The Planning Board meeting on Tuesday went on for four grueling hours. The first thirty minutes were devoted to the Hudson Housing Authority's redevelopment project, which Gossips reported on earlier. The next three and a half hours were taken up with Colarusso's application for a conditional use permit for its dock operations. The Colarusso team was there in force--not only JR Heffner and attorney T. J. Ruane, both also Paul Colarusso himself and their other attorney, John Privatera.
The Colarusso part of the meeting began with Ruane presenting renderings of the revised screening and landscaping plan meant to hide the dock operation from the surrounding area and to absorb the sound generated from the dock. Those renderings can be found here.
Landscaping plan involved the removel of the abandoned cement silo, to improve the view of the mountains from riverfront park. When the peregrine falcons that nest in the silo were brought up, peregrine falcons being an endangered species in New York State, Ruane said there were only two months in the year when they could remove the tower--two months during which the nest is not in use. Of course, what the peregrine falcons will do once their nesting site has been eliminated seems not to have been considered.
In the entire discussion of screening and landscaping, the detail that most engaged the Planning Board's attention was adding slats to the chain link fence along the eastern (facing South Front Street) and northern (facing Henry Hudson Riverfront Park) boundaries of the property. Installing slats in the chain link fence had been offered as a means to contain dust. Colarusso had suggested the slats could be green or black. At the meeting on Tuesday, Gene Shetsky said he would prefer no slats but definitely did not want black but might be OK with green. Bettina Young said she preferred green. After more discussion of the three options--black, green, or none at all--than seemed merited, the Planning Board settled on no slats.
There was also considerable discussion of the capsized barge, which apparently is still on our waterfront, waiting for its owner to retrieve it. Tugs pushed it south, beyond the dock, so it doesn't interfere with Colarusso's dock operation.
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| Photo: David Lee | Rural Intelligence |
All of that discussion took about half an hour. The next three hours were taken up going through the draft resolution, item by item--a resolution legal counsel Victoria Polidoro told the board she had created "to help them focus."
Page 2 of the resolution quotes from an August 20, 2020, letter from the Columbia County Planning Board, which recommended approval of the conditional use permit. Gaby Hoffmann asserted that in 2020 the Columbia County Planning Board (CCPB) reviewed "something quite different from what is being proposed now." She read from the minutes of the August 17, 2020, meeting of the CCPB, when the board made its recommendation to approve the conditional use permit, explaining that although the references are to the haul road the information is relevant to the dock:
The applicant proposes to improve the existing haul road between the quarry and the dock to accommodate two-way truck traffic, which will remove an estimated 14,000 to 16,000 truck trips annually at current conditions.
Having quoted from the minutes of the CCPB meeting, Hoffmann went on to say: "Fourteen to sixteen thousand truck trips annually is a lot less than what we're talking about currently. Based on my math, that's about 64 a day, so that would be a lot less than the 284 a day." Hoffmann argued that the CCPB recommendation for approval was based on numbers that were no longer accurate, "thus making the approval irrelevant, or at least problematic."
Hoffmann also read passages from the CCPB minutes that related specifically to the dock:
The hours of operation are proposed to as 7:00 a.m. to 6:00 p.m. Monday through Thursday and 7:00 a.m. to 5:00 p.m. on Friday. Trucks will not run on Saturday and Sunday, thereby reducing loading and unloading at the dock from 84 to 75 hours per week. The concessions to the operations of the docking operation will likely eliminate most if not all potential or perceived conflicts with any events at the City of Hudson Riverfront Park and the Basilica Industria as the functions are typically hosted during the weekends. The applicant is proposing concessions to limit the truck and dock operations to weekdays and to further limit the number of hours per day during which operation will be underway at the dock.
In contrast to this, the draft resolution states in its Conditional Use Permit Findings, 5 c:
Although dock operations may continue while the Haul Road is closed, the Board finds that these operations are less impactful without the truck traffic. The Applicant had agreed not to load or unload at the dock on major holidays and the Planning Board is further limiting operations on Sundays between Memorial Day and Labor Day.
Hoffmann insisted, "The park should be protected from all operations on weekends and holidays" and reiterated the opinion that "the details of the project have changed dramatically," so it should be referred again to the CCPB for a recommendation. When a vote was taken on sending the application back to the CCPB, only Hoffmann and Randall Martin voted in support of that action.
The process continued relentlessly, with Hoffmann pointing out problems with the draft resolution--the statement that Planning Board members had been "provided with links to all application materials and public comments"; the assumption that, because nonindustrial businesses have opened during the period of "unfettered operations" at the dock, the project will not be a significant deterrent; the quotes from the LWRP (Local Waterfront Revitalization Plan) clearly chosen to support the applicant's rights over the City's vision for the waterfront; the efficacy of the dust mitigation plan given the intensified activity (284 truck trips a day, six barges moored two abreast in the river)--and Planning Board chair Theresa Joyner asking repeatedly, "Does anyone else have a problem with this? Then we're gonna move on."
Around 10:00 p.m., when they had gotten to the Conditions of Approval in the resolution, Martin suggested that they stop and continue at another time. Hoffmann made a motion to adjourn, and Martin seconded it, but the motion was never voted on. Joyner said she wanted to go through the conditions, without discussion, and have board members email their changes, presumably to her and/or Polidoro. Fortunately, that didn't happen. When they got to the Ongoing Operating Condition that set the limit at 284 truck trips a day, it became clear that Joyner's forced march to the end of the resolution wasn't going to happen, and it was decided that the Planning Board would hold a special meeting to continue the discussion of the conditions of the conditional use permit on Tuesday, November 18. Unfortunately, that is the same day as the Common Council's regular monthly meeting, so the Planning Board meeting will have to take place at the Central Fire Station.
