091207 g&l memo of comment final

8/14/2019 091207 G&L Memo of Comment Final

1/21

MEMORANDUM OF COMMENTon behalf of:

Saugerties Citizens for Smart Developmenton

Partition Street Project, LLCRe lead Agencys Determination of Significance

Pursuant to the New York State Environmental Quality Review Act

Dated: 08 November 2009

Submitted by:John F. Lyons, Esq.

149 Wurtemburg RoadRhinebeck NY 12572

T:845.876.2800E-Mail: [email protected] Site: www.grantlyons.com


2/21

i

MEMORANDUM OF COMMENT

Table of Contents

Part I: Introduction......................................................................................................... 1

Part II: Summary............................................................................................................ 2

Part III: The Area Around this Project & Its Uniqueness and Importance....................... 2

1. Historic Character and Significance........................................................ 2

2. Visual Qualities....................................................................................... 4

3. Ecological Qualities................................................................................. 4

Part IV: SEQRAs Goals, How those Goals are Achieved,Your Responsibilities as Lead Agency, & the VillagesRecognition of SEQRAs Importance................................................................ 5

1. SEQRAs Goals....................................................................................... 5

2. How SEQRAs Goals Can Be Achieved by A Lead Agency..................... 6

3. The Lead Agencys Responsibilities in Making aDetermination of Significance................................................................... 7

4. Recognition of SEQRAs Importance by the Village of Saugerties............ 7

Part V: Type I Actions and the Presumption that theyThreaten Potential Adverse Impacts Requiring a Positive Declaration.................. 8

1. Type I Action Classification Presumes the Likelihoodof Significant Adverse Environmental Impacts......................................... 8

2. Impact upon Aesthetic Resources Is an AppropriateComponent of SEQRA Review................................................................. 9

Part VI: The Legal Threshold for Issuance of a Positive DeclarationIs Low, Especially Where A Type I Action Is Involved......................................... 9

Part VII: The Record Contains Ample Evidence That thisProject May Have a Significant Adverse Impactupon the Sensitive Environment Surrounding the Site...................................... 9

1. The EAF identifies Seven Potential LargeImpacts from this Project......................................................................... 9


3/21

ii

2. The EAF Fails to Identify Other Potential Large AdverseEnvironmental Impacts Which May Be Caused by this Project............... 11

A. Impacts to Community Character Have Not Been Considered......................................................... 11

i. SEQRA & Community Character Impacts........................ 11

ii. Community Character & the Importanceof this Project Site............................................................. 12

a. The Former Cantine Mill Site................................. 13

b. Nanny Goat Hill..................................................... 13

iii. The Impacts to Community Character HaveBeen Thus Far Ignored..................................................... 14

B. Visual Impacts Have Not Been Considered Sufficiently................ 14

C. LWRP Consistency Has Been Ignored......................................... 15

D. Other Impacts Have Been Insufficiently Considered...................... 16

i. Blasting.............................................................................. 16

ii. Traffic................................................................................ 16

iii. Environmental Condition................................................... 17

3. Scenic Hudson Also Advocates Issuance of a Positive Declaration.......... 17

Part VIII: Lack of Public Opportunity to Participateand Consideration of Alternatives...................................................................... 17

1. Public Participation is Marginalized and Difficult...................................... 18

2. Consideration of Alternatives has Been Ignored..................................... 18

Part IX: Conclusion....................................................................................................... 18


4/21


5/21

2091207 G&L Memo of Comment Final.wpd

intended goals may be fulfilled. The Village of Saugerties has a rich historic character,spectacular scenery (especially in the area of this Project), and a small-town character andquality of life, all of which make it a special place, and worthy of preservation and protection. Afull and proper environmental review of this project will be of the utmost importance if thisproject is truly to become an asset to the Village.

Part IISummary

The legal threshold for issuing a Positive Declaration is low. It requires that a PositiveDeclaration be issued if a project may have a significant effect on the environment. Thatthreshold is amply met in this case. The record contains ample evidence that this project may have an adverse environmental impact on a number of important nearby environmentalresources. In order to minimize those adverse impacts, an Environmental Impact Statementshould be required so that there will be an in-depth study of the impacts and a full investigationof all reasonable means of mitigation and design alternatives. Our clients strongly urge thisBoard to issue a Positive Declaration as its determination of significance pursuant to SEQRAregarding this application. The reasons in support of this request are discussed in detail below.

Part IIIThe Area Around this Project & Its Uniqueness & Importance

This Project is located on a site of historic and scenic importance. The Project is also in closeproximity to numerous important and extraordinary environmental resources. This Project site,and its surrounding area, places these sensitive resources squarely within the zone of thisProjects potential adverse environmental impact. This is a critical factor in why this Projectshould receive a Positive Declaration and a more in-depth review of those potential adverseimpacts.

