Polidoro, Hoffmann, and the LWRP

In 2006, when work began on crafting Hudson's Local Waterfront Revitalization Plan (LWRP), less than a year had passed since Secretary of State Randy Daniels handed down the decision that brought an end to St. Lawrence Cement's "Greenport Project," the behemoth cement plant proposed to be constructed just beyond our border in Greenport. The dock on the river in Hudson was a part of that plan. Less than a year after the hard fought, seven-year-long battle against the cement plant, there was understandably great concern about future industrial uses of the deep-water dock, which was then owned by St. Lawrence Cement. 

Balloon test showing the height of the structure at the waterfront that was part of the proposed cement plant. Screen capture: Two Square Miles

For years prior to the St. Lawrence Cement (now Holcim US) proposal and the Daniels decision that put a stop to it, the dock had not been used for much of anything except receiving shipments of road salt and storing Coast Guard buoys. Soon after the plans for the cement plant were foiled, there was new activity at the dock. St. Lawrence/Holcim entered into an agreement with O&G Industries, headquartered in Connecticut, to haul aggregate from the quarry to the river to be loaded on barges at the dock. O&G was hauling aggregate to the dock during the years between the beginning work on the LWRP in 2006 and its adoption by the Common Council in 2011.

It was in the context of a narrowly avoided cement operation and new activity at the dock that the LWRP was being developed. There was serious concern about limiting industrial activity. On that topic, this post about a meeting of the Common Council Economic Development Committee that took place on June 22, 2010, is of interest: "LWRP: The Endgame Begins." The zoning adopted with the LWRP designated the dock operations as a nonconforming use. It is generally understood that nonconforming uses are tolerated but are not something that should be expanded or intensified. Prior to the Common Council voting to adopt the LWRP in November 2011, William Sharp, principal attorney for the NYS Department of State, explained the protections of the Core Waterfront District written into the LWRP. The entire transcript of his statements can be found here (the final attachment). The gist of Sharp's statements is found in these paragraphs:

[T]here is an extensive list of requirements in the Conditional Use Permit section for an existing commercial dock operation. First among them is the idea that at least, wherever possible, the public’s views from the waterfront and access to the waterfront where possible be preserved and protected. Certainly the views from public streets.  

There are a number of items that a Conditional Use would have to comply with: things like hours of operation, levels of noise, whether dust and other kinds of noxious or bothersome uses are generated onsite. Those would be prohibited, as they are actually in all of the zoning districts in the City. 

A lot of the requirements which are in the Conditional Use Permit actually mirror other sections of the City’s laws and ordinances. They may not have been brought to bear before. But now they are actually in as specific conditions to ensure that the use is a good neighbor. There’s a recognition that if there is going to be continued dock operations down there, that it try to coexist, and exist well with the other kinds of uses that are happening in the City of Hudson.… The reintroduction of people to its Waterfront. The revitalization of housing stock. The kinds of new vitality that public and private investment has brought to Hudson. And so this zoning attempts to create that kind of a balance. 

The Common Council adopted the LWRP and its zoning in 2011. Colarusso acquired the dock in 2014, three years after the protections against intensification of industrial activity were put in place. So, why are the protections written into the LWRP not allowing the Planning Board to impose more stringent conditions on Colarusso's operations at the dock? The answer was revealed at the last Planning Board meeting, in a difficult exchange between Planning Board member Gaby Hoffmann and Victoria Polidoro, the Planning Board's legal counsel.

The discussion began with Hoffmann making the following statement:

There is a legally binding zoning code that I would like for us all to have at least some consensus about what we think it means. And you have said over and over and over again, Mr. Ruane [attorney for Colarusso], that we have no right to impose conditions on your operations. I have found a lot of evidence that suggests otherwise. So I would like to address that now.

During the discussion that followed, the question arose about whether the zoning that is part of the LWRP is legally binding or simply guidance. It began with Hoffmann saying, "Last time, I was told that the LWRP is not legally binding," to which Polidoro responded, "Correct." Polidoro offered an explanation that relied on the definition of "Local Waterfront Revitalization Area (LWRA) or Coastal Area" found in Article XIII of the city code: "That portion of New York State coastal waters and adjacent shorelands located within the boundaries of the City of Hudson, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the City of Hudson Local Waterfront Revitalization Program." This is what Polidoro said:

The LWRP provisions are triggered when there's a project in the LWRP area. And that's a defined term. So when you go to that definition, the LWRP area is the area on the LWRP map on file with the Secretary of State. That didn't happen. So there's no LWRP area. So even though we have provisions, there's no area that triggers those provisions.

Later, after elaborating on the statement quoted above, Polidoro said:

We interpret this now to mean that there is no local waterfront revitalization area. So although we have a procedure for reviewing projects in a local waterfront revitalization area, we don't have a local waterfront revitalization area as defined in our zoning law.

Hoffmann said she would like further clarification, because "much contradicts that." She then read from her notes:

Right here it says the state official coastal zone boundaries map and landward coastal area boundary data set clearly delineate Hudson's waterfront as part of the state coastal area. These maps incorporated by reference in Executive Law 42 and the state's approved Coastal Management Program define the coastal area independently of any local LWRP map filings. Consequently, Hudson's zoning provisions governing actions within the coastal area remain operative because a state-designated coastal boundary area exists within the city limits.

Polidoro asked what Hoffmann was reading and if it was someone's interpretation. Hoffmann did not answer the question but instead said, "Another thing--if the LWRP is not valid in the zoning code then somebody needs to take that to a judge to have it [decided]. We can't just decide that the zoning code is invalid." Polidoro responded to that by saying, "We're definitely not saying the zoning code is invalid. We're just saying that, as defined, it's not applicable to this process." She went on to say about the LWRP, "It's something that the City said they wanted. The City adopted it. . . . It doesn't carry the force of law, in my opinion, because there's no area that it is being applied to."

Polidoro's position that the LWRP does not carry the force of law seems more than a little bizarre given that Colarusso would not be seeking a conditional use permit were it not for the LWRP, and, more recently, it was determined that Mill Street Lofts did not need a height variance from the Zoning Board of Appeals because of a provision in the LWRP. 

Nevertheless, the Planning Board was less than receptive to Hoffmann's concerns. Theresa Joyner, who chairs the Planning Board, made this statement: "The Planning Board was assigned an attorney and a consultant. And if we have members that don't want [to accept their advice], it's like taking fiction and trying to make it into facts." Joyner dismissed Hoffmann's research saying, "You can find anything on the internet to support your opinion," and declared, despite Hoffmann's efforts to persuade them that the validity of the LWRP was relevant to their deliberations, "We are going on to the next thing."

The entire discussion can be heard here, beginning at 2:06:45.

For those unfamiliar with the parts of the city included in the waterfront revitalization area, this map, from the City of Hudson Local Waterfront Revitalization Program (page 8), shows its boundaries.

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