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We do not want Colarusso nor trashy chain-link fences in Hudson!!!!
ReplyDeleteHow much of this rush can be attributed to the Chair’s term ending in two months, as well as two of her fellow members, and the fact that they are unlikely to get reappointed should Joe win?
ReplyDeleteIt has everything to do with. Kamal’s “Platinum Level” sponsor needs to see ROI.
DeletePart of me thinks this isn't going to be as straight-forward to sort out. Theresa, Randall and Bettina are the members with the longest tenure. The question is who'd be chairing the next Planning Board.
DeleteOf the remaining four, Eugene has the most experience given that he has served on the PB before. If Theresa, Randall and Bettina are no longer acceptable however, neither would Eugene be as the next chair.
There's also the question about the legal counsel. Victoria has unwittingly became practically the eight member recently.
While the numerous attorneys occupying the Gossips comment section have this case already figured out and are in perfect agreement that all it takes is a little bit of Planning Board spunk to foil ACS, I doubt that it will play out like this. In the past and when courts were involved, it hasn't.
There are many specific concerns in the draft Resolution, but one new very significant point warrants comment.
ReplyDeleteThe resolution states that “The Court by Order and Decision in A. Colarusso & Son, Inc. v. City of Hudson Planning Board, Index No.: E012021017875, (2024) determined that the Applicant has vested rights in the dock as a continuing use.” While that statement was included in such Decision, it is cherry-picked and makes a misleading implication. First, the Court itself footnoted that passage, expressly stating that “The court declines to address the exact scope of Petitioners' vested rights, as the issue has not been specifically addressed in the briefing, nor is a determination of such necessary to the court's limited decision here today.” At most, this position from the Court does nothing more than state that the operation cannot be shut down entirely. No one is seriously suggesting doing that.
If it is actually correct that Colarusso has any vested rights in the dock as a nonconforming use, they are plainly limited by the City of Hudson Code section 325-29, which expressly states that “Any type of nonconforming use of buildings or open land may be continued indefinitely, but: (1) Shall not be [expanded], NOR SHALL ANY EXTERNAL EVIDENCE OF SUCH USE BE INCREASED BY ANY MEANS WHATSOEVER.” If Colarusso had any vested right in the operation of the dock, it was limited to the extent of the operations as such existed at the time the dock use became a nonconforming use (in 2011, three years before they bought the property) and they were barred from increasing any external evidence of the use. If they had any vested right as a nonconforming use, it is limited, not open-ended. The exclusion from the draft Resolution of the footnote and additional context suggests the incorrect inference that Colarusso has vested rights to do whatever it is doing. They don’t, and the Court didn’t say that they do.
Secondly, that passage is in direct conflict with the Melkonian Decision and Order and Judgment in A. Colarusso & Son, Inc. and Colarusso Ventures, LLC v. City of Hudson, City of Hudson Planning Board, et al., Index No. 17-906091, which states that “respondents [City of Hudson] rationally concluded that the erosion repair project was one of the "actions or events specified in Section D triggering the termination of petitioners' right to continue to operate the commercial dock without conditional use permit.” Indeed, the express language of section 325-17.1 of the Code states that “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.”
These are two first-level Supreme Court cases—neither is an Appellate Division case—and the 2024 Rivera Order and Decision is not superior to the 2017 Melkonian Decision. In that light, there appears to be an unresolved conflict between two courts as to whether Colarusso has any remaining rights to operate. But even setting that aside and granting for now the validity of J. Rivera’s assertion that Colarusso has vested rights, the SCOPE of those rights is what matters, not the mere existence of some vested right, and J. Rivera expressly declined to consider the scope. If the Board proceeds on the basis that Colarusso has vested rights (a point on which the courts disagree), it is of the utmost importance that the Board NOT mistakenly believe that the Rivera Decision suggests anything more than that the operation cannot be shut down entirely. The Rivera Decision does not support the current, proposed, or any particular level of activity. (Continued below)
(Continued from above) There were limitations on the dock use dating from 2011, prior to Colarusso’s purchase of it. Consequently, even allowing for J. Rivera’s determination, it would be entirely within the Planning Board’s authority to impose as a condition that “The dock use shall continue to be subject to the same limitations it has been subject to since the dock operations were designated as a nonconforming use in 2011, as set out in section 325-29 of the Hudson Code, that no external evidence of the use may be increased by any means whatsoever beyond what existed as of the date it became as a nonconforming use in 2011.”
ReplyDeleteI have never argued or advocated for any particular outcome in this matter, and I don’t do so now. I have continually defended the Planning Board’s scope of authority and pushed back on Colarusso’s persistent and disingenuous attempts to mislead the Planning Board and convince it to surrender its authority. The reference in the draft resolution to vested rights raises yet another alarm of the Planning Board being gaslighted into giving up its authority to do its job and fulfill its purpose. To support again the Planning Board and its lawful scope of authority: NOTHING COMPELS THE PLANNING BOARD TO ALLOW THE DOCK OPERATIONS TO INCREASE THE LEVELS OF WHAT IS PERCEPTIBLE TO EXTERNAL OBSERVERS BEYOND WHAT EXISTED IN 2011. The Planning Board has more power than Colarusso wants it to believe. It CAN impose the condition noted in the paragraph above. It should not let itself be fooled into thinking it cannot.