1. Historic Character and Significance

The Village of Saugerties is steeped in a long history which pre-dates the Revolution. TheVillage is unique because so much of its historic character remains intact. In addition, theVillage is also located in an area of extraordinary scenic quality characterized by dramatictopography and both the Esopus Creek and the Hudson River. In the aggregate, these qualitiesmake the Village of Saugerties special and unusual.

The importance of Saugerties and its historic character was recognized by the New York StateOffice of Parks, Recreation and Historic Preservation (NYSOPRHP). In a letter to Dan Shuster,then the planner for the Village, Neil G. Larson, a field representative for the NYSOPRHPHistoric Preservation Field Services Bureau, wrote:

On October 12, you and I conducted a windshield survey of the coastal zone inthe Village of Saugerties to assess its eligibility for the National Register of Historic Places. Based on this visual study of the area, I would like to make thefollowing observations: ... (1) The entire zone has a tremendous amount of history associated with it. As the core of the community, it exhibits significantfeatures of its patterns of settlement and development, of transportation and


6/21

Letter of Neil G. Larson of New York State Office of Parks, Recreation and Historic1

Preservation to Dan Shuster, dated November 7, 1983, and which appears at Appendix A to theVillage of Saugerties Local Waterfront Revitalization Plan.

Addendum to Environmental Assessment Form, Part 1, Section III(J) at Page 15.2

History of the Village of Saugerties, Village of Saugerties web site at3

http://village.saugerties.ny.us/content/history.

Karlyn Knaust Elia, On Nanny Goat Hill , 2009, at Page 1.4


commerce, and of the growth of an industrial economy and society. The historyof Saugerties is closely tied to the Esopus Creek and its basin at the Hudson. Itis an area of extreme sensitivity and potential (emphasis added). 1

A historic district is comprised of a group of buildings, properties or sites that have beendesignated as historically or architecturally significant. A significant part of the Village has sincebeen added to the National Register of Historic Places. Indeed, Part I of the ApplicantsEnvironmental Assessment Form (EAF) acknowledges that the Project site is locatedsubstantially contiguous to the Central Historic District which includes parts of Partition Street. 2

The site is also across the Creek from the South Historic District.

The Project site itself also has significant historic and archeological value. The portion of thesite for which the hotel and restaurant are proposed is the site of the former Martin CantinePaper Company mill. The Martin Cantine Paper Company perfected the process of themanufacture of coated papers. The quality of its papers were recognized the world over andbecame known as the Tiffany of the Trade. 3

Another portion of the Project site, one now proposed for a parking lot, is a local geologic andhistoric landmark called Nanny Goat Hill. Nanny Goat Hill is the subject of a 2009 bookentitled On Nanny Goat Hill by Karlyn Knaust Elia, a former Ulster County Historian. Theimportance of Nanny Goat Hill is best described by Ms. Elia:

Nanny Goat Hill, the rock promontory between Montgomery and Dock Streets, isa familiar and significant landmark in the history of the Village of Saugerties.From atop its rugged heights the Esopus Creek can be seen to the south andeast as it wends its way to the Hudson River. To the West Mount Marion andOverlook Mountain are visible. It is precisely because of its commanding viewsthat Nanny Goat Hill qualified as the official Saugerties Ground OperationDefense Post during the early years of the Cold War and also as the local basefor Operation Sky Watch - code name BRAVO NOVEMBER ZERO ZEROBLACK - overseen by the United States Air Force. As a scenic overlook it hasbeen used by generations of Saugerties citizens. Its beauty has been aninspiration for the poetic. Its long history evokes sentiments that abide in thehearts of those who remember. 4

Ms. Elias book is in the record. A copy was submitted to the Planning Board by Village residentEleanor Redder in conjunction with her written comments on this project.


7/21

Village of Saugerties LWRP, Section II(B)(5) at Pages 11 and 12.5

Village of Saugerties LWRP, Section II(B)(2) at Page 10.6


Finally, according to Part 2 of the EAF, the Project site contains an archeological or fossil bed.The EAF Part 2 further indicates that the Project site is designated as sensitive for archeological sites on the New York State Inventory.

2. Visual Qualities

In addition to its historic value and its proximity to the historic district, the Project site itself islocated in one of the most prominent and dramatic scenic locations in the Village. The Projectsite is situated on a high bluff overlooking the Esopus Creek. This vista is made moreextraordinary by the dam and waterfall located at the foot of the steep cliff upon which theProject is located.

The visual importance of Project site is twofold. From the Project site, there are stunning viewsoff the bluff and over and across the Creek. And to the Project site, there is also anextraordinary view. The project site is a prominent, central feature of a sweeping vista of theEsopus Creek basin when viewed from the South. This sweeping gateway vista greets everyvisitor who approaches the Village via Route 9W from the southerly direction. Regarding thisvista, the Village Local Waterfront Revitalization Plan (LWRP) says:

Views at the several right angle turns of Route 9W south of the bridge areparticularly prominent and attractive, alternating between river and mountainvistas within several hundred feet, and provide a pleasing entrance to the Villageand its waterfront. 5

Finally, it should be noted that the coastal zone in which this Project is located is also part of aNew York State Scenic Area of Statewide Significance (SASS). This State designation confirmsthe scenic value of the Village coastal zone.

