Tuesday, July 11, 2023
Dear Chairwoman Joyner and Members of the Board:
Part 1
Introduction.
We would like to re-introduce ourselves to some of you, and introduce ourselves for the first
time to newer Planning Board members. Our firm represents citizens and business owners in
the City of Hudson, including the Valley Alliance group, who are concerned about the haul road
expansion and improvement project proposed by A. Colarusso & Son, Inc. (“Colarusso”).
The purpose of this letter is to address the recent court decision which impacts Colarusso’s
pending applications before this Board for a conditional use permit and site plan approval for
the haul road expansion and improvements proposed by Colarusso for that portion of the haul
road which lies within the boundaries of the City of Hudson.
Part 2
Executive summary.
The last time that the Planning Board review was recommencing after a litigation-induced
hiatus, in a March 13, 2019 letter to the Board we said that, while some things have changed
over time, one thing has not changed, and that is your duty, as Planning Board, to uphold the
integrity and the purpose of the City's community plans. These plans, including the Local
Waterfront Revitalization Plan (LWRP), the City of Hudson's Comprehensive Plan, and the City
of Hudson's Zoning Law, must be reviewed and applied in your review.
Those statements are still true today.
This time, the recent appellate court decision dated June 22, 2023, clarified firmly that the court has not directed you to reach any particular decision on these applications. The recent court
decision clarifies that you have full discretion to evaluate these applications and to apply the
Hudson Zoning Law. That means that you have the authority to apply the Zoning Law to these
applications and grant or deny these permit applications as you see fit based on the record
before you.
Below in this letter, we marshal the various pieces of Hudson’s land use laws and plans and
show you how they factor into the decision you will be making on these applications. We also
show you how the provisions of the Hudson Zoning Law empower this Board to give this
application the scrutiny that is warranted by the impacts and disruption that it poses. Finally, we
explain that these applications for a conditional use permit and site plan approval are not a fait
acompli. Colarusso is not entitled to these approvals unless it can demonstrate that it complies
completely with the requirements of the Hudson Zoning Law.
Part 3
The concerns and controversies generated by these applications.
Colarusso has applied to this Board for a conditional use permit and site plan approval for the
proposed haul road expansion. Because of the impacts that this project poses, it has been
controversial and a source of serious concern in the community since the moment it was first
proposed, and for good reasons.
There are several critical areas in Hudson that will be impacted by this project. The haul road
will traverse the western end of the South Bay causeway with trucks then entering upon Front
Street in the City of Hudson where they travel north past Basilica Hudson, will cross the railroad
tracks near the Train Station and Henry Hudson Riverfront Park, and then back south on the
west side of the railroad tracks to the dock.
Unfortunately, when the Greenport Planning Board acted as lead agency under the State
Environmental Quality Review Act (“SEQRA”) for the environmental review of the proposed haul
road expansion, it ignored the adverse environmental impacts of this project on the City of
Hudson and mistakenly concluded that this project would not have any significant adverse
environmental impacts. That erroneous decision was challenged in court, and sadly, the
challenge was unsuccessful. And in its recent decision, the appellate court affirmed that the
Hudson Planning Board is bound by the Greenport Planning Board’s Negative Declaration.
However, while this Board is bound by the Greenport Planning Board’s SEQRA decision, this
Board retains complete freedom with regard to Colarusso’s conditional use permit and site plan
approval applications, and the Greenport decision does not preclude the possibility of a denial
of those approvals pursuant an application of the City of Hudson Zoning Law.
The Greenport Planning Board’s failure to adequately evaluate and address the adverse
impacts of this project in the City of Hudson makes the Hudson Planning Board’s review of the
conditional use permit and site plan approval applications all the more important. It is now up to
you to apply firmly the requirements of the Hudson Zoning Law to this project. Fortunately,
Hudson’s Zoning Law contains some powerful and effective provisions, applying to conditional
use permits and site plan approval, that can help this Board properly and adequately address
the impacts of this proposed project.
Part 4
The stated purpose of the Core Riverfront Zoning District.
The Planning Board must review the purpose and objective of the Zoning Law. Zoning Law
Section 325-34 says that the Planning Board “shall” further the expressed intent of the Zoning Law for this district. As stated before,
The purpose of the Core Riverfront C-R District is to encourage a mixture of compatible uses at the riverfront; to provide access to the riverfront for waterdependent transportation and recreational uses and water-enhanced uses such as restaurants and publically accessible walking and biking trails; to ensure that uses are compatible; and to protect the visual, cultural, natural, ecological and historical resources of the City’s core riverfront district.
