Sunday, August 14, 2022

Another Comment on the Court Decision

On Friday, Gossips published a statement from the Mayor's Office about the decision handed down on Tuesday by Acting Supreme Court Justice Henry F. Zwack in the lawsuit A. Colarusso & Sons v. City of Hudson Planning Board. Today, Our Hudson Waterfront published the following statement on Facebook:
With little regard for precedent, or the impacts on Hudson and its future, a Supreme Court Judge has ordered our Planning Board to cease its review of the Colarusso "haul road" and approve the company's disastrous expansion plan ASAP. This will bring a deluge of gravel trucks to the waterfront, threaten the City's ONLY riverfront access, make road and rail crossings far more dangerous, and depress economic activity that would otherwise create real jobs for people of Hudson.
If you think this stinks--as we do--then contact your alder, the mayor's office and the Planning Board and demand the Board appeal this horrendous decision.
We have the power to stop this travesty, but we can only do it if you step up. Demand real environmental justice. Demand the waterfront Hudson deserves.
The Facebook post was accompanied by these pictures.


  1. I've begun looking for anything at all that's true in this judgement. Is it still Swiss cheese when it's all holes and no cheese? His judgement reveals holes and cracks at every level.

    Zwack repeately conflates words and categories that are already defined in law. He supposes that the Code's "private road" is a state-recognized "haul road" (cf. "category error").

    Indeed, he doesn't seem to know that "dock operations" are not a descriptor of a general activity, but a specific function defined in the City Code which includes the private road. This mangles his idea that a "conditional use permit would trigger SEQRA review for continued dock operations" (p. 7) because he assumes that the dock operation is only at the dock.

    Here, Zwack introduces a Colarusso quotation which unfavorably quotes the Planning Board:

    "The Planning Board, according to the Petition-Complaint, defined the scope of the review to include the haul road: 'the Project encompasses all aspects of the proposed dock operations on the Property incuding transportation to and from the dock'" (Zwack, p. 8).

    But the Planning Board never included "haul roads" in its review because the Board members know there aren't any haul roads in the City of Hudson. However, the Code obligates them to review the existing private road (see Melkonian).

    But I've saved the best for last. Regarding the two Planning Board members singled out for their alleged bias, Zwack focuses solely on whether or not these members, in the words of the Colarusso Petition, "advocated for the issuance of the positive declaration THAT IS THE SUBJECT OF THIS PROCEEDING" (Colarusso Petition, p. 53; emphasis added).

    For Colarusso, "the subject of this proceeding" is its reargument of the case it already lost before Melkonian, that there cannot be a positive declaration for a Type II action such as replacing a bulkhead.

    What Melkonian learned from Dow is that the bulkhead work merely triggered the need for a permit for the entire operation.

    What Colarusso is really implying - and what Zwack swallowed hook, line and sinker - is that the two members misled their colleagues into thinking that anything but a Type II action could be declared for the bulkhead work alone.

    In Zwack's [mis-]judgement, the resurrected Type I vs. Type II canard is the only issue which questions the propriety of the two members. This error will be instructive in the appeal, and also relieve the Board members of this insult to their reputations.

    Can Zwack be impeached? The City's appeal of this careless decision will ineluctably lead to his professional embarrassment.

  2. It's really a shame that a complex land use issue gets dropped on the desk of a judge who has no grasp of the history and context of the matter. Besides his obvious bias toward an industrial firm, Zwack didn't know anything about the myriad details surroundig this case. He was viewing in the abstract from a desk in another county. At some point a legal challenge will be filed, and hopefully a more competent higher court will reverse the decision and allow the Hudson Planning Board to conduct a proper review.

    1. I disagree in the strongest terms. This matter is less about land issues than it is law issues and logic.

      If he's even honest, Judge Zwack only lacked an understanding of the Melkonian decision (yeah, that trifling thing). It doesn't matter where or when he'd be reading it because logic is the same everywhere.

      Zwack's ruling is a wounded beast thanks to the plaintiff's leading him by the nose. It's incredible to think, but Zwack's supporting argument - lifted straight from the Colarusso petition - is the identical argument Colarusso already lost with Melkonian. Isn't that just astounding?!

      I trust that the Planning Board comprehends its excellent position. After winning the appeal and then returning to the review - a win which specifies reviewing the "private road" - Colarusso will return a much, much humbler applicant.

      A good judge wouldn't need local knowledge to pierce the plain language of the Melkonian decision. A good judge pays attention while reading.

      Don't forget, this SEQRA review was merely triggered by the bulkhead work. They convinced Zwack that the bulkhead is immune from SEQRA, but Ken Dow already convinced Melkonian that the proper extent of the review is the entire property. That is certainly a matter for SEQRA.

