Friday, August 12, 2022

Regarding That Court Decision

Today, the following statement was issued by the Mayor's Office about the decision handed down on August 9 by Acting Supreme Court Justice Henry F. Zwack.
The Mayor is aware that, on August 9, 2022, the Columbia County Supreme Court issued a decision and order denying the Planning Board's motion to dismiss the case of A. Colarusso & Sons, Inc. et al. v City of Hudson Planning Board. We understand that the Planning Board is evaluating the decision, and all of its options, with its legal counsel. The Mayor will be speaking with all relevant parties within the City's administration to discuss the City's next steps with regard to this decision and order. 
Gossips is inspired to accompany this statement with these photographs, recently provided by a reader.


  1. Our Planning Board screwed around with the Colarusso application for six years and somehow couldn't find the strength to deny that mess. There are ample legal grounds to just say NO. An outfit called Valente Gravel in Troy tried to advance the same proposal, but that city told them that it didn't align with the community's vision for their waterfront -- End of story.

  2. A Planning Board is supposed to engage in "planning." The Board is charged with the responsibility for making sure that a proposed project is in alignment with the Comprehensive Plan, the LWRP, and other significant documents that define the vision of the City. I'd like to know what kind of planning process would lead to the establishment of a dirty, rusting, unsightly gravel dump that is providing no upside for the City.

  3. Besides Judge Zwack's other egregious errors (Life of Mine within the City, wrong!; required SEIS lead agency, wrong!), the best reason for the City to appeal the judgement is Judge Henry Zwack's total mistaking of the action under review. He still thinks that the Planning Board is reviewing the bulkhead work, whereas the Melkonian judgement clearly acknowledged that the SEQRA review Zwack just terminated is for a conditional use permit for the entire commercial dock operation.

    Zwack's mistaking of the action under review cannot survive an appeal.


    For the moment, though, let's stay with Zwack's error, pondering whether or not the bulkhead work itself was a Type II action and thus exempt from SEQRA. Not only did the State of New York already categorize the bulkhead work as an "Unlisted Action" (see "Notice of Complete Application," 10/16/15), the City's 2022 Motion to Dismiss noted that "Colarusso’s counsel and environmental consultant took the position 'that an unlisted action,' not Type II, 'was the correct route' (Petition, Exh. S, at 8)" [Motion, p. 6].

    Better yet was City Attorney Ken Dow's 2017 defense of the Planning Board before Judge Melkonian, in which Dow nearly lampooned the same Colarusso attorney's same twists and turns:

    "Notably, DEC expressly classified the Erosion Repair Project as an 'Unlisted' Action ... yet Petitioners continue to argue it was a 'Type II' Action .... Petitioners, moreover, try to have things both ways with the DEC's review of the Erosion Repair Project. On one hand, they argue that the DEC's determination is binding on the City, while simultaneously insisting that the project is a Type II action, thereby disavowing DEC's determination that it was an unlisted action. Petitioner's inconsistencies regarding the Erosion Repair Project SEQRA review are, however, merely a red herring" (Dow, "Memorandum of Law" [11/27/17], Argument 1A, p. 15).

  4. 2.

    In his Memorandum, Dow goes on to say what the red herring was meant to distract from: that the action the DEC reviewed in 2015 (the bulkhead replacement), and the action the Planning Board still has an obligation to review under SEQRA (a conditional use permit for the entire commercial dock operations) "are two entirely different matters."

    This is the critical distinction which is entirely lost on Judge Zwack who misunderstands the action he's passing judgement on.

    It was in his Affirmation document (10/11/17) that Dow clarified Zwack's same confusion most succinctly:

    "To the extent that Petitioner's pleadings indicate that the conditional use permit is *for* the Erosion Repair Project, it appears that Petitioner's complaint and argument is based upon a fundamental misunderstanding or mischaracterization of what is at issue. The conditional use permit that Petitioner is required to obtain is not *for* the bulkhead work; in accordance with Hudson Code section 325-17.1 it is FOR THE USE OF THE COMMERCIAL DOCK OPERATION IN ITS ENTIRELY, the requirement for which is TRIGGERED by the bulkhead work ....