3. Ecological Qualities

The areas near the Project site are also of ecological and environmental value. The inventory of wildlife resources in the Village LWRP states that:

The wildlife resources in this area are important. The Esopus Creek has beenidentified by the Department of Environmental Conservation as a significantfisheries resource as a spawning ground, nursery and feeding ground for avariety of freshwater species 6

Also, just to the south of the Project site is the Esopus Bend Nature Preserve, a 126 acrepreserve established to protect and preserve wildlife in the Esopus Creek basin. The proximityof such ample wildlife resources in what is essentially an urban setting is extremely importantand worthy of preservation.


8/21


Part IVSEQRAs Goals, How those Goals are Achieved,

Your Responsibilities as Lead Agency& the Villages Recognition of SEQRAs Importance

This memorandum is best begun, not with a discussion of the Partition Street project, but bydiscussing SEQRA and your responsibilities as lead agency.

1. SEQRAs Goals

The Partition Street project is large and complex. In such cases, one can easily become lost inthe many details. But before plunging into a discussion of those details, I wish to step back andreconnect you, as Lead Agency, with the larger picture.

In Section 8-0101 of the New York State Environmental Conservation Law (ECL), theLegislature stated its purpose in enacting SEQRA. It said:

It is the purpose of this act to declare a state policy which will encourageproductive and enjoyable harmony between man and his environment; topromote efforts which will prevent or eliminate damage to the environment andenhance human and community resources; and to enrich the understanding of the ecological systems, human and community resources important to thepeople of this state.

ECL Section 8-0103 contains the State Legislatures findings, its goals for enacting SEQRA.These findings will reconnect you to the State Legislatures hopes for what lead agencies under SEQRA should be aiming to accomplish. The Legislature said:

[The] enhancement of human and community resources depends on a qualityphysical environment.

The capacity of the environment is limited, and it is the intent of the legislaturethat the government of the state take immediate steps to identify any criticalthresholds for the health and safety of the people of the state and take allcoordinated actions necessary to prevent such thresholds from being reached.

It is the intent of the legislature that all agencies which regulate activities ...which are found to affect the quality of the environment shall regulate suchactivities so that due consideration is given to preventing environmental damage.

It is the intent of the legislature that all agencies conduct their affairs with theawareness that they are stewards of the air, water, land and living resources,and that they have an obligation to protect the environment for the use andenjoyment of this and future generations.

These are your goals. Lead agencies like you have been designated as caretakers. The Statehas delegated to you the task of assuring that the letter and spirit of SEQRA will be fulfilled in away that will achieve those goals.


9/21

Marsh, Symposium on the New York State Environmental Quality Review Act:7

Introduction - SEQRAs Scope and Objectives , 46 Alb. L. Rev. 1097, 1113 (1982). See also ,Caffry, The Substantive Reach of SEQRA: Aesthetics, Findings, and Non-Enforcement of SEQRAs Substantive Mandate , 65 Alb. L. Rev. 393 (2001).

83 Ad2d 460 (3 Dept. 1981) .8 rd

Nichols Yacht Yard v. Board of Trustees of Mamaroneck , Slip Op. No. 19599/84 (Sup.9

Ct. Westchester Co., Oct. 28 1987).


2. How SEQRAs Goals Can be Achieved By a Lead Agency

So how does SEQRA provide the means to achieve those goals? Former NYSDECCommissioner, Langdon Marsh, once said:

[the] main effect of SEQRA [is] to screen out environmentally unsound proposalsby modifying them to reduce environmental impacts or by deterring agencies anddevelopers from proposing projects which would be environmentally unsound or controversial. 7

In a case called Schenectady Chemicals v. Flacke , an appeals court said:8

It is the stated purpose of SEQRA to promote efforts which will prevent or eliminate damage to the environment and enhance human and communityresources (ECL 8-0101). This policy is to be implemented to the fullest extentpossible (ECL 8-0103). By enacting SEQRA, the Legislature created aprocedural frame work which was specifically designed to protect theenvironment by requiring parties to identify possible environmental changesbefore they have reached ecological points of no return ( Matter of Town of Henrietta v. Department of Environmental Conservation , 76 AD2d 215, 220). Atthe core of this framework is the EIS, which acts as an environmental alarmbell ( Id. at 220).

SEQRA contemplates an active screening process, and the lead agency is the keystone of thatprocess. Lead agencies are empowered to require any mitigating condition or requirementdesigned to minimize significant adverse impacts. To meet SEQRAs goal of avoiding or 9

minimizing the adverse environmental impacts of an action, lead agencies have a number of substantive powers, including requiring mitigation measures, imposing permit conditions,approving a project alternative or denying the application.