That is a powerful and clear statement of purpose. That means that you evaluate the requested
conditional use permit in light of the stated purpose of the C-R District, which is the statement of
Hudson’s vision for how the District is to grow. The Zoning Law states explicitly that the vision is
to create an atmosphere where other uses can germinate, grow and thrive (e.g., restaurants,
walking trails etc.). In your review of this application, you have an obligation and a responsibility
to see that, whatever is approved, the scale and parameters of the mining activity at the dock
will allow the other uses in the City’s waterfront vision to grow, develop and thrive.
It is obvious to us that, should you choose not to deny approval of these applications, then limits
must be placed by your Board on Colarusso’s project under a conditional use permit so as to
minimize the adverse impacts of that activity to the surrounding neighborhood.
This project may have severe impact to the sense of place and quality of life in the City of
Hudson. Hudson is a vibrant and diverse community, with many historic structures and features
still intact. Its waterfront area is an important part of Hudson today, and an important part of
Hudson’s vision for its future. Even with its present use, there are adverse impacts on the
surrounding area with dust and noise. It is imperative that the Planning Board take into
consideration the impacts to the surrounding area in reviewing the conditional use permit.
Increase in heavy truck traffic, dust and noise, will increase its already discordant impacts and
significantly diminish the ability of citizens and tourists to enjoy the aesthetically pleasing
qualities of Hudson’s waterfront. Increased truck traffic, noise and dust will diminish the ability
of citizens and tourists to enjoy recreational activities at The Henry Hudson Riverfront Park, the
Basilica Hudson facility, and the Train Station. Without limits placed on the project from
conditional use permits, the other parts of the vision for the waterfront as stated in the “District
purpose” cannot be realized.
Part 5
The City’s Local Waterfront Revitalization Program
In applying for a conditional use permit and site plan approval, Colarusso is now subject to
compliance with the LWRP, and the conditions and regulations of the Zoning Law. It is required
that this project must be consistent with the LWRP policies.
The City has been very clear how it envisions the waterfront area. The LWRP says:
The City’s LWRP is intended to guide and support, through zoning changes and other agreements, development within the waterfront boundary area which supports and continues the regional shift away from water dependent industrial uses to a mix of compatible, higher economically valued mixed uses that include commercial, residential, tourism, retail, shipping and office uses, water-dependent and enhanced recreational uses, and the preservation of open space. Therefore, the City intends to rezone much of the land within the waterfront boundary area from industrial use to zoning which provides for a mix of commercial, residential, conservation, industrial and shipping activities, with added protections to ensure that any shipping or transportation activities occurring within the new Core Riverfront Zone are compatible with the overall long term planning objective [emphasis added].
Hudson has established that its vision for the waterfront is to move away from industrial use,
and embrace a mix of uses which allow the public access to, and enjoyment of, the waterfront.
The LWRP was reviewed and approved with the existing one-lane haul road intact. Obviously,
as it presently exists, the LWRP has already incorporated the existing one-lane. Any plans by
Colarusso that will involve increases or route changes in truck traffic within the City of Hudson
to the dock (as was proposed as part of its plans in Greenport) would not be consistent with the
LWRP, or with the stated purpose of the C-R Zoning District. The Planning Board must
consider this purpose and assess whether this project is in compliance with the C-R District’s
objectives. The objectives are to move away from industrial use and support more mixed-uses
to enhance the area.
The Planning Board has the authority to place reasonable conditions on the project to ensure
compliance with Hudson’s plans, or deny the conditional use permit if such objectives are not
met.
In addition, the Planning Board should be aware that a formal consistency determination should
be made as to whether Colarusso’s plan is consistent with the LWRP. This determination
should be separate and apart from the Planning Board’s determination on the matter of the
conditional use permit.
Part 6
Colarusso must meet the Zoning Law in order to obtain the permits it seeks.
Classification as a conditional use permit constitutes a recognition that a use is a permitted use
upon satisfaction of enumerated conditions. Nevertheless, entitlement to a conditional use
permit is not a matter of right. The “[f]ailure to meet any one of the conditions set forth in the
ordinance is ... sufficient basis upon which the zoning authority may deny the permit
application.”
For example, in Samek v. Zoning Bd. of Appeals of Town of Ballston, the court found that
evidence was sufficient to deny special use permit to construct four-unit office or retail store
building, based on concerns about traffic congestion and safety. Although the applicant had
characterized statements of neighborhood residents as “generalized objections based on traffic
congestion,” the court found that the residents testified to specific concerns about additional
traffic at already busy intersection, and noted that neighborhood was mainly residential, with normal traffic flow including school buses which stopped to pick up or discharge neighborhood
children.
