The Register-Star reports this morning that Acting Supreme Court Justice Richard Rivera has annulled the Planning Board's positive declaration in its environmental impact review of Colarusso's dock operations on the Hudson River: "Judge rules in favor of A. Colarusso and Sons in dock replacement lawsuit."
The Planning Board made the positive declaration on November 18, 2021. Colarusso filed its lawsuit against the Planning Board on December 17, 2021. The judge's decision was handed down on Friday, July 12, 2024.
The silence on this post, given all the opinions on the appropriate role of the Planning Board on other posts, is deafening.
ReplyDeleteYou can only beat your head against a brick wall for so long, people have given up. I suppose we should consider ourselves lucky they didn't sell the Dunn Warehouse to Colarusso for $1 and turn the whole waterfront into a gravel dump.
Delete1.
ReplyDeletePeter, I've watched and waited for any comment until now, and you couldn't have stated the situation better.
In fairness, though, Gossips' three links to the Planning Board's 2021 SEQRA determination are broken (11/18/21) as the city website substitutes novelty and prettiness for continuity.
That said, the Planning Board's SEQRA determination is only the initial data needed to understand how a judge was so easily hoodwinked on a complex land use issue. It appears this judge didn't even comprehend the previous judgement by his colleague Melkonian, and simply allowed Colarusso to misrepresent it for him.
Above all, the authority and justification for the 2021 Planning Board to conduct an SEIS (Supplemental Environmental Impact Statement) is found in the 2011 SEQRA Findings Statement for the city's 2008-2011 waterfront program (LWRP), legally the most important document in the years-long process.
On pages 11 and 16 of this still-unsearchable document (so unhelpful, but scan for the acronym "SEIS"), you'll find all the justification Hudson needs for an appeal of this ignorant judgement.
To Colarusso's latest complaint that "The November [2021] SEIS directive, and its supporting findings, are patently unauthorized, issued in derogation of SEQRA and contrary to established law" (no. 26 of its Petition & Complaint), the 2011 Findings Statement is very clear on the consequently amended Zoning Code:
a. "The FGEIS recommends preparation of a SEIS if [the landowner] undertakes actions necessary to use the causeway ... should those actions trigger the conditional use provisions of the [then-] proposed zoning" [p. 11].
b. "[S]uch use of the causeway may become subject to the conditional use zoning provisions ... and may be subject to preparation of a Supplemental EIS (see Nov 2009 DGEIS, Chapter 7) which will assist the Planning Commission [/Board] in determining whether the action can be approved and if so whether and to what extent mitigation measures and conditions are necessary to address any potential adverse environmental impacts" [p. 16].
https://cms3.revize.com/revize/hudsonnynew/document_center/Waterfront/821.pdf
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ReplyDeleteNot surprising for the State of New York, Judge Rivera has fallen for the Plaintiff's usual shell-game which successfully confused a parade of the city's own attorneys for years (though never attorney Ken Dow!).
To wit, at every opportunity Colarusso conflates its actions within the city - actions which properly fall within the City's jurisdiction - with an earlier SEQRA review conducted by the Town of Greenport and superseded by Melkonian's second judgement.
Along with the category error of supposing that Greenport's review takes precedence over Hudson's Zoning Code, the easiest thing for the landowner to exploit was always the meaning of "dock operations" in the Code. Whenever it facilitated confusion, Colarusso maintained that "dock operations" meant The Dock itself. Now Colarusso has confused Judge Rivera, too, who evidently did not study his Melkonian.
Nevertheless "dock operations" are defined at § 325-17.1D(1) as "the transport and shipment of goods and raw materials, including loading and unloading facilities, and storage of such goods and raw materials, and associated private roads providing ingress and egress to or from such commercial dock operations [etc.]"
But it's this next paragraph from the same section on which all hinges:
"Any existing commercial dock operation may continue to operate as a nonconforming use until such time as one or more of the actions or events specified in Subsection D above is proposed to be undertaken."
And right there is where Judge Richard Rivera betrays his appalling lack of preparation and his gullibility for the Plaintiff's misrepresentations.
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ReplyDeleteAt No. 299 of the Petition, Colarusso makes the claim that "Although the Second Melkonian Decision [i.e. Colarusso v. City of Hudson] recognized that the City Planning Board could endeavor to perform a SEQRA review of the dock repair application, it did not sanction the scope of the SEQRA review the City Planning Board has undertaken here" (Petition & Complaint, pp. 56, 57).
But that's not what Judge Melkonian said at all! Instead, and following his first judgement which addressed the Greenport review, Melkonian acknowledged that:
"On August 17, 2017, the City determined that inasmuch as petitioners' [Colarusso's] nonconforming use as a commercial dock operation had ceased, SEQRA review in connection with petitioners' continued dock operations application was necessary. Indeed, the extensive record herein reflects that the Planning Board made it abundantly clear to petitioners that inasmuch as petitioners' nonconforming use had ceased, they would be required to obtain a conditional use permit for their continued commercial dock operations" (pp. 3, 4).
"[R]espondants [City of Hudson] rationally concluded that the erosion repair project was one of the 'actions or events specified in [Code] Section D' triggering the termination of petitioners' right to continue to operate the commercial dock without conditional use permit and that SEQRA review for continued commercial dock operations IS NECESSARY" [pp. 7, 8; emphasis added].
And that is all that the City of Hudson needs to file a successful appeal. But to echo Peter Spear's comment, will anyone bother to pursue something so easy?
Do all those who're so obsessed with "democracy" even understand anymore that your representatives answer to you, the taxpayer?
Don't look at me - I've moved out of state to a warmer climate, smarter neighbors, and a better court system.
Good luck getting the City of Hudson motivated, though you won't need any luck overturning this ignorant judgement.
If only you could tell the difference between the holding in a case and its dicta …. Everything is simple until you have to do it. Just ask the PB — can’t do anything but get sued and lose.
DeleteLame!
DeleteHow on earth would the Appeals Division support Rivera's contradiction of Melkonian's "SEQRA review for continued commercial dock operations is necessary."