      Zwack rejects the Board's required review (justified ahead of time with the City's 2011 SEQRA Findings Statement) because Zwack thinks the review is restricted to thing which merely triggered it - the bulkhead work. Zwack's judgement is really that bad! And it has nothing to do with his limited knowledge of South Bay. Behind his fancy legalese the man can't think, or else he's a crook.

      The Planning Board is celebrating right now ... right? Even the now-guilty verdict of the two Board members' alleged conflict of interest originates in Zwack's wrong premise. Incredible! They should register private complaints about Zwack's wrong premise in determining their guilt. We do have a County Board of Ethics which can read. Could the members' letters be attached to the appeal somehow? The Planning Board should inquire with their jubilant lawyer.

  3. A friend of mine lived in a house the Govt. wanted to run a railroad through. It was taken by eminent domain and they ran it through. Simple.

  4. It seems to me that there is a lot wrong with this decision—too much to go into in this post. I want to address one thing, though: the Court’s lack of authority to issue, at this stage, its decision ordering the Planning Board to proceed with approval of the road, or anything else purporting to settle any issue on the merits, as opposed to just determining whether Colarusso’s claims should be dismissed or allowed to proceed further for full consideration. The Court did not have the power, at this stage of the proceeding, to issue the order that it did.

    The Court claims authority to make its declaratory judgment here under a couple of cases, stating “In a declaratory judgment action, a motion to dismiss for failure to state a cause of action empowers a court to grant a judgment on the pleadings, notwithstanding the absence of a motion for summary judgment,” and citing two cases (identified below) that purport to establish such authority. However, the Court inexplicably ignored the very substantial limitations upon making such an expedited judgment, which are plainly laid out in the cases. In reading those cases, it is explicitly stated that the authority the Court claimed to be acting under is available ONLY when two conditions are met, neither of which were satisfied in the Colarusso proceeding: 1) that “there are no issues of fact,” (Matter of Kerri W.S. v. Zucker, 202 A.D.3d 143), and 2) the party against which the judgment is made has been given express notice that expedited judgment is being pursued. “A court may treat a pre-answer motion as one for summary judgment if it ‘give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to ‘deliberately chart a summary judgment course.’” (Matter of Dashnaw v. Town of Peru, 111 A.D.3d 1222). As far I as can see, no such intention was expressed, and no such notice given.

  5. (Continued)
    Zoning determinations are fact-heavy. This matter certainly is. Furthermore, zoning and planning boards have the authority to weigh the credibility of factual claims presented to them. “The Planning Board had the discretion to weigh and evaluate the credibility of the reports and comments submitted to it.” Viserta v. Town of Wawayanda Planning Board, 156 A.D.3d 797. Furthermore, “[I]n an article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder.” Bennett v. Zoning Board of Appeals of Village of Sagaponack, 170 A.D.3d 716). In light of the course of this matter and Colarusso’s penchant for distortion and omission (including the distortions, mischaracterizations and misrepresentations set out in their petition), it is hard to believe that there is no dispute between the parties in relation to any of the material facts of this case, and the existence of any material disagreement over underlying facts in the matter precludes the Court from issuing a declaratory judgment at this stage of the proceeding.

    In short, for a Court to issue a judgment at this stage, as happened here, the party against which a declaratory judgment is made in connection with a motion to dismiss must have fully pleaded its side and completely laid out its contentions and factual allegations, and there must be a common acceptance between the parties of all material facts. Those two conditions were not met. The Planning Board, having made only a motion to dismiss, has not yet even submitted its Answer—the pleading that accepts or rejects the Petitioner’s allegations of fact—so consent on the facts has clearly not been established. For either and both of these reasons, the Court’s decision and order was unauthorized, impermissible, arbitrary, and must not be allowed to stand.

  6. (Continued)
    Moreover, it would be a dereliction of duty for the Planning Board NOT to appeal, and to accept this judgment, when there is such a strong case to be made that the Court’s decision was not only wrong, but beyond the Court’s lawful power. The City Code mandates that the Planning Board is the body empowered to make determinations regarding special use permits and site plan review—not the Common Council, and not the Mayor. Certainly, that exclusive and extremely important power that has been entrusted to the members of the Planning Board should never be voluntarily or easily surrendered. You, the Planning Board, have the obligation to the citizens of the City to do your utmost to ensure that the City Zoning Code is respected and applied, and to fail to pursue an appeal against this very poor and unauthorized decision of the court, and to reclaim your rightful review power, would be an unforgivable abdication of your duties and obligations.

    Ken Dow

    1. Bravo Mr. Dow! Great to have you back!

      I'd add that with the exception of some minor arguments, every issue in Judge Zwack's decision relies ultimately on his re-litigation of key matters already settled by Judge Melkonian.

