Wednesday, June 8, 2022

About Those 4.4 Acres

It's been nine years since The Valley Alliance announced its discovery that 4.4 acres of waterfront property included in the parcel sold by Holcim to A. Colarusso & Sons in 2015 actually still belonged to the City of Hudson, because the transfer of ownership in 1981 from the City to St. Lawrence Cement had been illegal.

At last night's meeting of the Conservation Advisory Council, Hilary Hillman told her colleagues that at a meeting the previous night of the Hudson Valley Collaborative, the group pursuing plans to prepare Hudson's waterfront for sea level rise, Paul Colarusso said that, despite a deed that indicates otherwise, Colarusso is acknowledging that the 4.4 acres is City property. 

Given that acknowledgment, what action must the City take to make this legally binding in perpetuity? 


  1. This probably requires a modification of the deed and adjustment of the tax map. Since the parties are not contesting the issue it should be a straightforward matter. But remember that we're in Hudson, NY, where things are always more difficult than they ought to be. There could be a serious liability issue here; what happens if a tragic accident happens on the 4.4 acres and there is subsequent litigation and the title issues still have not been properly resolved? In addition, there is the possibility of conflict with the railroad, which is presently seeking to minimize citizen access to the riverbank up and down the Hudson Valley. If the City finally claims the property, it would enhance our standing in any negotiations or court proceedings. But given that the Valley Alliance brought this issue to light many years ago and nothing has been done, there is little reason to believe that it will be resolved promptly or properly. In any normal community, city officials would be overjoyed to discover that they own a wonderful and important piece of waterfront footage. The failure of our leadership to deal with this situation is particularly egregious, given that Colarusso has a complex and very contentious review in front of our Planning Board. Allowing an industrial firm to enjoy presumptive use of that property when they clearly don't own in is an affront to the citizens and taxpayers, and a failure on the part of the City to uphold its fiduciary obligations.

  2. You have to take the to court and have a judge rescind the deed and issue one to the city. Colarusso could do it voluntarily, but somehow I doubt they would do that.

  3. The City already owns the land.

    It is only the County property records which must be corrected.

    Actual ownership vs. changing the records of ownership are two separate things.

    The City’s attempt to conduct an illegal sale of the acres in 1981-82, and subsequent filing of paperwork with the County to record that illegal sale, does not mean the City ever lost ownership—because there are specific laws about the sale of public waterfront land. It just means that the records must be corrected via a quick and easy legal filing.

    As former Planning Board attorney Ken Dow has repeatedly pointed out in detailed briefs, the City has *never stopped owning this land*. It owns it now, and has owned it continuously since at least the early 80s.

    The attempted sale of waterfront land was void from the moment that sale was attempted; ownership never vested with Colarusso. The City could not then (and cannot now) sell such public lands without the express authorization of the State Legislature.

    The Valley Alliance demonstrated in 2013 that the City never even sought—let alone obtained—such authorization, using both Common Council minutes and a search by a NYS archivist. In addition, this was further confirmed when the City asked a title firm to review our research, and he said we were correct. The Common Council President at the time flatly stated that the land belongs to Hudson. And more recently, counsel to the Legal Committee—despite being an overt Colarusso booster—also acknowledged the land is Hudson’s.

    Note that the law governing such issues is over 100 years old and is well-established. This is very specific to lands formerly underwater like these filled 4.4 acres along the Hudson River.

    The outrageous part has been that though this has been well-known to the City for some *nine years*, it still has not taken any action whatsoever to reclaim unique waterfront lands which belong to the people of Hudson. This is land which could already be enjoyed by Hudsonians. Instead, the City has dragged its feet, as did former Planning Board chair Walter Chatham, in an apparent attempt to skew the review on Colarusso’s behalf.

    … Because of course an acknowledgment that there is public land on *both* sides of the dock (the existing public park to the north, and what should become a public park to the south), the impacts of their operation have a much more difficult time passing muster against both Local and State laws.

    1. I don't know if you are correct about that. If Colarusso is named as the owner on the deed filed with the county, are they not the legal owner? If the deed is incorrect as filed then it has to be changed. The city should demand Colarusso transfer the deed into the city name and if they won't do that the city has to file a complaint with the CC court and have a court order the deed be changed. The city attorney should look into that, isn't that their job? If the proofs are in place and Colarusso admits the city owns it, this should not be that hard to do. They should do it ASAP as their may be time limitations if the deed is not legally contested in court.

    2. Yes, I am right. Or rather, the former attorney for the Planning Board is. The laws regarding waterfront lands are extremely strict. This is not like some ordinary real estate transaction. The Citu absolutely cannot “alienate” such lands without the State legislature’s approval. It failed to do so in this case.

    3. From Dow: “ the consequences of noncompliance with such requirement is that the purported land sale and deed conveyance was and remains void. See, e.g., Heckman v. United States, 224 U.S. 413, 438, (U.S. Supreme Court, 1912); (In matter related to alienation of Indian lands without required statutory authorization; “...conveyances obtained in violation of restrictions would be void. That, of course, is true”); Solar Line, Universal Great Brotherhood, Inc., v. Prado, 100 A.D.3d 862 (2nd Dept., 2012) (“deed is void on the ground that Prado did not obtain court approval for the transfer and, thus, the transfer violated Not–For–Profit Corporation Law §§ 510 and 511.”); Potter v. Collins, 156 N.Y. 16, 30-31, (Court of Appeals, 1898). (“The resolution of the common council in 1851 was void, inasmuch as it purported to do something not within the powers of that body...[T]he title of the municipal corporation to the public streets was held in trust for the public, and the power to regulate those uses was vested solely in the legislature. It might delegate that power...but, without such delegation, any such act by the corporation...would be invalid.”); Marsh v. Ne-Ha-Sa-Ne Park Ass’n, 25 A.D. 34, 39, (3rd Dept., 1898) (Distinguishes between real property tax sales in which irregularities are, on one hand, in respect to form and manner and, on the other, “jurisdictional in they sense they lie at the foundation of the...power to sell...[and] cannot be made at all, and...cannot be cured.”); City of Rochester v. Carnahan, 57 Misc.2d 704 (Sup. Ct., Monroe Cty., 1967), (“if the properties in question are part of the lands conveyed to the City for park purposes by Henry S. Durand in 1908 as claimed by the City, the deed to the defendant is void and must be set aside and cancelled.”).”

    4. More from Dow:

      When a municipal transaction such as this is void because it was outside of the authority to act, it cannot be made valid, ratified, or its purpose achieved by subsequent action or failure to act. Moreover, there is no time period after which a void action becomes effective. To that point, here are a few illustrative passages from New York cases:
      “[D]efendant's contention that the City is estopped by its conduct to deny the validity of
      the deed must fail, because the strict rules protecting public park lands of municipalities from improper conveyance or encroachment may not be circumvented by the mistaken or irregular conduct of the municipal employees.” City of Rochester v. Carnahan, 57 Misc. 2d 704, (Supreme Ct., Monroe Cty., 1967).
      “[S]upposing that the canal commissioners had made a direct grant of a perpetual and irrevocable right to the basin, in face of the law of 1820, which provides, in substance, that no such grant can be made; the transaction would manifestly be illegal and void. Where no express grant can be allowed, the law will not resort to the fiction of an implied grant so as to create a prescriptive right. If it would, the whole policy of the prohibitory statute might be subverted by the supineness or willful fraud of public officers, and the State deprived of most important rights.” Burbank v. Fay, 65 N.Y. 57 (Court of Appeals, 1875).
      The law in New York, when dealing with a municipal entity, is that the counter-party must know the authority by which the municipality purports to act:

      “‘The persons who contract with municipal corporations must, at their peril, know the rights and powers of the officers of such municipalities to make contracts and the manner in which they must make them. Any other rule would destroy all the restrictions which are thrown around the people of municipalities for their protection by the statute laws and the Constitution, and would render abortive all such provisions.’” Town of Guilderland v. Swanson, 41 Misc. 2d 398 (Supreme Ct., Rensselaer Cty., 1963).
      Under the laws of New York and well-established principles that go back many, many years, the purported 1981 conveyance of the 4.4 acres to Holcim (subsequently to Colarusso) is a nullity. The law treats it as never having happened. Because the City had no authority to give up its rights and title to the parcel, the City’s title and rights to the parcel cannot be abandoned,
      forfeited, or lost, no matter what City officials do or fail to do, and no matter how much time passes.
      This is not a matter of two similarly situated private entities claiming the same land. This is a very particular kind of matter involving a municipality’s authority—or lack thereof—to sell a piece of waterfront land, and the plain result that is mandatory and inescapable under clear and explicit New York law. For additional background, I have attached two very short cases, which address fundamental points of this matter: Gladsky v. City of Glen Cove (“a municipality may not convey, alienate or divest itself of title to the various types of property included within the ambit of General City Law § 20 (2) except by special act of the Legislature.”) and City of Geneva v. Cayuga Oil Co. (neither levying and collecting of taxes nor failures of public officials estop the municipality from asserting its ownership of lands).
      In that light, I believe that the Planning Board would be making a serious mistake to proceed on the basis of Colarusso’s ownership of the 4.4 acres. The status of this parcel is fundamental to evaluating the dock operations’ impact on “adjacent properties,” as I address on pages 7 – 8 of my earlier July 31 memorandum to the Board. It is crucial that the Planning Board get this right.

  4. On multiple ocassions I have told Planning Board members that the 4.4 acre issue needs to be cleared up before proceeding with the Colarusso review. This situation is beyond ridiculous-- how in the world can an agency of the City entertain a land use application when the applicant doesn't even have proper title to all the acreage in question? Some competent legal advice would be helpful...