James Bryan Bacon
ATTORNEY & COUNSELLOR AT LAW
P.O Box 575
New Paltz, New York 12561
--------
Telephone (845) 255-2026
Facsimile (845) 255-8925
September
25, 2006
Mr. Herb Schech, Chairman
Town of Patterson Planning Board
P.O. Box 470
1142 Route 311
Patterson, New York 12563
Re: Patterson
Crossing
Dear Mr. Chairman and Members of
the Board:
The Croton Watershed
Clean Water Coalition, Inc. (CWCWC) and the Putnam County Coalition to Preserve
Open Space (PCCPOS), submit the following comments on the above project’s Draft
Environmental Impact Statement (DEIS) as proposed by Patterson Crossing Realty,
LLC (Applicant) to supplement the comments made at the project’s public
hearing.
We find that the
project is dramatically out of scale with the surrounding area and that the
DEIS is deficient in failing to include sufficient information of the project's
traffic, stormwater, hydrogeological, rare and endangered species impacts and
fails to adequately assess the project's conformance with the Town Codes of
Patterson and Kent. Therefore, a Supplemental Environmental Impact Statement
is necessary and required under SEQRA.
SEQRA PROCESS -
STATE OF INFORMATION IN EIS
CWCWC and PCCPOS have
objected for years to the boilerplate information and responses typically given
in Environmental Impact Statements prepared by the Applicant’s consultant.
The New York State
Supreme Court Appellate Division’s landmark ruling on August 8, 2006 in Matter
of Riverkeeper, Inc. v Planning Bd. of Town of Southeast 2006 N.Y. Slip
Op. 06160 proves that a lead agency’s acceptance of
boilerplate information and blanket reliance on post-SEQRA agency review by the
New York City Department of Environmental Protection (DEP), New York State
Department of Environmental Conservation (DEC), the Army Corps of Engineers
(ACOE) violates SEQRA.
The Appellate Court reversed the Westchester County Supreme
Court’s determination which had upheld the Town of Southeast’s decision that no
Supplemental EIS (SEIS) was necessary for the 104-unit Meadows at Deans
Corners housing development.
In light of this decision, for Patterson
Crossing, Tim Miller Associates should describe in detail in each category of
potential impacts, i.e., including traffic, stormwater, endangered species and
hydrogeology, how the developer will avoid the Meadows scenario, describing the
elements of the Court’s determination that are particular to the Croton
Watershed, such as phosphorus impacts and preserving the integrity of the
watershed.
Tim Miller Associates former responses concerning these
issues such as provided in EISs for projects such as Hillcrest Commons in the
Town of Carmel no longer suffice. The lead agency cannot escape its review
obligations by relying on statements by Tim Miller Associates such as:
“The compliance with
agency standards assures that no adverse impact will occur.” (Hillcrest Commons
FEIS. at 11-4).
For years CWCWC has argued that Miller’s
interpretation of the law was wrong citing such cases as Golten Marine Co.
v. State Dept. of Envtl. Conservation, 193 A.D.2d 742, 743 (2nd Dept. 1993) which states:
“The fact that other agencies may have had an
independent obligation to analyze the potential impacts of the facility had no
bearing on [the lead agency’s] own obligation to analyze the listed areas of
environmental concern.”
More is required in an EIS than simply repeating a comment
made on the DEIS and responding “so noted,” or providing a non-responsive
answer.
Indeed: Similarly, in comparing SEQRA to federal law the Court
stated:
“[T]he
requirement of a detailed statement helps insure the integrity of the process
of decision by precluding stubborn
problems or serious criticism from being swept under the
rug. A conclusory statement ‘unsupported by empirical or experimental data, scientific
authorities, or explanatory information of any kind’ not only fails to
crystallize issues * * * but ‘affords no basis for a comparison of the problems
involved with the proposed project and the difficulties involved in the
alternatives.’ Monroe County Conservation Council v. Volpe,
472 F.2d 693, 697 (2d Cir. 1972). Moreover, where comments from responsible
experts or sister agencies disclose new or conflicting data or opinions that
cause concern that the agency may not have fully evaluated the project and its
alternatives, these comments may not simply be ignored. There must be good
faith, reasoned analysis in response.” (Bliek v. Town of Webster, 104 Misc.2d 852, 862, 863 (Sup. Ct. Monroe Co. 1980)).
Like the Meadows case, Patterson Crossing presents a host of
complex and significant impacts many of which appear to be insurmountable.
