More About the Draft Resolution

Three hours of the special Planning Board meeting that took place on October 28 were taken up going through the draft resolution granting a conditional use permit to A. Colarusso & Son for its dock operation. Victoria Polidoro, legal counsel to the Planning Board, told the board she had prepared it to "help them focus." Gossips has already reported on the October 28 meeting: "Another Painful Night with the Planning Board." The draft resolution, however, merits further attention.

The following is quoted from the draft resolution, from the section titled "Additional Findings," which begins on page 9:

1. The Planning Board finds that the Project appropriately balances the economic and functionality of the waterfront with the preservation of the aesthetic qualities of the area.
2. The LWRP, on page 11, explicitly recognized the Applicant's use of the dock over the course of the next 25 years and the importance of the dock on the City's economy.
3. The LWRP, on page 26, states "with the exception of salt storage, the City supports improving access to and encouraging the regulated use of the City's one remaining port for the transportation of raw materials and goods."
4. The LWRP, on page 30, states "working in cooperation with the port's owner or potentially, as the owner of the port in the future through a port authority, the City would directly benefit from having the ability to shop locally produced or needed raw materials and goods."
5. The LWRP, on page 42, states "and shipping activities, including the storage of raw materials at the dock" were intended to be part of the Core Riverfront Zoning.
6. The LWRP, on page 80, recognizes Hudson's waterfront properties as "a valuable resource for recreation and waterborne transport of raw materials and goods."
7. The LWRP, on page 83, states "Continued use of the port for the shipment of certain raw materials and goods is consistent with the LWRP as long as appropriate controls are placed on the time, place and manner of shipping activity."
8. The LWRP, on page 83, states "Continued operation of the port by Holcim or their lessee of the existing stone aggregate stockpiling and shipping use on a portion of its property is consistent with Hudson's maritime history and contributes to the tax base of the City."
9. The Court by Order and Decision in A. Colarusso & Son, Inc. v. City of Hudson Planning Board, Index No.: E0120211017875, (2024) determined that the Applicant has vested rights in the dock as a continuing use.

At the Planning Board meeting on October 28, Planning Board member Gaby Hoffmann objected to the selective use of quotes from the LWRP (Local Waterfront Revitalization Plan), pointing out the resolution included "a lot of stuff from the LWRP that's protective of the Applicant's rights but nothing supportive of the City's rights." 

The quotes from the LWRP are not the only examples of cherry-picking in support of Colarusso in the draft resolution. In a comment on Gossips, former Hudson city attorney Ken Dow (identified as KD) pointed out that item 9 under Additional Findings is also problematic. The information he shared is important, and for that reason, it is being repeated here, where people who don't read the comments will see it.

There are many specific concerns in the draft Resolution, but one new very significant point warrants comment.

The 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 is 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 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.

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."

I 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.

Would that the Planning Board's legal council be as committed to defending the Planning Board's scope of authority and to pushing back on Colarusso's "persistent and disingenuous attempts to mislead the Planning Board and convince it to surrender its authority."

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