Back to PRESS PAGE       (source) NEW SAUGERTIES TIMES August 16, 2001 (p1) by Vernon Benjamin

BLASTING ZONE
Quarry application faces zoning review;
Town moves to ban the use altogether from residential zones

    The town of Saugerties zoning board of appeals (ZBA) has set a public hearing for September 10 at 7pm at the senior center on Market Street on a complaint over whether proper procedure was followed in referring the Shott Rock Inc. quarry application to the town planning board. Meanwhile, the town board was expected to act Wednesday night on a motion to set two public hearings on a local law that would abolish mining in residential zones and limit the practice to industrial zones by right and highway business zones by special permit.
   The two actions, independent of each other, affect an attempt to extract some 2.8 million tons of stone over a 28-year period from a section of Hodge Bergs in Veteran. The site is behind the Veteran Pork Store at the end of Morse Road.
    The application by Westchester County developer Gilbert Shott has antagonized local residents and galvanized much of the community in opposition. A new citizen action organization, with the acronym CARES, formed to fight the application, started the ZBA action that has resulted in the public hearing.
    The town board action was begun by supervisor Greg Helsmoortel in response to the prospect of a quarry operation in that area. Hearings were set for 6pm on both September 20 and October 11 in the senior center. The idea is to authorize mining only in industrial zones subject to the need for site-plan approval if certain limits are exceeded, and in highway business districts under a special permit. Shott Rock Inc. is seeking a special permit to operate its mine in a residential (R-2) zone.
    As procedural arguments continue on how the Shott Rock Inc. application may proceed within the planning board, substantial information is emerging on why is may be an ill-advised venture. Problems of compliance with the town's comprehensive plan and on-going zoning audit were described two weeks ago. Now, other possible reasons for rejection are emerging.
    Town of Saugerties highway superintendent Alfonse Ferrara weighed in on July 26 with a letter to planning board chairman William Creen that Morse Road was "not of sufficient width and construction" needed for the heavy truck traffic associated with the quarry operation. The quarry will require between nine and 45 trucks per day entering and leaving the site over the 20-foot town road.
    A village official has also questioned whether the two water mains from the Blue Mountain Reservoir into the village are sufficiently protected for such heavy truck traffic. The mains, which supply Barclay Heights, Glasco and Malden as well as the village, go under Morse Road behind the Veteran Pork Store.
    Questions have also arisen over a supposed 50-foot right-of-way claimed by the applicant in the application submitted to the planning board. The right-of-way is across lands that Shott has access to, but the size of the right-of-way is a matter of dispute.
    Bob O'Leary, one of the residents fighting the application, said Gilbert Shott told him he did not know of the origin of that right-of-way information. It was included on the maps done by Richard Praetorius, the local engineer hired by the applicant. No documentation of the right-of-way was included in the material given to the town.
    Some study has also been undertaken on case law and the intent of the state legislature in enacting its mining industry laws, although the legislature has been generous to the industry. The state's "declaration of policy" fosters and encourages the industry even to the extent of limiting local government's special-use permit areas to local roads and enforcement of reclamation conditions. The state's careful protection of the industry has led the town into reconsidering its regulation of this activity under special-use permit.
    In a case involving the town of Kinderhook, planners were successful in denying an application for a gravel operation on the basis of traffic congestion and safety hazards associated with the truck traffic. In East Greenbush, a zoning board's denial of a special-use permit to mine gravel on n land zoned agriculture-residential was found to be legitimate, based on the truck traffic and statements from local brokers about how property values would be diminished; the town's traffic study shower the truck traffic would "compromise public safety."
    In the East Greenbush case, as well as in a case in Ballston, the courts affirmed that there was no entitlement to a special-use permit, as some planners in Saugerties may fear. Concerns were raised informally by planning board members that it may be difficult to keep Shott Rock out because of the state's protection of extractive industries.
    Despite, or perhaps as a result of the protections it offers the industry, the state of New York has not had a shining track record when it comes to extractive industries in Saugerties. The Department of Environmental Conservation regulated Northeast Solite Corporation poorly in the early 1980's, when the company burned hazardous wastes in its aggregate kilns. That action ended when an administrative law judge agreed with assemblyman Maurice Hinchey's contention that the company had to abide by an equipment standard similar to cement plants, not just an emissions standard, which was met intermittently at best anyway.
    In a similar example of the state's neglect, a DEC deputy commissioner had to file a complaint to get the agency to act on a reclamation plan for William Parr's sand operation on Veteran hill just south of the proposed Shott Rock quarry. Parr was acting well within mining regulations in conducting his business. A similar operation has been conducted on the back side of that hill as well.
    There are a total of seven extractive operations in Saugerties now. The Parr reclamation plan, even though negotiated more than ten years ago, has not resulted in any appreciable change in the scar on that hill.
    The rising tide of anger emerging among residents over the extent to which Gilbert Shott already took stone out of the Veteran site is another emerging issue. Here again the concerns are due in large part to a lack of DEC oversight. Photographs exist depicting the site in 1983 and 1974, and in each case the quarry area is clearly shown as a forest. Today, it is a bald-faced hill. Residents said part of a huge ledge was taken out by the miner. DEC regulations allow the extraction of 1000 tons (750 cubic yards) a year, but this appeared to be a much greater amount.
    The department also did nothing after it determined that Shott had altered or destroyed part of a listed wetland on the hill.
