We’re writing regarding the recent and, frankly, bizarre ruling in the Colarusso matter. We trust that the City will fully and vigorously defend the Planning Board, as it would any of its agencies, from repeated nuisance suits from those with enough money to be exempt from local codes.
But just in case there is anyone wishing to encourage such manipulation of City laws and regulations, we offer these brief observations for your consideration:
- The Waterfront is potentially Hudson’s greatest asset for creating jobs and other economic, educational, housing and recreational opportunity for residents, especially those who may not have benefited from development of other areas such as Warren Street. We have argued this for more than 20 years, as have others before us. That opportunity must not be cast away hastily or lightly, due to legal harassment by one Greenport company.
- The ruling is very sloppily argued and needs to be appealed if only to correct many fundamental errors of fact and law. If these are left standing, it would prejudice the remaining review of this major project, which still has other outstanding components besides the so-called haul road. . . .
- No one will serve on local boards if the City does not have their backs. Those who volunteer to serve on the Planning Board, ZBA and other City agencies deserve to know the time and effort they devote will not be wasted if a wealthy applicant keeps filing nuisance suits. For example, we understand that at least one previous Planning chair only agreed to serve on the assurance the City would support their findings, whichever way it decided.
- It would encourage others with the money to file endless lawsuits if this inaccurate and illogically-argued ruling is allowed to stand. Doing so would effectively create a two-tiered class system, wherein the City’s laws and regulations only apply to those who lack the resources to pay lawyers to try, try again with the courts.
- Funds already spent defending past suits and on the review will be wasted if this easily overturned ruling is not challenged with an appeal. This situation is very rare, Colarusso being the only applicant we can think of which has sued the Planning Board not once, but twice. The minor added cost of an appeal is a manageable and essential expense in the context of all the City’s budgeting over a period of 10-20 years.
- Zwack’s decision ignores the plain instructions of the DEC Commissioner who empowered Hudson to do its own review. In his 2016 resolution of the dispute between Hudson and Greenport, NYSDEC Commissioner Basil Seggos specifically stated that though he granted Greenport lead agency status for the haul road portion of the project, “This decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies—particularly the City Planning Board.”
- Zwack’s decision ignores the clear intent of the Hudson LWRP, as explained by the Department of State’s lead attorney and the then-City attorney. Taking questions from Council members prior to voting on this new suite of laws, DOS attorney Bill Sharpe stated that if any changes were made to the road, dock, or other portion of these operations in Hudson, the owner would have to undergo a full review of the whole project. City Attorney Cheryl Roberts promised that the new zoning would be “very protective” of the waterfront and provide the Council the “handle on the port and the causeway” which they wanted. . . .
- Zwack’s decision could effectively force illegal segmentation of the review. If allowed to stand, the court ruling goes against established SEQRA precedent which requires agencies like the Planning Board to consider the entire, overall impact of a proposal. The dock has no purpose for Colarusso without the road, and vice-versa. Cumulative impacts arising from an approval of either must be assessed as a whole, not just approved one-by-one. The Board should not be forced to violate SEQRA just because a judge was impatient.
- Any harm which Colarusso claims has arisen from this review is 100% self-inflicted. The existence of the local laws which caused this review was known, or should have been known, to the company when it bought property from Holcim. It disregarded or failed to notice that when they made changes to the dock, it triggered a full review of the entire project. At least 2-4 years of delays have been caused by Colarusso either suing Hudson, or refusing to provide necessary data to the Board. As such, the only harms and delays it has suffered were caused by its own actions and disregard for local zoning codes.
- The Planning Board votes which Colarusso dislikes were unanimous. It’s notable that despite Colarusso’s allegations against just two members, the Board has voted unanimously. The recusal of two members would not have led to different outcomes, since the others all also voted for a Type I declaration (6-0 vote) and Positive Declaration (7-0). This strongly suggests that whatever the personal views of each member, as a group they all came to the same conclusion. Moreover, if one opens this can of worms, in a City the size of Hudson it will be impossible to find any members to serve who someone will not accuse of bias. There are many instances we could cite of bias against those challenging the project both within the Board and in City Hall; but we haven’t sued every time someone disagrees with us.
- The City can stop the truck traffic on lower Columbia Street today if it wishes. The current operation has no local permits governing truck traffic, gravel loading, barge activity, dust management, etc. Meanwhile, the project has lost its grandfathered status through Colarusso’s own actions, and is the subject to an Order to Remedy. The City thus can demand that the Code Enforcement Officer order work to be stopped at the dock unless the Order to Remedy is satisfied by the thorough Board review which Colarusso so fears.
There are many other points which are tempting to make here, but we will leave it at that for now—and trust that common sense prevails in supporting a Planning Board with appeal, which is both sound legally and necessary to protect the City’s integrity.
At its meeting tonight, the Common Council went into executive session, inviting the Mayor to join them. The stated purpose of the executive session was "to discuss litigation." It is not known what litigation was discussed.