Ear to the Ground
Gossips has learned that A. Colarusso and Sons is suing the City of Hudson . . . again. The details of the lawsuit are not known, but it's likely the positive declaration made by the Planning Board in SEQR (State Environmental Quality Review) has something to do with it.
Colarusso and Sons, the same company that paves our streets and replaces curb cuts every two years and does plenty of other work for our DPW. They repaved S. 3rd Street, Warren to Allen, 4 or 5 years ago, and much of it quickly deteriorated, and has been a mess since. We should be sueing them instead of paying to continually patch their shoddy work. Bill Huston
ReplyDeleteMaybe a company that has to file multiple lawsuits in order to operate in our community is a company that we don't need here.
ReplyDeleteCan this be true? I suppose it can, coming from the same petitioner who launched a frivolous lawsuit against the Planning Board only several years ago.
ReplyDeleteBut looking for any sort of final determination and not finding one - the kind which might have caused an actual harm - residents can be encouraged that an applicant who was likely suing the city in any event is now doing so too soon.
The weird thing about this lawsuit is that our Planning Board has not taken a determinative action yet. They are just going thru the normal steps of a SEQRA process, so there is no legitimate grounds for a suit. I wonder how many more years will pass before Colarusso realizes that they hired the wrong attorney.
ReplyDeleteIn the parlance, it ain’t “ripe.”
DeleteSee: Ranco Sand and Stone Corp v. Vecchio, N.Y. Slip Op. 02477 (March 31, 2016).
There was a finding of a positive declaration. That is litigable.
DeleteNot as a “preliminary administrative action.”
Deletehttps://www.farrellfritz.com/court-limits-judicial-review-of-seqra-positive-declaration/#_ftnref1
Your not reading the opinion, your reading a report of the opinion. Moreover, as usual, you're either not reading enough of it or you're misreading it. Renco sets out a clarification of Gordon's 2-prong test for ripeness. There are a number of enumerated rationales why a positive dec will be ripe and, just from reading the decision it's clear that at least one of those rationales is present in this case.
DeleteFine, from the Ranco judgement itself (address below).
DeleteIn the Gordon case which established these two “prongs” you mention, the first prong came about due to the existence of a prior negative declaration by an established lead agency, the DEC, which had already conducted a coordinated SEQRA review.
From Gordon: "the [Town] Board may not have had jurisdiction to conduct its own SEQRA review” in addition to which (now quoting from the Ranco case), “no apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS.”
So while the obligation to conduct an EIS can be argued as “unnecessary and unauthorized expenditures,” context is everything. Where is a similar burden to the Gordon case happening here? Indeed, the court will refer to the 2019 Melkonian decision and conclude that the Positive Declaration was a hazard incurred by Colarusso itself following its unauthorized actions.
Additionally, providing that the Planning Board orders a “Supplemental” EIS (or SEIS) per the instructions in the 2011 Findings Statement, how can the court conclude that the Board is exercising anything other than its own obligation? Again, these are issues Colarusso should have investigated before it bought the property in 2014.
The second prong asks the question of any action’s finality.
The petitioner Ranco complained that it mightn’t be able to “recoup the costs incurred and time spent on conducting a DEIS.” The court acknowledged that “of course that may be true, but is insufficient, without more, to distinguish Ranco's case from any other preliminary administrative action.”
In the Ranco conclusion, the justices reiterated that “the ruling in Gordon was never meant to disrupt the understanding of appellate courts that a positive declaration imposing a DEIS requirement is usually not a final agency action, and is instead an initial step in the SEQRA process.”
Because the circumstances in Hudson don’t come within a mile of either of these “prongs,” I say that the Colarusso lawsuit doesn’t have a prayer. The case is not ripe and will be tossed. The Planning Board must feel greatly relieved.
https://law.justia.com/cases/new-york/court-of-appeals/2016/43.html
John, you once admitted to me that you didn’t know anything about this area of law, and yet you keep pretending to be expert in it… Without following the actual details of this case.
DeleteAnyway, Colarusso already tried to challenge the Board’s right to conduct this review, and was roundly rejected by the court. Res judicata: The City should have this summarily dismissed.
Yes, Sam. About ten years ago I didn’t. One of the beauties of being an actual lawyer (as opposed to someone who only plays a lawyer on tv or a hyper-local bog) is that we’re trained how to read and understand court opinions, statutes and regulations. Live and learn, Sam.
DeleteAs for Tim’s argument, thin gruel as usual. It’s not too late to go to law school, Tim. When I went one of my classmates was a retired headline editor for the NY Post — she may have known Alexander Hamilton she was that old. Of course she had an open mind and was sober . . ..
Whoa, a whole decade of securing fence and septic permits! I’m impressed. Far be it from me to argue with someone who spent a couple minutes on Westlaw.
DeleteBut it’s not about me, it’s about the law and procedure.
Since you raised experience, I’m just sharing the consistent position of far more competent and experienced land use attorneys—including among others former and future DEC Commissioners, City of Hudson attorneys, and others who’ve represented municipalities, towns, agencies and the State in hundreds upon hundreds of land use reviews cases. My role was to coordinate, commission, and collaborate with experts whose experience extended beyond a handful of perfunctory fence permits.
