CWCWC

Brief Outline of Hillcrest Commons Development Proposal

Putnam County - The Town of Carmel Planning Board, as lead agency, has accepted a Draft Environmental Impact Statement on the proposed Hillcrest Commons. A public hearing on the Draft EIS will be held on Wednesday, July 6, 2005, at 7:30 p.m. at the Town of Carmel Town Hall, 60 McAlpin Avenue, Mahopac, NY. Written comments on the Draft EIS will be accepted by the contact person until not less than 30 days after the close of the public hearing. The action involves a subdivision, two Site Plan Applications and a Special Exception Use Permit for a total of 150 units of senior housing, and 60,000 square feet of office space on a total of 107.76 acres of land. The two Site Plans, involving 77.80 acres, will be reviewed simultaneously and considered a single project in the SEQRA review process. The project includes new roads and infrastructure with connections to municipal water and sanitary sewer service. The project is located in the vicinity of NYS Route 52, in the Town of Carmel, