Regular readers will remember that, in December 2021, A. Colarusso & Sons filed a lawsuit, its second, against the Hudson Planning Board. (The previous lawsuit was dismissed in January 2019.) Colarusso's second lawsuit was filed soon after the Planning Board made a positive declaration in its review of Colarusso's application for conditional use permits for its operations at the dock and in the City of Hudson. A positive declaration in the SEQR (State Environmental Quality Review) process means that the Planning Board found at least one significant adverse environmental impact, and the environmental scrutiny of the project must continue.
partial motion to dismiss the lawsuit. In May, Colarusso's attorneys filed an opposition to that motion. On June 6, attorneys for the Planning Board responded to the Colarusso filing. The following is a summary of the defense response to Colarusso's opposition.
Colarusso Claim A: This Matter is not ripe for review, based on the following four arguments:
1. Colarusso: The direction to prepare an SEIS [supplemental environmental impact statement] is outside of SEQRA's requirements because the bulkhead repair is a Type II action.
Response: Application here is not for approval of the bulkhead repair, but rather, as Petitioner's counsel concedes, it is for a conditional use permit.
2. Colarusso: The Planning Board is not the Lead Agency--the Common Council is the lead agency.
Response: Under applicable local law, the Planning Board, not the Common Council, approves conditional use permits.
3. Colarusso: The City Planning Board's SEIS directive should be annulled because the Town of Greenport Planning Board's prior negative declaration obviates the need for an SEIS.
Response: This argument is based on a conflation of the two applications Petitioners submitted to the City Planning Board. The Town Planning Board issued a negative declaration concerning the haul road improvement project. Colarusso's pending application before the Planning Board is for site plan approval of the portion of Colarusso's private road that is within the City of Hudson. Colarusso's conditional use of the dock is a separate permit application that is the subject of the non-final positive declaration at issue. The Town Planning Board did not, and could not, evaluate environmental impacts related to use of the dock, because the dock is not part of the Town. The dock is entirely within the City of Hudson.
4. Colarusso: The positive declaration is ripe for review because of the "pervasive bias" of two board members out of seven.
Response: The claims of bias lack force. A board member with a sufficiently high "level of personal financial interest" may be subject to disqualification. . . . Petitioners do not base their argument on even a de minimis financial interest, rather the allegations are based upon mere expressions of personal opinion, some of which are not even from the two Planning Board members at issue. The fact that a public official "expressed opposition" to a project "before and after" joining the relevant body, "and prior to voting on the challenged resolutions" does not "disqualify them from participating in the deliberations of voting on those resolutions."
Colarusso Claim B: The Second Melkonian Decision is not relevant to this case.
Colarusso: The Second Melkonian Decision has no preclusive effect on any of the claims asserted in this action because the Supreme Court did not opine in any way on the scope or type of SEQRA review warranted, only that the Planning Board had jurisdiction to engage in a SEQRA review.
Response: Petitioners were challenging the Planning Board's authority to make any SEQRA declaration at all. The Melkonian decision considered several arguments, and accordingly Petitioners are barred from relitigating those matters in this proceeding.
You can check out the documents in the case here. The index number is E012021017875.