In this case, the Planning Board’s responsibility to the community mandates that it scrutinize
this proposed project carefully. Colarusso chose to get the Greenport portion of this project
approved first because that was the easy, low-hanging fruit. It was also a way to try to create an
impression with the Hudson Planning Board that this project is inevitable, that its approval in
Hudson is a fait accompli. The reality is that is simply not true. As the recent court decision
affirmed, your Board has the full power and discretion to conduct and complete its review and to
make a decision based on the Zoning Law and the record. If Colarusso cannot meet the
standards that apply to this project in Hudson, then the approvals must be denied without
regard to anything that was done by the Greenport Planning Board.
Part 7
Important conditional use permit provisions.
In its review of a conditional use permit, the Planning Board must take into consideration all
these areas of concern. Fortunately, thanks to the clear and detailed provisions of the City of
Hudson Zoning Law, the Planning Board has a clear mandate, backed up by authority, in
connection with this conditional use permit, including: (1) the LWRP and its policies; (2) The
Zoning Law and the purposes of the Core Riverfront (C-R) District; (3) the Conditional Use
Permit criteria; and (4) the authority of the Planning Board to attach conditions to a Conditional
Use Permit in order to achieve the criteria and the purpose of the C-R District. As part of its
review,
In approving any such use, the Planning Board shall take into consideration the public health, safety and welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular, and may prescribe appropriate conditions and safeguards as may be required in order that the result of its action may, to the maximum extent possible, further the expressed intent of this chapter and the accomplishment of the following objectives in particular...
That the proposed use shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties.
That section is important because it empowers you to protect, not just the public health, safety
and welfare, but also the “comfort and convenience” of the public in general, and “in particular”
the residents of the immediate neighborhood. That means that you have an affirmative,
mandatory obligation to further the expressed intent of the Zoning Law.
We urge this Planning Board to review this project carefully, and to review the City’s objectives
and vision for this area.
Part 8
Important site plan approval provisions.
The Zoning Law’s provisions on the review of site plans also establish definitive standards
which must be met by Colarusso. As there were within the conditional use permit standards,
there are provisions applicable to the review of site plans which set important thresholds which
must be met.
Hudson Zoning Law §325-35, entitled “Site development plan approval,” sets forth the
standards. Subsection (H) is entitled “ Duties of the Planning Board; procedure.” That section
says:
In considering whether to approve a site plan or site plan amendment, the Planning Board shall take into consideration the public health, safety and general welfare, the general purpose and intent of this chapter, the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular, ...
That section goes on to say that the Planning Board’s decision must be based upon grounds
which include the following:
- Maximum safety of pedestrian and vehicular traffic access and egress.
- Site layout (including location, power, direction and time of any outdoor lighting of the site) which would have no significant adverse impact upon any adjoining or nearby properties by impairing the established character or the potential use of properties in such districts. Any adverse impacts must be mitigated to the maximum extent practicable.
- Conformance of the proposed site development plan with the City of Hudson Comprehensive Plan and, where applicable, the Local Waterfront Revitalization Program, including any applicable policies contained in the LWRP.
- All water bodies, wetlands, steep slopes, and other areas of scenic, ecological and historic value shall be preserved insofar as possible. All site preparation activities shall be conducted with the goal of retaining stormwater on the site.
- Landscape treatment should be provided to enhance architectural features, strengthen vistas and visual corridors and provide shade.
The expansion of the haul road affects traffic and intersections in the City, but also impacts
water bodies where the haul road causeway crosses the bay. The site plan approval standards
set forth above empower this Board to protect the public health, safety and welfare of the
residents of the immediate neighborhood, We urge this Planning Board to scrutinize this project
to ensure that these standards, and the City’s objectives for the Riverfront Core District, are met.
Part 9
Conclusion
As you move forward with your review of the conditional use permit, we ask that you remember
your duties and obligations to the neighbors surrounding the project. You are tasked to “protect
the health, safety and welfare of residents living in close proximity to commercial docks and the
public while recreating and using public facilities adjacent to commercial docks as authorized in
the Local Waterfront Revitalization Plan.” These are complex issues that deserve a thorough
and comprehensive review of the project, as a whole. We urge you to consider all the resources
available to you that describe and discuss Hudson’s vision for this area, and to ensure that
these visions are properly protected during the course of your review.
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