    "The Planning Board seeks, therefore, to carry out a necessary SEQRA review of the conditional use permit for the commercial dock operation ..." (Dow's "Affirmation," Numbers 17 & 34; emphasis in original).

  5. 3.

    Based entirely on Zwack's misidentification of the actual action under review, Zwack claims that Melkonian merely granted the Planning Board authority to necessarily arrive at a Type II SEQRA exemption. Thus, the Planning Board's hard-won review would and must immediately end.

    Even if Melkonian and Zwack were looking at the same same action, as should have been the case, does the following from the Melkonian judgement sound like he expected the granted SEQRA review to be immediately terminated?

    "[R]espondents rationally concluded that the erosion repair project was one of the 'actions or events specified in [Core Riverfront District] Section D' triggering the termination of petitioner's right to continue to operate the commercial dock without [a] conditional use permit and that SEQRA review for continued commercial dock operations is necessary" (Melkonian "Decision an Order Judgement," [1/23/19], pp. 7, 8).

    The City must appeal.

    1. Sure, file an appeal, you know how long that takes, it will be tied up for years, huge sums paid in legal fees, and if you don't like the result, appeal it again. Maybe in 10 years some satisfactory result would be achieved, by then the operation has expanded, the waterfront further degraded and they will file additional lawsuits.

      Or - the city could condemn the structures and shut the place down, declare eminent domain and padlock the gate. Problem solved, instantly.

  6. Ken Dow can't be pleased to see the identical argument he vanquished in 2017 reappear in a subsequent lawsuit with a patently unqualified judge. Is that even ethical? Either way, the same device recycled is an affront, and adds to the abundant evidence of the contempt in which Colarusso holds the city.

    In that case, along with the necessary appeal, there's no better time for the City to finally activate its Zoning Code and halt all dock operations until the Planning Board reaches a decision.

    Even Zwack accepts Melkonian's judgement that the bulkhead project "trigger[-ed] the termination of petitioners' right to continue to operate the commercial dock without conditional use permit." As Zwack put it, "Colarusso's non-conforming use as a commercial dock operation had ceased." (Perhaps the only thing he got right!)

    It's been nearly five years since Colarusso relinquished its right to operate its city property, and during that time the company has sued the Planning Board twice!

    Was it out of charity, then, that the City allowed the operation to continue without a permit - condoning the relentless gravel trucks in potential Environmental Justice neighborhoods - while the company garnered city contracts? Cowed city politicians who turned a blind eye share in the culpability for their constituents' suffering.

    The City will next decide whether to capitulate to a judgement so shoddy it's likely the result of corruption, or else let the NYS Court of Appeals rule which judgement was correct, Melkonian's or Zwack's.

    In the meantime, the City's charity towards the landowner must end. Unless and until the Planning Board deigns to issue a permit, the entire unpermitted dock operation should "cease" per the Melkonian judgement and Zwack's acknowledgement of same.

    But by what logic should the Planning Board ever grant a permit to this obnoxious applicant? Such an outcome was certainly among the eventualities contemplated by Melkonian when he wrote, "Simply put - by undermining the City zoning laws, [Colarusso] commenced the project at their own risk."

    If closing the port invites further lawsuits, then at least the City could no longer mistake its actual power, as it's done for decades with successive owners of the port and South Bay.

    With this week's error-ridden judgement Hudson's future is in the balance. If the City passes on an appeal, allowing to stand Melkonian's AND Zwack's mutually contradictory judgements, then that would be a dereliction. Allowing Colarusso to operate without a permit looks to be a dereliction already.

  7. It seems to be laid out very clearly above in the comments, the City's course of action. Ken Dow knew what he was doing, outlining clearly the distinction between the two actions.
    The City must appeal.