Based on the review of the DEIS by responsible experts such
as John Canning, P.E., David Clouser, P.E., hydrogeologist John Conrad and
Marian Rose, Ph.D., an SEIS is required to cure the omissions and inaccuracy of
data supplied in the DEIS.
SEQRA’s MANDATE
SEQRA’s enabling
legislation requires much from a lead agency stating:
“Agencies shall use
all practicable means to realize the policies and goals set forth in this
article, and shall act and choose alternatives which, consistent with social,
economic and other essential considerations, to the maximum extent practicable,
minimize or avoid adverse environmental effects, including effects revealed in
the environmental impact statement process.” (E.C.L. §8-0109(1)).
STORMWATER AND
PHOSPHORUS IMPACTS
In January 1997,
the EPA in partnership with the State of New York, the City of New York, Putnam County, Riverkeeper and other parties forged the New York City Watershed (“MOA”) to
protect and rehabilitate reservoirs within the Croton.
The 1997
Memorandum of Agreement (MOA) initiated NYC Watershed protection and
partnership programs and detailed other watershed protection provisions
including establishing more stringent Watershed Rules and Regulations
(WR&R).
The Town of Patterson joined as a party to the MOA agreeing “to be bound by the terms and conditions
thereto” and as a signatory agreed that:
“[A]n adequate
supply of clean and healthful drinking water is vital to the health and social
and economic well being of the People of the State of New York; and…
…it is the intention
of the Parties to assure the continued adequate supply of exceptional quality
drinking water for the eight million residents of the City of New York and the
one million New York State residents outside the City who depend upon the New
York City drinking water supply system; and…
…the New York City water supply is an extremely valuable natural resource that must be
protected in a comprehensive manner; and…
…it is the intention
of the Parties to enter into a new era of partnership to cooperate in the
development and implementation of a Watershed protection program that maintains
and enhances the quality of the New York City drinking water supply system;
and…
…the Parties now
enter into legally enforceable commitments, as set forth in this Agreement, on
issues related to the Watershed protection program, including the Watershed
rules and regulations… and…
…the Parties have
agreed to act in good faith and to take all necessary and appropriate actions,
in cooperation with one another, to effect the purposes of this Agreement.”
To implement these
goals, Patterson agreed among others things to:
A)
Participate in the development of a Comprehensive Croton System Water
Quality Protection Plan (“Croton Plan”) pursuant to §18-82 of the WR&R
jointly with DEP and Putnam County, and;
B)
Comply with the CWA by following EPA’s TMDL developed by DEP and DEC
requiring reductions in the phosphorus pollutant loadings of downstream
reservoirs.
In implementing the
TMDL program the WR&R stated that:
“USEPA will provide
technical support in the development of TMDLs and review and approve submitted
TMDLs. The water quality management goal of the TMDL program is to assure that
the total phosphorus loading from point and non-point sources into a reservoir
does not cause a contravention of the water quality standard for phosphorus.” (Id. and MOA at 162).
In July 2000, the
Attorney General urged EPA to adopt TMDL standards that would reverse
phosphorus contamination and issued a report targeting the pollutant for
immediate reduction “Reducing Harmful Phosphorus
Pollution in the New York City Reservoirs through the Clean Water Acts Total
Maximum Daily Load Requirements: A Case-Study of the New Croton Reservoir and
Recommendation to EPA” stating:
“One of the most
important functions of my office is to protect and improve drinking water
quality for the millions of New Yorkers who consume water from the New York City watershed,” said Spitzer. “It is imperative that phosphorus be
effectively controlled to prevent a biological chain reaction from
contaminating our drinking water.” (Emphasis added).
Similarly, the
WR&R requires:
“When any
activity… is proposed to be undertaken in a phosphorus restricted basin, the
stormwater pollution prevention plan shall include an analysis of phosphorus
runoff, before and after the land disturbance activity.”
(WR&R §18-39(c)(1)).
DEC’s regulations further provide:
“[N]o SPDES or other permit shall be issued authorizing any
such discharge:
(e) When the conditions of the permit do not provide for
compliance with the applicable requirements of the CWA, or regulations
promulgated under the CWA; and…
…The provisions of each issued SPDES permit shall ensure
compliance with… more stringent limitations, including those:
(ii) necessary to implement a total maximum daily
load/wasteload allocation/load allocation established pursuant to Section
303(d) of the Act and 40 CFR Part 130.7.” (6 NYCRR §§750-1.3(e),
1.11(a)(5)(ii)).