      The minor exceptions include: the city's alleged plan to "regulate" as an affront to the Commerce Clause (unsubstantiated hearsay); an uncritical acceptance that NYS mining laws apply to the CR District's private road which was never a "haul road"; the mistaken notions that the Planning Board must defer to a prior uncoordinated review by NYS DEC (already contradicted by Melkonian, as you well know), and that only the original lead agency may conduct a Supplemental EIS, which is utter nonsense.

      Everything else in Zwack - even the judgement about the alleged conflicts of interest - all of it derives from Zwack's seeming "overturning" of the Melkonian decision. From first to last, the entire Decision and Order is a travesty, save Zwack's acknowledgment that the company lost the right to operate on its Hudson property years ago!

    2. Not wanting to come up with the money to buy the property aside, what are the legal obstacles, if any, preventing the city from taking possession through eminent domain?

    3. You must not have been in Hudson 11 years ago, when many people who'd end up disappointed believed that eminent domain was the answer. It's because of that failed effort that you won't find many people engaging you here. "Not wanting" to find the money, as you put it, has nothing to do with it.

      Eminent domain is a powerful tool, even when a municipality wields it to seize private homes in order to advance a private enterprise, see Kelo v. New London, 2005:

      In Hudson, though, it's about two kinds of currency, political and financial.

      As it's already been explained to you by someone else, you'd have to be prepared to compensate Colarusso for the entire value of its company, property and all. That's serious money. It would take a fortune. And again, Hudson has already been through such an effort.

      As for political capital, I'd say that Hudson is the most fickle municipality of all, if it weren't for all the others.

      Unless you've got the money, please don't siphon off the public's limited attention span on an idea already attempted and already failed, spectacularly I'd say. Roll up your sleeves and do the serious work of digging into the issues.

    4. Are these facts or or are you talking out of your modem? Colarusso has a huge gravel operation, the amount of gravel they move through the dock is miniscule compared to the mountains they move by other means. It isn't going to destroy their business if they can't use the dock. Before they bought the dock, they had the quarry and moved gravel. So the idea that you would have to pay for the entire value of the company isn't correct. What you have to pay is a fair market value for the vacant land which is worth what? It could only be sold for recreational use. It is polluted, compacted and has two huge decrepit structures on it that should be condemned. I doubt it's worth much at all.

    5. As I say, you must not have been in Hudson 11 years ago to be so eager to reinvent the wheel now.

      I also wrote to you that you must "be prepared" to compensate Colarusso for the entire value of its company. Being prepared means not assuming that you know a court will agree.

      Given even the slightest possibility that a court will disagree with you, you've now lost the political will of your fellows and your local government.

      The city's been through all of this already, and you are ignoring histories which preceded your arrival. Give it up. Story over. Discussion over. Bye.

  7. Stepping back from the legal case, remember this: At no time in this awful saga have the actual impacts on Hudson's environment, quality of life, or economic future come into play. Greenport's Planning Board, in approving the truckway, did nothing to explore this--they just didn't care to. And Judge Zwack's decision is meant to make sure Hudson's Planning Board doesn't do it either. This is a travesty and if the city doesn't appeal it, it's governing malpractice.

  8. If the Planning Board had initial doubts about making an appeal (I don't know that it did), then its members were only perpetuating the timid and self-doubting culture of the Planning Boards that preceded them.

    To pick a recent example and with this same application - of which there are countless others - the current Board let whither a property dispute with the NYS Office of General Services (OGS) which citizens had researched for two decades before Chairman Betsy Gramkow recognized its significance. If nearly half the Colarusso dock plus the "4.4 acres" had always been the property of the State of New York, then OGS which oversees "lands under water" is the last state agency that would ever admit it. The state must be forced into a corner, a project which Chairman Gramkow only had enough time to initiate. Given Albany's enthusiasm for mining, she got lots of promises but, in the end, OGS waited out her term. The state was rewarded by the renewed timidity of subsequent Boards.

    Whether out of timidity, ignorance, or simple loss of energy, the current Board simply let Chairman Gramkow's inquiry die on the vine. (The last statement from OGS was yet another in a long line of non-answers.)

    If anything can be learned from Judge Zwack's disgraceful work product (shouldn't he be removed?), this and every Planning Board should begin by examining its own, crippling timidity. Time and again that presents the greatest obstacle to the "planning" part of their function.

    (On behalf of Don Christensen, foremost, and several others who've labored for years on the OGS issue, I'd be ecstatic if any Board member would signal their interest in this amazing, slow-motion assimilation of the state-owned portions of South Bay into private hands. Failing that, I'd like to find a permanent home for our research for some future generation to wield.)