In order to maximize SEQRAs effectiveness, a lead agency needs to avoid staying in a reactivemode and acting simply as an umpire calling balls and strikes. A lead agency can maximize itseffectiveness by exercising its authority actively. In approaching a substantive environmentalreview, the lead agency should formulate its own vision of what the project should be. This isnot to say that the lead agency should be designing the project. But it does say that the leadagency should be taking the lead in formulating a vision about how the project will fit into thesurrounding environment and community.


10/21

Quoting Legislative Memorandum of Assemblyman Posner, 1975 N.Y. Legis. Ann. at 438.10

E.F.S. Ventures Corp. v. Foster , 71 NY2d 359 (1988).11

RyeTown/King Civic Association v. Town of Rye , 82 AD2d at 481.12

Town and Village of Saugerties Comprehensive Plan, December 20, 1999, Goal #1,13

Recommendation 1.9.


3. The Lead Agencys Responsibilities in Making a Determination of Significance

Before discussing specific adverse environmental impacts presented by this project, it is alsoappropriate to discuss the rules which govern determinations of significance pursuant toSEQRA.

The purpose of SEQRA is to permit local agencies, like your Board, to intelligently assess andweigh environmental factors along with social, economic and other relevant considerations indetermining whether or not a project or activity should be approved or undertaken. The State 10

has mandated that you conduct this environmental assessment wherever a proposed projectposes the possibility of significantly impacting the environment. Section 8-0109 of the New YorkState Environmental Conservation Law (ECL) states bluntly:

All [reviewing] agencies ... shall prepare, or cause to be prepared by contract or otherwise, an environmental impact statement on any action they propose ...which may have a significant effect on the environment. (emphasis added)

This task of assessing and determining potential environmental impacts is one of the mostimportant duties that a Board like yours carries out. Indeed, in commenting on this emphaticpolicy and SEQRA, New York States highest court, the Court of Appeals, stated: [t]he Statehas made protection of the environment one of its foremost policy concerns. 11

Recognizing this mandate, one court aptly described the SEQRA process as an alarm bellwhose purpose is to alert responsible public officials to environmental changes before theyhave reached ecological points of no return. 12

4. Recognition of SEQRAs Importance by the Village of Saugerties

The importance of SEQRA has been formally recognized by the Village. In the Town andVillage of Saugerties Comprehensive Plan (hereafter Village Comprehensive Plan), it statesthat:

The Saugerties Comprehensive Plan envisions that the Town and Village: ...(1.9) ensure [that] lead agencies implementing the State Environmental QualityReview Act (SEQRA) follow the mandate [Section 617.1(d)] to consider social aswell as economic and environmental factors, produce documentsunderstandable to the general population, and provide full opportunity for publiccomments and consideration of project alternatives that are compatible withexisting community character (emphasis added). 13


11/21

Town and Village of Saugerties Comprehensive Plan, December 20, 1999, Goal #5,14

Recommendation 5.7.

6 NYCRR 617.4(a).15

Id.16

6 NYCRR 617(4)(a)(1).17

6 NYCRR 617.6(b)(3).18


The Comprehensive Plan states further:

The Saugerties Comprehensive Plan envisions that the Town and Village: ...(5.7) [will] take full advantage of the State Environmental Quality Review Act as ameans to obtain detailed information on the environmental and communityimpacts of proposed development, make potential concerns open to publiccomment and explore alternatives to continue the project (emphasis added). 14

Thus, the Village Comprehensive Plan expects that, as Lead Agency, you will strive to take fulladvantage of the SEQRA process and to assure open public comment as well as aconsideration of alternatives.

Part VType I Actions and the Presumption that they Threaten Potential

Adverse Impacts Requiring a Positive Declaration

1. Type I Action Classification Presumes the Likelihood of Significant AdverseEnvironmental Impacts

You have already classified this Project as a Type I action under SEQRA. You were required toclassify this Project as Type I because of its proximity to the adjacent Partition Street HistoricDistrict. This classification is critical because it establishes an important presumption whichmust be considered as part of your determination of significance.

The purpose of the list of Type I actions developed by the New York State Department of Environmental Conservation (DEC) is to identify for state and local agencies, project sponsorsand the public, those actions that are more likely to require the preparation of an environmentalimpact statement (EIS) than unlisted actions. The fact that an action or project has been listed15

as a Type I action carries with it the presumption that it is likely to have a significant effect onthe environment and therefore may require an EIS. 16

Classification of an action as Type I is critical in two respects. First, it carries with it thepresumption that it is likely to have a significant effect on the environment and therefore mayrequire an EIS. Second, it also triggers the requirement that any environmental review17

conducted by the lead agency must be coordinated with other interested or involved agencies. 18


12/21

ECL 8-0103, 8-0105[6]; See also, Matter of WEOK Broadcasting v. Planning 19

Board of the Town of Lloyd , 79 NY2d 373 (1992).

Matter of Munash v. Town Board of the Town of East Hampton , 297 AD2D 345 (2d20Dept. 2002); Scenic Hudson v. Town of Fishkill Town Board , 258 AD2d 654 (2d Dept. 1999);Callanan Industries, Inc. v. Rourke , 187 AD2d 781 (3rd Dept. 1992).