In calculating phosphorus loadings, in a 2000 report, EPA recommended that the most
conservative measures available be used stating:
“Consistent with New York State's General Permit, NYCDEP's guidance allows the applicant to cho[o]se from a
number of different methods in making calculations. Model selection depends
upon a number of variables including the size of the land disturbance and the
amount of input data. However, it is important that estimations include as much
site-specific data as possible and that the most conservative measures are
utilized to reduce stormwater loadings.
Regardless of which
model is used to develop SPPPs, the result must be BMPs that are designed,
built and maintained, consistent with Section 18-39 of the WR&R with an
overall goal of no net increase in loadings over pre-existing construction
conditions. EPA recommends that NYCDEP ensure that SPPPs include as much
site-specific data as possible and that the most conservative measures are
utilized to reduce stormwater loadings." (“Assessing New York City’s
Watershed Protection Program” (May 2000), pg. 190, 192).
1.
Pollutant Loading -
Pre-Development Levels
DEP studies conducted on the Croton watershed in Putnam County showing baseline phosphorus export levels of .0446 pounds per acre per year
for forested areas.
However, rather than using .0446, the Applicant used .10 lbs. per acre per year relying upon a 1992 DEC publication. The DEC 1992 predevelopment phosphorus export levels are not specific to the Croton Watershed and that publication is no longer applicable. Indeed, according to Watershed Inspector General James Tierney, it is “outdated and defunct.”
Consequently,
the Applicant’s calculations are incorrect by a factor of 2.24.
Therefore, for
the predevelopment existing conditions, less than half as much phosphorus is
exported from the site as compared with the Applicant's estimates.
Tim Miller Associates has previously argued that
because DEP has not formally adopted the figures in its stormwater review
procedures, the .0446 figure is not relevant to the lead agency’s review
obligations. This reasoning is wrong.
The .0446 figure was formally adopted by DEP in
2002 as accurate and was relied upon by DEP, EPA and DEC in developing the
baseline data for the TMDL calculations for the Croton Watershed’s reservoirs.
If the entire TMDL program developed by DEP, EPA
and DEC is founded on the .0446 figure, then it is inappropriate for the lead
agency to use any other figure.
Furthermore, the EPA recommended that the most
conservative approach available be used in modeling phosphorus impacts. Was EPA
wrong? Is the .0446 figure more conservative than the .10 figure from 1992,
which James Tierney stated was outdated and defunct?
The Applicant should answer these questions
directly, in consultation with Mr. Tierney, especially in light of the
Appellate Court’s ruling in Matter of Riverkeeper.
As SEQRA further
requires that “to the maximum extent practicable” the lead agency “minimize or
avoid adverse environmental effects” of a project, the lead agency must
demonstrate that a project will not only maintain phosphorus pollutant loadings
at pre-development levels, but actually reduce those levels pursuant to the
TMDL program. (See “Non-Point Source Implementation of the Phase II TMDLs”
(April 2001, Table 4.1 pg. 15)).
TRAFFIC
Based on the
project's size of 434,050 sq. ft., the project will generate up to 23,000
vehicle trips on a Saturday on its access drive. (Comments of Traffic Engineer
John Canning citing ITE standards). On average that is 3.5 to 5.3 times more
the daily traffic on Rt. 311. (Town's Comprehensive Plan at pg. 15).
An average weekday would bring
17,600 vehicle trips (8,800 cars) on average, every day during the week - more
than double the traffic counts on Rt. 311 identified in the Comprehensive Plan.
To place the magnitude of the
impact in context, it would be as if the number of families in both Towns
increased by 36% and all drove to the project site every day, on top of the
existing traffic.
Saturday traffic would be a worse
nightmare - It would be as if every family in both Towns increased by 79% and
all drove back and forth to the project site in addition to all the other cars
and trucks on Rt. 311 on a Saturday.
This cannot occur. Traffic would
be brought to a standstill and the rural character of the community would be
destroyed forever. The net effect would be as if all of the families in two
additional Towns the size of Patterson and Kent decided to drive their car
every day into Kent and Patterson severely disrupting our quality of life and
the existing transportation network.
What multiple of daily traffic is
deemed acceptable? Is there a multiple that would be unacceptable? Is doubling
the existing traffic too much? What about increasing traffic by five-fold as
here? Is that enough? Is ten times more traffic enough? Can any further
development occur following Patterson Crossing?
