Thursday, August 11, 2022

A Decision in the Case

In November 2021, the Planning Board made a positive declaration in the SEQR (State Environmental Quality Review) process, requiring A. Colarusso & Sons to prepare a Supplemental Environmental Impact Statement (SEIS). Colarusso responded by filing a lawsuit against the Planning Board, seeking an annulment of the Planning Board's positive declaration. Earlier this week, on Tuesday, August 9, a decision in the case was handed down by Acting Supreme Court Judge Henry F. Zwack. The gist of the decision is this: "[T]he haul road project is not the subject of further SEQRA review by the City of Hudson, and site plan approval is directed to proceed."

The following are a couple of interesting passages from the decision:
Colarusso argues its repair of the waterfront bulkhead should be classified as a Type II action, reflecting the limited dock repair that it was, which does not require an SEIS. Colarusso also argues that the City failed to properly designate the Common Council as the lead agency as required under the plain language of SEQRA. The determination was therefore arbitrary and capricious, effected by error of law and made in excess of jurisdiction. Colarusso also asserts that the Planning Board is also bound by the Town of Greenport's Planning Board negative determination as to the haul road and must issue a final determination of the pending site plan application. Colarusso also asserts that the Planning Board's assessment that the dock repair constituted a Type I action was arbitrary and capricious, not supported by the record, and the result of bias against Colarusso in that two Planning Board members were conflicted because of their relationship with a group opposing the commercial dock and mining operation, known as "Our Hudson Waterfront." Colarusso further argues that the Mind [sic] Land Reclamation Law preempts the Planning Board's attempts to regulate Colarusso's operation, Colarusso has constitutionally vested rights, and the declaration is an unlawful restriction of interstate commerce. [Pages 8-9]

Information about the Mined (not Mind) Land Reclamation Law can be found here

Colarusso has yet to begin the approved improvements to the haul road, which includes portions within the City of Hudson, as it continues to be embroiled in City actions which make forward movement on the project nearly impossible. According to Colarusso's counsel, at a regular meeting of the City's Planning Board on July 14, 2020, the haul road improvements had not begun because the City has not approved their site plan for two way traffic on that portion of the haul road that enters the City. Counsel further stated that he would not advise his clients to complete improvements to the haul road if two way traffic could not continue into the City. Counsel further noted that the County Planning Board has approved the haul road, which will include two lane traffic. The City's Planning Board erred when it attempted to equate the haul road, an already SEQR approved project, with the conditional use permit sought by Colarusso for the dock. [Pages 12-13]
The entire decision can be found here.

This is not good news for the Hudson waterfront.



  1. Ignorant right wing wacko judge who has no grasp of the basic facts of the matter.

    1. Not too sure about the second part of that (don't know J. Zwack at all so can't comment on the first). About 8 of the 15 pages comprising the decision is a dry recitation of the facts. Not that there aren't a fair share of typos and transpositions but that's not unusual in an opinion (or any other papers for that matter). The outcome seems to be consistent with the "one bite at the apple" rule though I've no doubt a counter argument can be made (when can't it?). I'm left wondering if you'd still think J. Zwack an "ignorant right wing wacko" if he'd ruled in the PB's favor.

    2. Zwack was the former Republican boss in Renssealaer County, until he resigned after being indicted on perjury and ethics charges, which he managed somehow to shuck off.

  2. Eminent Domain, it's a simple solution.

    1. I said that 25 years ago when St. Lawrence Cement (Holcim) was shot down by the State thanks to Friends of Hudson, and was 'blown off' by one or two on Waterfront Committee.

  3. By mindlessly parroting the misnomer "haul road," Judge Zwack has doubled down on the familiar and unwitting error of many Hudson officials and residents over the years, and despite repeated the warnings of former Alderman John Rosenthal who first discovered the ruse.

    Zwack's specious premise is found on page 5: "The haul road [sic] is within the 'life of mine' recognized and permitted by the DEC ..."

    That's no small error, as Zwack's assumed area of the "life of the mine" provides the foundation for the rest of his decision. This mistake alone offers good ground for the City to begin an appeal.

    Colarusso's actual DEC mining permit (Permit ID # 4-1040-00011/00001, pursuant to the Mined Land Reclamation Law) defines a "1,222-acre Life of Mine."

    The 2014 deed transfer from Holcim US to Colarusso Ventures differentiates between the (1) waterfront, (2) the South Bay, and (3) three different mine parcels that are all wholly within Greenport: the Main Mine of 930.33 acres; the Northern Mine Parcel of 44.996 acres, and the Southern Mine Parcel of 251.634 acres.

    The deeded "mine" portion of the entire property adds up to 1,226.96 acres, or about 5 acres more than the 1,222 permitted by the DEC.

    By definition, no area in the City of Hudson is within the DEC permit's "Life of Mine."

    According to the Mined Land Reclamation Law, a "Mine [is] any excavation from which a mineral is to be produced for sale or exchange, ... all haulageways [used] in connection with such excavation, and all lands included in the life of the mine review by the department."