ECL 8-0109(2) (emphasis added).21

Id.22


2. Impact upon Aesthetic Resources Is an Appropriate Component of SEQRAReview

Aesthetic considerations are a proper area of concern in the SEQRA review process as theLegislature has declared that the maintenance of a quality environment ... that at all times ishealthful and pleasing to the senses is a matter of State-wide concern. Consequently, it is19

your obligation to consider the potential adverse impacts this project may have upon the scenicand historic qualities of the area surrounding this site.

Part VIThe Legal Threshold for Issuance of a Positive Declaration Is Low, Especially Where A

Type I Action Is Involved

Perhaps the most important SEQRA standard that you, as Lead Agency, need to remember isthe threshold for when a Positive Declaration should be issued.

It is a long-standing rule of law in New York State that the threshold for requiring thepreparation of an EIS is low. 20

It is important that you understand that it is not necessary for concerned citizens to demonstratethat a proposed project will have an adverse impact on the environment. Instead, SEQRArequires the preparation of an EIS for any action that may have a significant effect on theenvironment. As the use of the word may indicates, SEQRA requires that a positive21

declaration be issued where the potential for a significant environmental effect exists. 22

Part VIIThe Record Contains Ample Evidence That this Project May Have a

Significant Adverse Impact upon the Sensitive Environment Surrounding the Site

The record before you contains a significant body of indicators that establish that the Projectmay have a significant adverse impact on the environment. Those indicators are

1. The EAF identifies Seven Potential Large Impacts from this Project

Part 2 of the EAF which you, as Lead Agency, prepared in connection with this Project identifiesseven impacts which are each classified as a potential large impact. These impacts are:


13/21


1. EAF Part 2, Item 1, page 11. Impact on Land. In response to the question as towhether this Project will result in a physical change to the project site, this Itemstates that there will be a potential large impact from construction on slopes 15%or greater or where the general slopes in the project area exceed 10%.

2. EAF Part 2, Item 1, page 11. Impact on Land. In response to the question as towhether this Project will result in a physical change to the project site, this Itemstates that there will be a potential large impact from construction on land wherebedrock is exposed or generally within 3 feet of existing ground surface.

3. EAF Part 2, Item 5, page 13. Impact on Water. In response to the question as towhether this Project will affect surface or groundwater quality, this Item statesthat there will be a potential large impact associated with a required dischargepermit.

4. EAF Part 2, Item 12, page 16. Impact on Historic and Archaeological Resources.In response to the question as to whether this project will impact any site or structure of historic, prehistoric or paleontological importance, this Item statesthat there will be a potential large impact from the Project taking place wholly or partially within or substantially contiguous to any facility or site listed on the Stateor National Register of Historic Places.

5. EAF Part 2, Item 12, page 16. Impact on Historic and Archaeological Resources.In response to the question as to whether this project will impact any site or structure of historic, prehistoric or paleontological importance, this Item statesthat there will be a potential large impact from impacts to an archaeological siteor fossil bed located within the Project site.

6. EAF Part 2, Item 12, page 16. Impact on Historic and Archaeological Resources.In response to the question as to whether this project will impact any site or structure of historic, prehistoric or paleontological importance, this Item statesthat there will be a potential large impact from Project construction occurring inan area designated as sensitive for archeological sites on the New York StateSite Inventory.

7. EAF Part 2, Item 17, page 18. Impacts from Noise and Odor. In response to thequestion as to whether this project will create objectionable odors, noise or vibration as a result of the proposed action, this Item states that there will be apotentially large impact due to blasting occurring within 1,500 feet of a hospital,school or other sensitive facility.

These seven potentially large impacts are all significant. Many of them are potential adverseimpacts on the important, sensitive and unique environmental resources which lie either on theProject site itself or near to this Project site.

As was described in Part III of this memo, the environmental resources nearby that will beaffected are not ordinary or garden variety. They are well known. They are recognized as


14/21

What is Community Character? , Drayton Grant NYSBA The New York23

Environmental Lawyer, Winter 2006, Vol. 26, No. 1, p. 17.


special assets, not just to the Village of Saugerties, but also on a State and National level asevinced by the historic districts listing on the National Register of Historic Places and thecoastal zone being part of a designated New York State Scenic Area of Statewide Significance.

When seven potentially large impacts to such unique and valuable resources are identified inthe EAF, it is manifest that there indeed may be adverse environmental impacts stemming fromthis action. In Part VI of this memo, it is established that the threshold for a Positive Declarationis low. Alone, a single potential large adverse environmental impact can support a PositiveDeclaration. Here there are at least seven. Thus, the threshold is overwhelmingly met and aPositive Declaration is warranted. A hard look at the potential impacts of this project requiresa full study in the form of an EIS and a full investigation of all reasonable mitigation possibilities.