SEWAGE
The Town Code prohibits using a residential
district for purely commercial purpose. is this use
Consider sewage - requires 8.7 acre sewage field, no where
in permitted, especially in a residential zone.
The Applicant
plans to cut, blast and fill a total of 566,500 c.yds. of soil and rock, enough
to fill a football field with 318 feet of soil and rock. Where are the
Applicant's details as to the site's hydrology? Why don't the soil boring maps
show testing in the 8.7 acre septic field? What empirical evidence is cited to
prove the seasonal depth of the water table?
RARE AND ENDANGERED SPECIES
Tim Miller
Associates has not demonstrated the expertise to identify endangered and rare
species. Indeed, on the Hillcrest Commons site in Carmel, Hudsonia positively
identified 24 locations of the endangered species Galium Concinnum or
Shining Bedstraw. These locations were not identified by Tim Miller Associates.
This issue
cannot be ignored. In Integrated Waste Systems Inc., (Supplemental
Ruling July 24, 1995 DEC Project No. 9-0438-00004/00003-9), DEC ruled that
plants listed as threatened deserve adequate review and protection measures by
a lead agency. In referring to the 6 N.Y.C.R.R. §193.3(b) threatened plant
species hypericum prolificum, DEC ruled:
"The plant's
presence does, however, warrant mitigation measures to minimize any potential
adverse impacts on the threatened plant species and its critical habitat, even
if those adverse impacts are caused by the owner of the land on which the
plants occur." (http://www.dec.state.ny.us/website/ohms/decis/integrsr.htm).
The lead agency should require the
applicant to conduct appropriate studies as directed by Hudsonia's Biodiversity
Assessment Manual and require that qualified personnel conduct the searches,
such as a Certified Biologist.
NOISE
CWCWC's
preliminary findings are that the neighbors will suffer from undue noise
impacts from the project which will not be adequately mitigated by the proposed
mitigation measures. The details of these findings are underway and will be
submitted at their earliest availability.
ECONOMICS
Concerning the
DEIS's claim of 16 million in sales tax, the DEIS admits that "it is not
known what the actual net increase may be as the spending patterns of persons
in the trade area of the proposed shopping center are undocumented." (DEIS
3-5).
Despite being
unknown, the DEIS states up to 16 million dollars in sales tax is
"projected." How can it be projected when it is entirely unknown?
The answer is that it cannot. There is no basis for the DEIS's reckless claim
which should be stricken from the record. The DEIS admits it has no basis for
such a claim.
Also the DEIS
examined a trade area radius of only 3 miles, conveniently avoiding analysis
of Brewster Highlands which is 3.5 miles away. How much of the income derived
from the project will simply be displaced dollars? What will it do to existing
businesses? How can the DEIS possibly indicate that if the project creates 516
jobs, no additional people will wind up living in Kent or Patterson and not a
single additional schoolchild will result. If that is not ludicrous, provide
the data.
Where are the
people going to come from seeking these $15-20,000 dollar jobs? The DEIS does
not say. How is that going to impact traffic patterns? Again the DEIS is
silent. They are not likely to come from Kent or Patterson where unemployment
is very low and the median household income is between $66 and 72,000 dollars.
ARCHAEOLOGICAL IMPACTS
New York State
Office of Parks, Recreation and Historic Preservation recently adopted new
standards. The Applicant must examine whether additional studies are required
in light of the new standards.
ZONING
The project will require a number of use and
area variances by Patterson ZBA as follows:
·
The Zoning Code states for a Regional Retail Center that "Access shall be only from a State or County Road." The access point into
the Town of Patterson is from an adjacent parcel in the Town of Kent. Therefore, a use variance is required. (§154-11(A)).
·
The access drive is 3,500 feet long - approximately 2,900 feet is
in the Town of Patterson. Whether defined as a street or driveway it needs an
area variance. The Town Code limits cul-de-sacs to 1,500 feet (§138-32(F) and
limits driveway lengths to 2000 feet. (§138-31(A)).
·
A use variance is also required because the Town Code prohibits
using 8.7 acres of R-4 zoned property as an accessory use to service a
commercial project. A commercial sewage field is not a residential use. This
use is not allowable under the Code's Permitted Principal and Accessory Uses
for the R-4 District. (§154-26 and 27).
As this is a
coordinated review, the lead agency must consider and discuss the standards for
granting use variances. Where is the economic hardship in dollars and cents?