Let’s just take an example specific to this very location:
The St. Lawrence Cement case involved opposition attorneys including among many others Basil Seggos, Al Butzel, Dave Gordon, Warren Reiss, Marc Gerstman, not to mention multiple attorneys at Young Sommer, NRDC legal counsel, et al.
That SEQR process lasted nearly 7 years, without reaching a conclusion due to another agency denying other permits first.
During that time, numerous SEQR milestones were passed. At DEC alone, these included a pos dec, scoping process, endless State-required revisions to the pDEIS, issues conferences, party status hearings, issuance of the DEIS for public comment, multiple public hearings including one which drew 1,000 attendees over 13 hours, decisions by the ALJs on adjudicatory issues, hundreds of hours of testimony in adjudicatory hearings, and most notably multiple interim decisions by the DEC Commissioner.
All of these were actually just a prelude to what might have been a truly epic Commissioner’s decision, if the Secretary of State had not acted first to deny the Coastal permits.
And that was just one of the many local, County, State and Federal processes.
Concurrently, the company was pursuing permits and approvals from a dozen other agencies as various as the FAA, Army Corps of Engineers, and both the Hudson and Greenport Planning Boards.
Each of these completed, to various degrees, various preliminary procedural milestones along the way.
Now, and here is the kicker: St. Lawrence Cement spent literally tens of millions on lawyers and consultants during this process, using an international firm notorious for aggressive, heavy-handed legal tactics. These guys made Privitera look like a slice of Wonder Bread dipped in french toast batter.
*Yet* at no point during that endless process, even as major regulatory setbacks piled up for the company, was SLC reckless enough to sue to challenge any of these milestones in the SEQR process or any other.
Why? Because—as the many truly experienced land use attorneys involved explained to us—they couldn’t.
We had been very concerned that given their vast budget, they would just go to court after every step.
Nope. The most they could do as each agency moved ahead was to issue thunderous (but impotent) memos protesting each setbacks, and “reserving the right” to challenge interim determinations.
In short, if SLC had had even a hint of a right to sue before any of those countless steps were checked off, they had dozens and dozens of opportunities to do so. But they didn’t. Because they couldn’t. End of story.
The City should ask for summary dimissal. The suit is both untimely, not to mention again that it is founded in an issue already specifically decided by the court.
I agree, there's nothing new here. The City should ask for summary dismissal.
DeleteThere they go again, causing disruption and costing taxpayers money, not accepting the City's decisions. They'll stop at nothing to get the result they want. Just keep putting the foot down Hudson. Thank you Planning Board. It will be worth it eventually.
ReplyDeleteThe building and tower should be condemned and the ground there tested for contamination. They also shouldn't be allowed on Front Street. Make them use the gravel road both ways. They can negotiate with the railroad to install a crossing direct from the gravel dock area straight across to the gravel road. They don't need to go on the streets at all.
ReplyDeleteWill both sides be represented by Cheryl Roberts in court, as well?
ReplyDeleteMaybe if she screws things up a little worse for the Hudson community, the Greenberger Center can a discount on asphalt for their next parking garage.
I’m sure that Ken Dow would love to take it on if someone asks nicely and pays accordingly.
DeletePretty sure that Robert has been forced to recuse herself from all matters relating to Colarusso, given her position with the Greenburger Trust, which donated land to Colarusso.
ReplyDeleteRoberts doesn’t believe she was forced to do anything! She says she recused herself, but as far as she’s concerned it was totally unnecessary and purely voluntary.
DeleteI have no doubt whatsoever that she’s fully involved, just not publicly so. As I suggested elsewhere in these threads, she’ll come up with some reason later on why she was never technically recused.
Kim Foxx in Chicago had recused herself, then later claimed after her ongoing involvement was revealed that she was merely being “rhetorical” when she’d said it. I’d put money on it that Roberts will say something similar if it should happen she’s caught too.
Roberts has indeed displayed how very untrustworthy and wholly without moral center she is. She should have recused herself from anything to do with Colarusso months ago, instead she feigned a level of ignorance about her transaction with Colarusso which, if true, should have gotten her fired for sheer incompetence. The fact that she sits on the board of one non-profit and acts as the executive director of another that have both taken donations from Colarusso (hey, birds of a feather) is the kind of red-flag that exactly no one is expected to look past.
DeleteThe fact that she remains in her position at the City really speaks to the low level of accountability and trust the mayor engenders. Whether he is too willfully naïve to do the right thing or too corrupt to care about the consequences to the community is something of a moot point, though if he wants to turn this tanker around, this is as good a place as any to start.
It will be interesting to see which, if any, of the documents Cheryl Roberts reviewed for Colarusso's FOIL request come to play in this suit, and how she and the City processed similar FOIL requests in the past.
Fun times ahead, I'm sure.
Well said. I’d only add that we have no assurance that Roberts, who’s notably bereft of principles, has actually recused herself. She’s well insulated from prying eyes, enjoys broad discretion behind an inactive but protective mayor, and is given to outright lying if that will advance her personal goals.
DeleteIt would be wise to take the Planning Board’s attorney at face value (I always do), and to attach significance to the newspaper report that Ms. Polidoro referred the Colarusso lawsuit to the allegedly recused Roberts.
Then consider (because Roberts already has) that if we learn she hasn’t actually recused herself, what can anyone do about it? Nothing. (Report her to the cronies at the NY Bar Association? Don’t make me laugh.)