2. The EAF Fails to Identify Other Potential Large Adverse Environmental ImpactsWhich May Be Caused by this Project

Although the EAF Part 2 identifies seven potential large adverse environmental impacts, theEAF Part 2 also understates potential large impacts to several other important resources. As aconsequence, the EAF has underestimated the potential large adverse impacts which mayoccur.

A. Impacts to Community Character Have Not Been Considered

Impacts to community character are recognized as important by SEQRA, and in this case, littleor no consideration has thus far been given to these impacts. It has been established previouslythat the character of the local community is important and has been recognized at all levels of government from the local to the national level in some form or other.

i. SEQRA & Community Character Impacts

Community character may be derived from both formal, adopted local, regional, state andnational plans and designations in and around the site of the project, and also from the findingsof professional studies of the area that may be affected by the project. It is a broad term usedto address the totality of human social, economic and aesthetic experience in the project area. 23

Impacts to community character are expressly included as part of a SEQRA review. TheNYSDEC SEQR Handbook explains why, stating:

20.[Q:] Why is community character an environmental issue?

[A:] The Legislature has defined environment to include the physical conditionswhich will be affected by, among other things, ... existing patterns of populationsconcentration, distribution or growth, and existing community or neighborhoodcharacter. [citation omitted] Court decisions have held that impacts uponcommunity character must be considered in making determinations of


15/21

In re Palumbo Block Co ., 2001 WL 651613 (DEC Commr Interim Decision, June 4,24

2001)

In re Crossroads Ventures, LLC , Ruling 3, (DEC Commr Decision, Sept. 7, 2005)25


significance even if there are no other impacts on the physical environment (emphasis added). NYSDEC, SEQR Handbook , Chapter 4, Page 43.

21. [Q:] How can you determine whether an impact upon community character may be significant?

[A:] Evaluation of effects upon community or neighborhood character is oftensubjective and may not be measured in precise quantifiable terms. Nevertheless,the characteristics of an existing area can be described by noting such elementsas size, location, the mix of its land uses and amenities and existence of architectural elements or structures representative of the community. If it can beshown that the proposed action has a potential to change a community in such away as to cause a major modification in any of the above characteristics, aquestion of significant impact upon community character would be reasonable. ....NYSDEC, SEQR Handbook , Chapter 4, Page 43.

The complexity of the term community character, as used in SEQRA, has been recognized. Ina recent decision, the NYSDEC Commissioner noted this complexity stating:

[T]he issue of community character may intertwine and overlap with issues suchas noise, aesthetics, traffic and cultural resources, and a commissioners finaldetermination may necessarily involve a judgment that integrates all thoseissues ... Accordingly, the issue of community character cannot necessarily beviewed in isolation and may include a myriad of diverse components. 24

Recently, the NYSDEC acted as lead agency for the environmental review of a case involving alarge resort proposed to be built in a small, rural Catskills town. In that case, the Catskill ParkCoalition did an excellent job of vividly describing their concerns about the impacts of introducing a huge resort into a rural town:

Through the introduction of exclusive gated residential communities and theunprecedented large scale development of two hotels, two golf courses, and anattendant city, the project will overwhelm the architecture, hamlets and naturalresources including the solitude and scenic vistas currently viewed as integral tothe communities character. 25

ii. Community Character & the Importance of this Project Site.

This Project site has been seen by the Village itself as a vitally important part of the overallcommunity.


16/21

Letter to Lanny Walters, August 11, 2000.26

August 24, 2000 Minutes by Gary Bischof.27

Letter to Lucy A. Breyer.28


a. The Former Cantine Mill Site

In 2000, Village of Saugerties Mayor Bob Yerick set up the Cantine Paper Mill Park SteeringCommittee to guide the project of developing the former Cantine Mill site into a public parkoverlooking the falls. He wrote, I can envision a beautifully landscaped park with walking paths... and benches to view the falls. The Mayor convened the first meeting August 24 of that26

year, and right from the first meeting, the concept of commercial use, including a hotel and arestaurant, were discussed along with the idea for the park. 27

By October, the Committee had a plan for the Proposed Paper Mill Park showing a proposedpromenade exactly where our clients have again proposed it be located. The plan incorporatescommercial space with a trail from Partition Street through the property, then along the existingretaining wall and out to Dock Street. The Steering Committee Report noted that the site is richin history. Their vision was:

Simply put, we envision the Paper Mill Park as a community gathering space withaccess to the waterway, and which realizes the propertys historical value. ...Visitors will enjoy the scenic promenade overlooking the waterfall and EsopusCreek Valley. ... Ideally the trails will eventually link other public waterfront areasof the village including the Village Beach and the Light House, using public rightsof way.

The Report Summary says, right at the top in bold letters, PUBLIC ACCESS TO PARK LIKEGATHERING SPACE IS KEY. The Report also called for a promenade overlooking the fallsand creek, a trail system down to the creek, and trail links to other public waterfront areas.