    Under a separate definition, Haulageways are "all roads utilized for mining purposes, together with that area of land over which material is transported, THAT ARE LOCATED WITHIN THE PERMITTED AREA" [emphasis added; NYS Environmental Conservation Law, Section 23-2705, numbers 5 and 4 respectively.]

    Again, the DEC permit for the Colarusso encompasses only 1,222 acres in the state's "Life of Mine" review.

    Moreover, an additional permit modification for a "facility location in Greenport" was required for Colarusso's "haul road" proposal, a section the applicant particularly emphasized in its 2016-17 Colarusso haul road "Project Narrative":

    "Modification #1 -This modification authorized construction of a new access road entrance to the facility FROM ROUTE 9 ..." [emphasis added].

    Note that the life of mine permit modification was NOT to build a road from the waterfront to the mine, nor even from Route 9G to the mine, because those areas were never included in the life of mine in the first place.

    Judge Zwack's entire premise is in error when he says that "Colarusso submitted a site plan ... to renovate and expand the haul road," as if a haul road already existed in the city.

    According to the DEC permit and the above-quoted Laws of New York state - definitions of Zwack's specific reasoning - the judge got it totally wrong.

    On these errors alone this sloppy and baseless judgement should be appealed.

    - Timothy O'Connor

    1. Even beyond that, the so-called “haul road” did not exist until Holcim/O&G just started running trucks on it, with no permitting process at all, c. 2006.

      As the Valley Alliance pointed out repeatedly in the LWRP process, and this more recent one, there never was a road there—despite what bad actors like the company Cheryl Roberts tried to argue.

      Not even in the failed permitting process for the SLC project did the company attempt to claim this was a road.

      On the contrary, it referred over and over again to it as an “abandoned railbed.” They did not attempt to claim it as a road, and only vehicles which were contemplated on it were for emergency access in case of fire or maintenance needed to their proposed conveyor.

      As Don Christensen and others further pointed out, this began as an elevated rail trestle, which gradually was filled and/or silted in, restricting water flow int the South Bay.

      Holcim/SLC even attempted to do work on the abandoned railbed c. 2004, and was almost immediately ordered to stop by DEC and Army Corps.

  4. Here is the relevant passage from the letter from DEC Commissioner Seggos:

    "In designating the Greenport Town Planning Board to serve as lead agency for the haul road project, this decision in no way limits the jurisdiction or responsibilities of the other
    involved and interested agencies - particularly the City Planning Board, and I
    encourage the Town Planning Board to seek and use the expertise of the City Planning
    Board as well as the DEC and the DOT in evaluating potential impacts."

    Zwack didn't even bother to read the most important document in the case. And further, Greenport didn't bother to look at the impacts of the Colarusso operation on the City of Hudson. As Lead Agency, Greenport had the responsibility to review every aspect of the application, and they didn't even try. I was in the room for those sessions. Zwack should embarrassed to issue such an ill-informed, capricious decision. Hopefully the ruling will be appealed in front of a competent judge.

  5. It’s a surprisingly sloppy, impatient and thinly-argued decision, one whose actual consequences are not even fully clear from the order.

    It’s not even clear if Zwack understood that the haul road is only a portion of the review; he seems to think that’s the whole enchilada, which of course anyone who has seen the applicaitons and attended hearings know it is not.

    The Planning Board ought to appeal Zwack’s decision, as he has barely even bothered to justify his reasoning, and appears to misunderstand the review (and the decisions, from Melkonian and Seggos) almost completely.

  6. I am so grateful for all of you, that have worked so hard and for so long and have never given up.
    I thank you, the River thanks you, all creatures big and small thank you.

  7. It's really a shame that important decisions like this are handled by judges with a flimsy grasp of all the history and context surrounding the issue. If Zwack had taken the time to read the letter from DEC Commissioner Seggos, it would have been clear that Hudson has no obligation to be deferential to Greenport in the SEQRA review.

  8. It's totally depressing how incompetent these judges and lawyers are and that it always falls on citizens to defend themself. I too am grateful to Sam, Peter and Timothy O'Connor for their dogged pursuit of the facts in this case for the last 25 years. I do fear for the future of this country. (And the world for that matter).

  9. 1.

    Firstly there's the court's demonstrably incorrect premise that within the City of Hudson a "haul road is [also] within the 'life of the mine,' as identified and permitted by the DEC" (Zwack, p. 5). That's entirely incorrect as I've detailed above.

    On this and other incorrect bases, Judge Zwack - who's either very stupid or very corrupt - proceeds to overturn the Melkonian judgement which recognized the City's right to review the waterfront project, something which was never reviewed and is clearly not within the DEC's Life of Mine permit on which Zwack's judgement relies.

    When two justices contradict one another, the loser will only find relief in the appeals process.

    Further, with his inconsistent use of the phrase "haul road," Zwack conflates the present (existing road) with the future (proposed road).

    For example, Zwack contradicts Judge Melkonian by concluding that the "The City's Planning Board erred ... [because] Colarusso has already gone through an exhaustive environmental review and further scrutiny is neither warranted nor required" (pp. 12, 13).

