argument was a mistake (though to repeat, I think Hudson profited from losing the point). No doubt about it, the man has a sixth sense when it comes to the law.

    And no offense to Ms. Polidoro (who curiously deferred to Ms. Roberts who’s already allegedly recused herself), why wouldn’t the Planning Board invite Mr. Dow to defend the same arguments that he readily won for the city in the last bout? They’re the same arguments! The man can repeat them in his sleep. I recommend that the city opts for the easy win, I mean as long as Mr. Dow is amenable. (Keep in mind that the City’s entire current legal staff were the last to perceive the above- mentioned category error which wasted so much of everyone’s time.)

    As for Roberts’ so-called “recusal,” I say don’t believe it. Just recall the explanation of Chicago D.A. Kim Foxx (who’s similarly driven by ambition and ideology) when it turned out that Foxx hadn’t actually recused herself in the Smollett case. After stating that she’d recused herself, later she claimed she’d only meant it “rhetorically.” Sure.

    And does anyone believe we’re not looking at the same kind of operator in Roberts?

  5. It's worth noting that when Colarusso originally submitted their application to the Greenport Planning Board, they were anticipating a truck volume of 2,000 trips per year. But once the company was forced by the Hudson Planning Board to submit a proper traffic study (Creighton-Manning) the truth came out. The company is now predicting an annual volume of 15,000 trucks, a 750% increase in heavy truck traffic across our highways, thru South Bay, and onto the waterfront. The Greenport decision to approve the haul road is ill-informed and completely out-dated. The dramatic increase in volume is one of the reasons the Hudson PB is correct in its assessment that the application needed a POS/DEC and a full review under SEQRA.

  6. The whole operation should be condemned and shut down.

    1. Concrete, stone mining, all that extractive business, is so environmentally destructive. Then there's all the damn trucks the industry needs with the toxic emissions, noise and infrastructure damage they spread around. Where's our Hayduke? -- We need him!

  7. Does anyone have a link to the actual lawsuit? The war of words is always fun to savor in the safety of my hermetically sealed lair, but this old washed up lawyer would rather make up my own mind by parsing the text of the contestants themselves.

    One lacunae that makes it all sui generis to my old brain is the idea that an owner, having lost its grandfathered status, and thus having no right of use at all as contemplated, nevertheless has a right to seek a CUP as to which there seems to be no standard for the Planning Board to apply in evaluating it, and as to which the PB may arguably deny for any reason or no reason, where the requirement of a SEQR review may not even be necessary or relevant, unless the PB decides to make it relevant. The original law in my opinion was a stinking mess, an utter fail. Bye now.

    1. You can get to it here: Enter "Colarusso" as Party 1. It's toward the bottom of the fourth page.

    2. In all due respect, Steve, I don’t see any problem.

      As I understand it, Colarusso lost its grandfathered status in January 2019, and since then continued its operations by the grace of the city it’s now suing for the second time. But the owner still has a right to seek a conditional use permit. Going by both the Melkonian judgement and the City Code the applicant is finally doing so in the proper sequence while still taking the city’s considerable generosity for granted.

      But that only explains the run up to the SEQR process, which has already provided an invaluable venue and means to evaluate reasonable CUP standards. If someday our ideas about the waterfront change, for now the Board is obliged to provide a detailed rationale for the standards its members decide they will impose, and which best reflect today’s values. In turn, their explanations will inform tomorrow’s residents and Boards, and also edify future project sponsors.

      So in all due respect, I think it’s a mistake to look for fixed standards when the beauty of our system allows us to reasonably modify old ones, or even to discover new standards the significance of which have only occurred to us of late. As a student of Common Law and Home Rule, I know you’ll celebrate this flexibility which is ingeniously baked into our system (which of course has nothing to do with relativism).

      Fortunately, the CUP sections of the Core-Riverfront Zoning District provide a useful outline. Though they’re not “standards” in themselves, they elicit a range of considerations the Board will use as a template.

      On the other hand, it was the rationale for creating the C-R District which ought to guide our discernment of standards, deliberations echoed throughout the waterfront program and found more directly in the LWRP’s unfortunately fragmentary SEQRA record.

      Notwithstanding the scant record left to us, it was with unusual foresight that the 2011 Common Council recommended that future Planning Boards reviewing CUPs avail themselves of the documented rationale for the standards of 2008-2011 by conducting environmental impact statements that are “Supplemental” to the Generic EIS of 2011 (thus, an “SEIS”).

      So, up to the announcement of the latest court petition, everything seems to have gone in proper order. (Of course an unripe lawsuit is by definition out of order.)

    3. Steve: There are plenty of standards, both explicit and implied, in the City Code and related legal precedents.

      But let’s not forget that the Board is brodaly empowered by the topmost language of the Code to protect the health, well-being, quality of life, and orderly development of the City. They don’t actually have to get into the weeds on every issue to reject this application. They can, and they will, but they can still under both the Code and/or SEQR find that on the balance this is not consistent with the City’s planning guidelines and goals.

      Take a look at the very similar gravel project turned down in Troy — a decision which survived plenty of legal challenge. I should have copies of those still if you want to read them, just shoot me an email.

    4. Hopefully the Board is prepared to go beyond a simple Yes or No, and at least aims to assist in the ending of Colarusso's voluntary abuse of neighborhoods west of 3rd Street.

      The solution, which is studiously ignored by the company along with the tireless assistance of Supervisor Mussman, can be found in the city's 2011 waterfront program (though never in any newspaper articles by Roger Gilson).