The Mayor wrote to Senator Bonacic December 6, 2000, sending him the Steering CommitteeReport and asking that he support the project. Notes indicate that Congressman Hinchey wasalso contacted for this purpose. Mayor Yerick also wrote the State Office of Parks, Recreationand Historic Preservation December 1, 2000, seeking a grant to pursue the purchase andrevitalization of the Cantine site. While the purchase never materialized, the Committee and28the Mayor recognized the importance of the site to the community and its significance to thehistory of the Village and the region, and its call for a trail network should be explored in thereview of this project.

b. Nanny Goat Hill

The importance of Nanny Goat Hill was described earlier in Part III of this memo using thequote from On Nanny Goat Hill by Karlyn Knaust Elia. That quotation eloquently describes theHills importance. What that quote does not convey is the local love for the place. That feeling isdemonstrated by the over 400 signatures which were collected for a Save Nanny Goat HillPetition in the Spring of this year. That petition states:


17/21


We the undersigned oppose the destruction of Nanny Goat Hill and its use as aparking lot for the Partition Street Properties (sic) plans for the former Cantinemill site. We look forward to the beneficial restitution of the former mill site inways that secure and protect the environment, ensure public access to theEsopus Creek, preserve the dramatic escarpment, and utilize Nanny Goat Hill for conservation, public access, and Civil Air Patrol tribute purposes.

A copy of this Petition is part of the record.

iii. The Impacts to Community Character Have Been Thus Far Ignored

Both Parts 1 and 3 of the EAF ignore the potential impacts of this project on communitycharacter. Impact to community character goes virtually unmentioned.

No consideration has been given to the Villages own vision for the site as envisioned by theCantine Paper Mill Park Steering Committee. This should be considered by the Planning Boardas it reviews the proposal now before it.

And the impacts of blasting away and paving-over beloved Nanny Goat Hill is also ignored.

These potential adverse impacts require a Positive Declaration so that they can be properlystudied and then appropriate mitigation required. To issue a Negative Declaration while largelyignoring these impacts will be a blatant failure to conduct the hard look required of a Lead

Agency and will render a Negative Declaration legally defective and subject to reversal in thecourts.

B. Visual Impacts Have Not Been Considered Sufficiently

The potential visual impacts of this development have not been sufficiently described or studiedthus far. In Part III of this memo, the importance of the views to and from this site werediscussed. It was also pointed out that the Project Site is part of a designated Scenic Area of Statewide Significance.

Visual impacts are treated with only a glance in the EAF Parts 1 and 2. As Lead Agency, youdid complete the EAF Visual Impacts Addendum, which was a good step. However, thepotential visual impacts of this project clearly need the in-depth study that a full EnvironmentalImpact Statement (EIS) will provide. As noted earlier, this Project site is located such that it willaffect important views. From visitors coming down Route 9W through the Villages southerngateway, the Project will sit squarely in the center of a sweeping vista of the southern edge of the Village. From the North, the Project site will be the cental feature of the view down PartitionStreet. And as proposed, the Project will block out the present view of the Esopus from thatperspective.

The SEQR Handbook published by the NYSDEC offers some beginning guidance aboutassessing visual impacts. The Handbook states:

19. [Q:] How can the significance of visual impacts be considered under SEQRwhen such values are so subjective (i.e., beauty is in the eye of the beholder)?


18/21

Addendum to EAF Part 1 at Page 15.29

Id.30

EAF Part 2, Impact on Land, Item 2.31


[A:] Because the quality of an aesthetic resource cannot be determined by aprecise formula and because opinions may vary concerning the evaluation of visual effects, there exists a widespread, but erroneous notion that aestheticsanalysis is hopelessly subjective. Instead, research has clearly established thatlandscape preference and perception is not arbitrary or random, that along withsome variability there is some substantial regularity in the perceptions of significant adverse and beneficial visual effects. It is upon this regularity of human judgment concerning aesthetics that objective decision-making depends.NYSDEC, SEQR Handbook , Chapter 4, Page 42.

Thus, we know that visual impacts can be quantified, and that indeed, a Lead Agency isobligated to do so if those impacts will be significant.

If a Positive Declaration is issued for this Project, then the opportunity for a proper review of visual impacts will be present. The Lead Agency can then require the kinds of analysis whichare commonly performed in connection with other projects which may adversely affectsignificant views or viewsheds. This kind of analysis would involve the preparation of visualsimulations will allow the Lead Agency and the public to view a realistic image of the Project asproposed from a variety of perspectives. This commonly required analysis has proven to be anextremely valuable tool and has been responsible for prompting important design changeswhich can effectively mitigate visual impacts.

The state of analysis in the EAF at present is almost non-existent. The only treatment of thisissue states that a detailed landscape plan will be filed. Otherwise, the EAF Addendum29

dismissed visual impact stating:

plans do not call for the alteration of significant undeveloped areas which can besaid to be of importance to the community at large, inasmuch as the existing cliff situate on the premises and the Esopus Creek will remain in their current statefollowing project completion. 30

Not only is this insufficient, it is wrong. That statement contradicts Item 12 in EAF Part 1 whichadmits that a unique rock cliff or outcropping on the site will be developed for a parking lot. Part2 of the EAF also acknowledges that there will be an effect to a unique or unusual land form onthe site. 31

A Positive Declaration must be issued here so that the visual impacts of this project can beproperly assessed, and mitigated. Without this analysis, the hard look test will fail.