    However, the Planning Board's review not only owes nothing to Greenport's review of a merely PROPOSED action, as Peter has already pointed out, the Board has every obligation to the city's Zoning Code and to a Type I environmental review of the effects on the city's waterfront from the existing private road. Does the "private road" (as it's called in the C-R Code) warrant a conditional use permit? That question has never been asked before, and the review of the entire property and all existing uses is critical before the Planning Board denies a conditional use permit altogether and finally realizes what Ken Dow and Judge Melkonian realized: that "[the] non-conforming use as a commercial dock operation [has] ceased" (Zwack, p. 7).

    But the sloppiness in Zwack's grasp of the basics gets even juicier. Because Melkonian had found that the City Planning Board had erred in its segmentation argument against Greenport, Zwack inadvertently revives the very segmentation that Judge Melkonian deemed impossible.

    The effects on the waterfront of the proposed haul road - never mind the existing private road - have NEVER BEEN STUDIED because the City lost its segmentation argument. That means they're two totally different projects. No segmentation means no connection whatsoever between the present bulkhead review and Greenport's now-concluded review of a proposed haul road. Yet for Zwack "Colarusso has already gone through an exhaustive environmental review" (p. 13).

    Consequent on Melkonian's judgement, the Planning Board's new and ongoing environmental review must render a hard look at the "entire property." To do otherwise, as Zwack has done, is to assume an overlap between the City's and Town's environmental reviews which cannot exist if there was no segmentation when Greenport's omitted the port.

    Zwack's conclusion only works by assuming there was some segmentation after all. According to Melkonian there wasn't.

    Essentially, Melkonian agreed that Greenport's environmental review for the *proposed* road was completed properly, and that the City may proceed with its own SEQRA review (which would have concluded before Greenport's review had the same applicant not sued the City Planning Board!) which must include the *existing* private road.

    If there was no segmentation by Greenport as Melkonian already concluded, then these are two different and ENTIRELY UNRELATED actions, each subject to its own discrete review, and despite Colarusso's - and arguably Zwack's - advantage in conflating them.

  10. 2.

    I'd like to review some of the reasons Judge Zwack is either subintelligent or an outright crook:

    Zwack assumes that the "haul road" already exists, using it now this way, now another, for making different arguments. This is sophistry, and easy to expose.

    Zwack believes that this nonexistent haul road in the city is also "within the life of mine." The DEC permit cited by Zwack actually reveals that the Life of Mine is entirely within Greenport. This is very easy to prove (see my above comment with all the information needed for an appeal).

    Zwack presents as factual Colarusso's claim that "the City failed to properly designate the Common Council as the lead agency as required under the plain language of SEQRA."

    Because this circumstance is not mentioned anywhere in the SEQRA language, not even in the state's "SEQR Handbook," on May 12, 2020 I posed this same question to two NYS SEQR Analysts, Jim Eldred and Scott Sheeley, in a conference call. Both agreed that, for the purpose of conducting an SEIS, the lead agency would fall "to the agency with jurisdiction," even if it was not an involved agency in the original SEQRA review. The two state SEQR Analysts' identical opinion was conveyed in a document to the Planning Board, and is in the record. Again, Zwack's misreading of environmental law is easy to disprove.

    Judge Zwack relies heavily on Colarusso's flimsy SEQR Type II argument exempting its action from review.

    Colarusso's claim of a Type II exemption which Zwack elevates to factual status was previously rejected by the City Planning Board in 2017. Remember back to when DePietro was the Board's Chairman and Mitch Kohsrova its counsel. To his credit, Mitch was the very first person to correctly interpret the CR District's cessation of nonconforming uses as soon as the landowner made a proposal. Later, Ken Dow employed this "unique" circumstance in his successful defense of the Planning Board before Judge Melkonian. The Type I vs. Type II debate from 2017 must be reviewed during an appeals process which the City would be insane not to pursue.

    1. Remember when I said it’s dangerous to predict what New York State judges may do? Well, here we are...

  11. It's a quagmire of legalistic mumbo jumbo that will take years of court battles, legal fees and will never be resolved in the favor of the city.

    Here's a simple 7 step fix.
    1- condemn the industrial structures and shut the place down.
    2- Test the soil for industrial contamination
    3 - declare eminent domain and take possession.
    4 - calculate the cost of removing the condemned structures and remediating the polluted and compacted soil, restoring the haul road back to wetland, etc.
    5- appraise the sale value of the property in it's current condition, as a recreational plot, park or campground (the only approved use), then subtract the cost of removal of the structures, soil and road remediation.
    6- pay them that amount for the property.
    7 - begin the process of applying for grants and other funding to restore the property.

    Of course they won't agree to any of this and they can argue that to a judge.

  12. The most embarrassing thing about this situation is the fact that all the other Hudson riverfront towns are doing great things with their waterfront. Poughkeepsie, Newburgh, Kingston, Coxsackie, Athens, Beacon, and others are making waterfront improvement a high priority for their community. Here in Hudson, the bar is set extremely low. A long series of deadbeat local governments has failed to muster up the political will to make the waterfront more attractive and accessible to residents. We look across the river at the beautiful Catskills, there is a wonderful 19th century lighthouse, an island, and the picturesque village of Athens across the water. But our side looks awful, in spite of the fact that so much other good development is happening in Hudson.