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FOS Appeals Ruling in Case Against Gardner ZBA
In a court decision dated February 6, Judge Christopher Cahill dismissed the Friends of the Shawangunks Article 78 lawsuit against the Town of Gardiner Zoning Board of Appeals and the Wustraus, who own the property at issue.
The Friends of the Shawangunks does not believe that the Court substantively addressed our contentions regarding the scope of the Gardiner Zoning Board of Appeals’ authority to grant a variance from certain of the Ridgeline restrictions. We continue to believe that the language of the Ridgeline local law precludes certain variances that the ZBA granted in this case.
We also believe the Supreme Court was simply wrong when it concluded that the “action” was a Type 2 action under SEQRA (NYS Environmental Quality Review Act) because the ZBA determined that it was an Unlisted action. In addition, we think that the segmentation arguments that we made should have prevailed.
As we continue to believe that the ZBA decision granting the variances was in violation of both the Ridgeline local law and SEQRA, we have decided to appeal the decision.
Friends of the Shawangunks filed a lawsuit in 2007 against the Gardiner Zoning Board of Appeals over the ZBA’s granting of four variances to build a driveway and over its failure to abide by the New York State Environmental Quality Review Act, or SEQRA. This is the first test of Gardiner’s Shawangunk Ridge Protection zoning regulations, adopted in 2006.
The property owners sought the variances because:
- The proposed driveway was 3,130 feet long but the code sets a limit of 2,500 feet.
- The new SRP regulations prohibit construction of more than 250 feet of driveway on slopes of between 20% and 30%; the proposal called for 1,031 feet of driveway on such slopes.
- The proposal also calls for building 200 feet of drive on slopes greater than 30%, while the regulations prohibit construction on slopes of more than 30% under any circumstances.
- The grading and cutting required were well in excess of the eight-foot-wide limitation.
The SEQRA violations were numerous. Most significant was approving the driveway without considering plans for a proposed house site. This is known under SEQRA as “segmentation†and is clearly prohibited, as the ZBA had been advised by its attorney.
FOS decided to bring this suit not only because the ZBA had clearly not done its job properly but also because approval of this project would set an unacceptable precedent for other property owners to use in seeking developments that would harm the Ridge.
In Defense of SEQRA,
FOS Files Brief in BKAA Mushroom-Plant Appeal
Friends of the Shawangunks has filed an amicus curae brief with the New York State Court of Appeals, urging the court to allow the Basha Kill Area Association to appeal a lower-court decision.
BKAA and other residents of Mamakating oppose a project of Yukugumi Maitaki Manufacturing to build an 825,000-square-foot mushroom plant adjoining the upper reaches of the Basher Kill and the historic D&H Canal Linear Park. The Mamakating Planning Board approved Yukigumi’s site plan and special-use permit applications in August 2006. BKAA brought an Article 78 suit against the Planning Board, and last March the Sullivan County Supreme Court ruled in favor of the board. The New York State Supreme Court–Appellate Division affirmed that decision in December 2007. Now BKAA wants the State’s highest court–the New York State Court of Appeals–to hear the case, and FOS agrees that it should.
While FOS supports the BKAA position on its merits, we filed the brief for a much broader reason. We believe that the lower-court decision, if not reviewed, could cause serious harm to the State Environmental Quality Review Act (SEQRA) and to New York Environmental Conservation Law. It could seriously limit the duties of state and local government agencies under SEQRA and frustrate one of its legislative goals: to minimize or avoid adverse environmental impacts associated with actions that state and local governments undertake or approve.
The BKAA argument has many elements–people interested in details may phone Paula Medley, BKAA president, at 845-754-0743–but in essence it asserts that the Mamakating Planning Board, having documented significant adverse environmental impacts that the project would cause to both groundwater resources and the scenic resources of the area, then failed to adopt specific mitigation measures. Instead it abdicated the development and imposition of the required mitigation measures to another agency or to a later, unspecified time.
But SEQRA does not permit any agency to defer the development of mitigation measures. SEQRA regulations require that any agency undertaking or approving an action that was the subject of an EIS must adopt certain “Findings.” These include the specific finding “that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable.” Furthermore, agencies must exercise their independent judgment and may not abdicate or defer SEQRA’s decision-making requirements to another
agency.
If this important principle is not affirmed the entire SEQRA process could be compromised. For this reason FOS has joined with BKAA in urging the court to hear its appeal.
UPDATE: In early June 2008, BKAA’s appeal was denied. However, Yukugumi Maitaki Manufacturing has recently modified their plans and part of the approval process may begin anew. See: Mid-Huson News article
Save the Lakes
Friends of the Shawangunks has agreed to act as fiscal agent for Save the Lakes, a group working to stop the inappropriate development of Williams Lake Resort in Rosendale. To make a tax-deductible donation to Save the Lakes, send us a check made out to Friends of the Shawangunks, with “Save the Lakes” in the memo space. Or you can donate on-line, putting “Save the Lakes” in the “Designate my donation” box.
A Letter to the Editor of the New Paltz Times
As President of the Friends of the Shawangunks, I am writing in regard to the November 1 article by Ms. Anne Pyburn, who sought to make our Article 78 lawsuit against the Gardiner Zoning Board of Appeals (ZBA) a suit against a particular property owner, when it really is about the ZBA’s failure to do its job properly.
The Wustraus just happen to be the people who asked the ZBA for variances that should never have been granted. The Wustraus were named as additional parties to the lawsuit only because the law required us to do so. Failure to name them would likely have resulted in the suit being thrown out.
If your reporter had bothered to contact me or any board member, she would have learned that it was by a 3-2 vote (not 4-1 as she implied) that the ZBA attempted to, in effect, write new code for the ridge. The Gardiner Town Board adopted the Shawangunk Ridge Protection (SRP) Regulations in 2006 after a lengthy process that involved considerable public input and compromise. A bare majority of the ZBA has seen fit to ignore the regulations’ findings that “protection of the scenic character and ecological integrity of the Shawangunk Ridge are important to maintaining rural character, a sense of place, and scenic landscapes,
all of which contribute to the Town’s quality of life and its attractiveness for tourism and for residential and commercial development.”
The Wustraus have access to their property via a right of way, but want to construct a driveway. Because of the steepness of the terrain they needed not one, but four, variances to the SRP Regulations: 1) the proposed driveway was 3,130 feet long, but the code sets a limit of 2,500 feet; 2) the SRP regulations prohibit construction of more than 150 feet of driveway on slopes of between 20 percent and 30 percent, but the Wustraus’ proposal called for 1,031 feet of driveway on such slopes; 3) the proposal also called for construction of 200 feet on slopes greater than 30 percent, although the regulations prohibit construction on slopes of more than 30 percent under any circumstance; 4) the grading and cutting required was well in excess of the 8-foot-wide limitation of the SRP regulations. By allowing the variances, the ZBA simply made the SRP regulations meaningless.
Regarding the comment from the family that they had no intention of building a house at the end of their proposed driveway - the plans that they presented to the ZBA for its consideration showed a house site. Also the Wustraus verbally expressed their intention to build a house there. Because of these plans, clearly expressed to the ZBA, we believe that the ZBA was required under the State Environmental Quality Review Act (SEQRA) to conduct an environmental review of both the proposed driveway and the house at the same time. That the ZBA failed to do so, despite the plans submitted, was a clear violation of SEQRA. The
Wustraus cannot correct the ZBA’s failure by now claiming that they do not intend to build a house.
H. Neil Zimmerman, President
Friends of the Shawangunks