What are the real property value impacts to adjoining and nearby neighbors.
Studies indicate that the creation of the currently proposed project will have
devastating impacts to the Town's infrastructure and community character. (See
Attached Riverkeeper Report).
How does the project conform with
the Town's Special Use Permit Standards and Guidelines (§154-93(A)(2)), which
state:
The ZBA
determination "shall be made in accordance with the… requirements of this
chapter including the need to lessen congestion in the streets… to promote
health and general welfare… to prevent overcrowding of land… to facilitate
adequate provisions of transportation… [and] sewerage."
Does increasing the
traffic by five-fold "lessen congestion in the streets" and promote
the public welfare?
PATTERSON COMPREHENSIVE PLAN
The Town of Patterson Comprehensive Plan and Zoning Code do not envision a project anywhere near the
magnitude of this project.
The Zoning Code
identifies a Regional Retail Center starting at 75,000 sq. ft. This project at
434,050 sq. ft. is 5.7 times the Zoning Code's figure, far beyond the size
contemplated by the Code.
SEQRA specifically
allows a lead agency to require examination of “scale or magnitude”
alternatives. (6 N.Y.C.R.R. §617.9(b)(5)(v)(c)).
Courts have held that
lead agencies have acted within their SEQRA authority to require consideration
of reduced scale alternatives and accept smaller versions of applicants’
preferred proposals discussed in the EIS. (See Sprint Spectrum L.P. v.
Willroth, 996 F.Supp. 253 (W.D.N.Y. 1998) where single cellular tower
chosen rather than alternative of three towers; and see Coalition for
Responsible Planning v. Koch, 148 A.D.2d 230, (1st Dept. 1989) leave
to appeal denied, 75 N.Y.2d 704 (1990) where the SEQRA review resulted in a
“detailed comparison of the environmental impacts of all four alternatives”
which included 500 fewer housing units than the developer’s preferred
alternative of 1001 units.
In fact, Courts have
struck down a DEIS that fails to consider reasonable smaller-sized projects.
(See for example Grape Hollow Residents’ Ass’n v. Beekman Planning Board,
No. 1986/284 (Sup. Ct. Dutchess Co. Oct. 16, 1986) where the subdivision’s
opponents preferred a smaller number of units).
Similarly, in Brookville
Taxpayers Ass’n, Inc. v. Town of Oyster Bay, N.Y.L.J., May 8, 1985 at 15,
col. 3 (Sup. Ct. Nassau Co.) the Court struck down the Town’s rezoning holding
that a reduced density alternative should not have been ignored as the
proponent had not shown that the reduced density alternative was “economically
unfeasible.” (See also In re Bonded Concrete, Inc. (DEC
Commissioner Decision, Apr. 9, 1984) where DEC denied an application for a sand
and gravel mine because “no attempt has been made to evaluate the feasibility
of alternative size or configurations of the areas on the Site to be mined.”)
The Board as
lead agency has the obligation to set forth a reasonable range of alternatives
and choose the alternative that minimizes the project's impacts to the maximum
extent practicable. Reasonable alternatives should be presented that comply in
all respects with the zoning of both Kent and Patterson.
In sum, the DEIS
is deficient and an SEIS is required. The project is out of scale with the
Towns of Kent and Patterson. Reduced scale alternatives that comply in all respects
with both Towns' Codes must be presented as under SEQRA it is the lead agency's
duty to act and choose among alternatives and mitigate to the maximum extent
practicable adverse environmental impacts. Given the project's present design,
those findings cannot be made.
CWCWC and PCCPOS
look forward to the continued review of this project which should include a
full SEIS and public scoping resulting in reduced scale alternatives and the
SEIS should include full and accurate information concerning the project's full
range of impacts while answering all of the issues raised by John Canning,
P.E., Hydrogeologist John Conrad, David Clouser, P.E., Marian Rose, Ph.D. and
this correspondence.
Sincerely,
James
Bacon
Attorney
for CWCWC and
PCCPOS
3- This information is contained in Table 2.2 on page 9 of the Phase II Report indicating that the export coefficient for forested land is 0.5 kilograms per hectare per year. A hectare is 2.4 acres. The accurate conversion is calculated by multiplying the lbs/acre/yr by 1.12 to obtain the kilograms per hectare.
4-See DEC publication "Reducing the Impact of Stormwater Runoff from New Development" (1992) pgs. 21 and 39 - forest data from "Northern Virginia".