    As with the Northeast Solite case, DEC has no enforcement personnel out in the field. The agency responds, sometimes in tardy fashion, only to vociferous complaints. Companies can pretty much do as they please until somebody shows up, and then delaying tactics can result in even more work being done without regulatory oversight. Once a permit is given, the applicant has the 'primary responsibility' of complying with the law. But sometimes no one is watching.
    Towns have limited powers in controlling mines. They cannot, for instance, ban one style of quarrying or mining and allow others. A decision like that came back to haunt the town of Philipstown in 1998, when an appellate court decided that the mined land reclamation law pre-empted a local law declaring soil extraction operations to be a prohibited use. But in that case, the town only regulated specific aspects of soil extractions, not mining as a whole, which the law says can be prohibited. Saugerties could not, for instance, impose setbacks, screening, dust, hours of operation, blasting, rock crushing or other restrictions.
    The zoning board meeting on the Shott Rock case was called when CARES chairman Pat Fitzsimmons filed an objection to the building inspector's decision to send the Shott Rock mining application to the planning board for review. That action would have kicked off a 45-day time frame within which the planners would have had to set a public hearing. CARES attorney March Gallagher argued that the action was untimely because the New York State Department of Environmental Conservation had not even made a decision on lead agency status for the environmental review of the mining application.
    How could the planners act on a special-use permit if they did not even know that the project was environmentally sound? At the zoning meeting, Gallagher made a presentation over the objection of Shott Rock attorney Michael Moriello. Moriello was prohibited from responding to her statement because, as ZBA chair Joe Roberti said, it was not a public hearing, just an opportunity for the complainant to explain their case.
    Moriello was not aware that a second appeal had been filed with the zoning board by CARES. That was a request for an interpretation of planning board chairman William Creen's letter to the DEC declining the town's interest in lead-agency status. The action was taken without formal planning board approval.
    Town attorney George Redder was present at the ZBA meeting and later met with the zoning board in executive session on another matter. He did not comment on the Shott Rock application, but he had sent a letter to the ZBA expressing the opinion that the CARES objection was "not ripe" in the sense that the planning board process was not completed. CARES was prepared to argue, however, that it was not the planning board action they objected to, but the building inspector's.
     Roberti and fellow zoning board of appeals members Henry Rua, James Whalen, Jeanne Goldberg and Dan Ellsworth received the controversy for the first time with these filings. Roberti said their role was to look at the issue solely in terms of procedures to determine whether the objections were valid.
    Meanwhile, the DEC also has changed course by notifying the parties that it has not made a decision yet on the issue of who directs the application investigation from the environmental viewpoint. It was not clear if a letter had gone to the DEC from Creen withdrawing the town's lack of interest in becoming lead agency.
    None of the parties expected the town ultimately to be lead agency in the environmental quality review required under state law. Quarry and mining applications are unique among SEQRA cases in being subject to the DEC's lead agency position, not a local body's. The precedent is not exactly written in stone, however. Kinderhook conducted the SEQRA review in its case, even though it ultimately had to give back $6,700 of the $7,000 it charged the applicant for engineering services.
    Last month, deputy planning board chairman Robert Brandt stated that the town "lacks the resources" to be lead agency in the quarry application review. The town of Saugerties, like any deep-pocket municipality, can carry out any investigation it wants. But if it came down to a dispute with the DEC, it would be the DEC commissioner in Albany who ultimately makes the decision on who will lead the review.
    In filing its request with the ZBA, CARES was reacting to an action by the building inspector, Paul Andreassen. Andreassen forwarded the Shott Rock file to the planners with the statement that it was complete for the purposes of review. In regulatory parlance, that does not necessarily mean completely complete, just complete enough for the review to begin. The action actually sets off a time clock that requires that the planners act within certain time frames.
    Andreassen's action was followed by Creen's action declining lead-agency status and a second action inviting Gilbert Shott and his representatives to a planning board meeting to present their case. When more than 200 people also turned out, Creen said it was not the formal public hearing required by law, just an informational presentation for the planners. Nevertheless, the combination of actions set off CARES members, who believed that the clock was now ticking on the planning board's review. Creen did not appear to understand some of the technical issues associated with the process.
    At any rate, Fitzsimmons' action in filing the request for an interpretation with the ZBA stalled the planning review. Andreassen, known for his desire to move matters along in a very busy office, defended his action by stating that any planning board decision could be made contingent upon any other approvals. That may ultimately be the ZBA's belief as well, but in the meantime the citizens got what they wanted: a delay.
    The Shott Rock application, although now delayed, has had one immediate effect, at any rate.
    The citizens' group has mobilized to an extraordinary extent. Its website, designed by Ed Doyle, has already had more than 1400 "hits" and is being seen as a model for similar citizen-action information centers elsewhere. Eventually it will include all the scientific data associated with the application as well as all relevant town and state documents.
    If Creen relents on his denial of CARES' wish to videotape meetings, it will also include digital recordings of the actual events, turning the Shott Rock Inc. application process into a veritable reality-television style event.
    The citizens are also gathering information on establishing a historic district in Veteran, or Toodlum, as it is known in a folkish way. There are several notable structures within 2,000 feet of the proposed quarry, including the original post office for Veteran and an old stone house once used as a station for the underground railroad.
Vernon Benjamin

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