C. LWRP Consistency Has Been Ignored

Another important defect in the EAF is that LWRP consistency has been ignored. It is conceded


19/21

Addendum to EAF, Section IV(N) at Page 19.32

The Village of Saugerties LWRP was required to be reviewed and approved by the33

New York State Department of State Coastal Resources Program prior to adoption.


that this Project is located in the Villages coastal zone. The issue of consistency is treated bythe mere statement that consistency will be determined later by the Village of SaugertiesWaterfront Advisory Board. The applicant goes on further to say they are confident that the32

project will be consistent.

The problem with that treatment is that it is insufficient for SEQRA purposes. While theconsistency determination from the Waterfront Advisory Board is indeed required, thatdetermination does not mean that consistency issues are not part of a proper SEQRAenvironmental review. The LWRP is a comprehensive document and it plays an important rolein establishing the vision of the Village and the State for the coastal zone. The policies of the33

LWRP must be incorporated and considered during the SEQRA review so that mitigation andcompliance can be achieved through project alteration and design.

A Positive Declaration will ensure that this issue will be studied and properly assessed. Withoutthat study and assessment, this review will fail the hard look test.

D. Other Impacts Have Been Insufficiently Considered

In addition, there are a host of other potentially adverse environmental impacts which have notbeen adequately treated thus far, and which require a Positive Declaration in order to beproperly assessed.

i. Blasting

Blasting is treated by saying that a blasting plan will be provided. However, that view of blastingand its impacts is too narrow. And since blasting was listed as having a potentially large impact,this requires in-depth study. The close proximity of residential homes and the nearby EsopusCreek make this an important subject. While the EAF mentions that blasting will accomplish theremoval of an incredible 19,000 cubic yards of material from the site, no consideration is givento the impacts of that removal.

ii. Traffic

Traffic is also insufficiently treated. Although the Applicant has submitted a traffic study, thelevel of analysis is low. Traffic impacts were a subject of comment by many members of thepublic at the public hearing. Many felt that the traffic analysis incorrectly presumed that thereare no present traffic problems in the area of the site at present. Moreover, the traffic analysisstopped short of providing solutions to the potential huge traffic problems which could bepresented when this project is operating at full banquet capacity. The November 14, 2008 trafficreport by Creighton Manning Engineering states:

During the peak arrival or peak departure period associated with the 500 seatcatering hall, motorists will experience some temporary traffic delays. This is


20/21


21/21


1. Public Participation is Marginalized and Difficult

One of the primary consequences of this approach is that the public opportunity for informationand comment is severely curtailed. Unlike as required for a Draft EIS, none of the materialssubmitted by the Applicant to you is available on the internet. Thus, it is much more difficult for the public to find out when information is submitted and to obtain copies of that information.

This comment is offered based on the materials which my clients were able to obtain. If it doesnot encompass all of the documentation before the Board, that proves that the failure to makethe information available on the web has had an adverse effect.

Also, opportunity for public comment is limited and constrained by the lack of document andinformation availability. If a Draft EIS were required, the Applicant would be required to addresseach and every comment raised by the public. Without that, public comment is too oftendismissed or ignored.

2. Consideration of Alternatives has been Ignored

Another important consequence of the Applicants backward approach to SEQRA compliance is

the lack consideration of alternatives. If a Draft EIS were required, the Applicant would also berequired to submit alternative project designs for the consideration of the Lead Agency and for comment by the public. That is not happening now. Moreover, all attempts to get some designalternatives onto the table for discussion have failed. Upon information and belief, my clients,the Ulster County Planning Department and Scenic Hudson have all approached the Applicantseeking to discuss alternative designs. All were rebuffed. Consequently, the issuance of aNegative Declaration in this case will ensure that SEQRAs requirement of the consideration of alternatives has not been fulfilled. Again, to do this would fail the hard look test.

Part IXConclusion

In sum, there are numerous and substantial indicators that this project presents a host of potential impacts which may have a significant effect upon the environment. In the face of thisevidence, common sense dictates that a Positive Declaration be issued here.

Finally, the issuance of a Positive Declaration is not a denial of the proposed project. It is simplyan acknowledgment that a project may have a significant impact on its community and arequirement that these potential impacts be studied in more detail so that they can beaddressed and minimized.

Respectfully submitted,

JOHN F. LYONS, ESQ.GRANT & LYONS, LLP

Attorneys for Saugerties CitizensFor Smart Development

149 Wurtemburg RoadRhinebeck, NY 12572T: 845.876.2800E-Mail: [email protected] Site: www.grantlyons.com
mailto:[email protected]://www.grantlyons.com/http://www.grantlyons.com/mailto:[email protected]

091207 g&l memo of comment final

Documents