Tuesday, August 16, 2022

TVA Weighs in on the Colarusso Decision

Earlier today, The Valley Alliance sent the following memo, signed by codirectors Sam Pratt and Peter Jung, to the Planning Board, the Mayor, and the Common Council. The memo was also shared with The Gossips of Rivertown.

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:

  1. 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.
  2. 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. . . .
  3. 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.
  4. 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.
  5. 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.
  6. 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.”
  7. 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. . . .
  8. 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.
  9. 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.
  10. 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.
  11. 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.


  1. Bravo! My gratitude to the Valley Alliance for its sober and well-written letter. It's all true, every word of it.

    Yes, "bizarre" is the only way to characterize Zwack's work ... unless "corrupt" is more accurate, something the VA is wise not to venture just yet.

    In a freer setting like this thread I'll say what many may only be thinking. It's a tell when Zwack agrees "that the City failed to properly designate the Common Council as the lead agency as required under the plain language of SEQRA" [p. 8], because there's nothing in SEQRA or even in its supporting literature that treats of the subject in plain language or in any language! Zwack is sounding definitive and authoritative for effect - for the purpose of intimidation. "Plain language"? Where? Nobody is that stupid - and so stupid to get so many things wrong at once - which is all that's needed to suspect corruption.

    Whether corrupt or merely "bizarre," in any universe Zwack's hollow decision disqualifies him as a judge.

    Another worthy point in the VA letter, and a complex one, is Zwack's committing of the other half of the segmentation which Judge Melkonian already ruled against. It would be so helpful if people can wrap their heads around this because, in the end, there's either segmentation or there isn't. Zwack accommodates a partial segmentation (like being a little pregnant) by conflating the C-R District's "private road" with the applicant's merely proposed "haul road." Nobody disputes that the proposal was already reviewed by Greenport. Zwack goes further though, by implying that Greenport's conclusion precludes Hudson's review of ANY road.

    In fact, not only has "private road" never been reviewed for the purpose of a conditional use permit, the "nonconforming" road was never issued a permit in the first place and now it's no longer nonconforming! So how is it in use at all?

    The VA's words are worthy of constant repetition, that "the current operation has no local permits" and has "lost its grandfathered status through Colarusso's own actions."

    VA is right that the company shouldn't be working the port at all (#11), "not unless the Order to Remedy is satisfied" by the Planning Board's thorough review and permitting decision.

    The VA letter even considers the unintended social consequences of the City giving in to this judicial intimidation. Zwack's judgement makes a mockery of our LWRP which for all its faults does not deserve to be trashed. Certainly Zwack's model "encourage[s] others with the money to file endless lawsuits," and that's only one reason cited by VA that would discourage volunteer service on local boards.

    I'd only reemphasize what the VA letter cannot say, that to have produced such a steaming pile of nonsense Henry Zwack is almost certainly a corrupt judge.

  2. Zwack also doesn't realize that the record of the Greenport Planning Board proceedings contains zero evidence that the Lead Agency bothered to examine any of the downside impacts on Hudson, as required. Hopefully a higher court will see thru the fog and get it right. The Zwack decision is so pathetic that a superior court might be concerned that it cannot be allowed to stand out of concern for bad legal precedent.

  3. In our legal system any level of favoritism is corrupt, but don't suppose that judges are immune to bribery, or that either political party has monopoly on such behavior.

    Remember Supreme Court Judge Thomas Spargo (R) of the NY's 3rd Judicial District, convicted of attempted bribery in 2003. (He allegedly sought bribes from attorneys because he needed money to pay legal fees in connection with earlier judicial misconduct charges!)

    In recent news, Supreme Court Judge John Michalek (D) of NY's 8th Judicial District was also convicted of bribery and is now in prison.

    Did anyone else find it impossible to convert Judge Zwack's Decision and Order into a searchable document? Asked for an opinion, the NYS Committee on Open Government just told me that a FOIL request for a searchable document - or at the very least not a locked one - must be granted.

    Can't you just feel that this Zwack character is a crook? Looking at his decision, why wouldn't he be?

    1. More (and mere) idiocy to suggest that Judge Zwack is corrupt.

      Zwack recounts that "Colarusso also seeks a determination that the Planning Board's determination violates the Commerce Clause of the Constitution" arguing that the "attempt to regulate [Colarusso's] use of the dock for interstate commerce violates the Commerce Clause ..." (p. 4).

      Notwithstanding that no other action was taken by the Planning Board except for a SEQRA declaration anticipated by the Common Council in its Findings Statement of 2011, Zwack agrees with the complaint: "the [SEQRA] declaration is an unlawful restriction of interstate commerce" (p. 9).

      But by what reason? In what way is a full SEQRA review, in itself, an "attempt" to regulate?

      Is Zwack saying that the project he imagines, the bulkhead work, is exempt from SEQRA because of the Commerce Clause? Then why didn't he say that along with his other flawed reason for justifying a "Type I" exemption?

      Or, when he says that the Board "attempts" to regulate, does he really mean the members "intend" it? In that case is Zwack a mind-reader? Are his telepathic abilities so powerful that he knows people's true intentions?

      The whole decision is total b.s., and Zwack KNOWS it. So why did he write it?

  4. Do not attribute to malice (or corruption) what can be explained by incompetence.

    In my experience, the local Supreme Court Judges are grossly incompetent due to being too close to retirement, thus impatient, lazy and uninformed to the facts. It's kinda sad and shocking how they don't even bother to read the materials of the cases before them. It's always a crapshoot around here and your only other options are to negotiate a settlement or go through the time and expense to appeal. In this case, the future of the waterfront is important enough to appeal. But, for those justly trying to seek relief from the court, it can be disheartening to see how little regard they have to serving justice.

    1. You are too kind when 100% of the decision is totally off-base, then it's explained down to the plebs with disdain.

      It's an intimidation technique meant to ward off an appeal, which is already an example of bad faith (read: malice).

      Word has it it nearly worked, so we're in right neck of the woods when we suspect corruption too.

      The public owes no forbearance to a judge who appears to be corrupt. The onus is on the judiciary (and lawmakers) to be reasoned and clear in their work, not on the public.

      Before anyone starts making excuses for Judge Zwack, fully understand what he's produced, which is abominable, and then tell me he's not on the take.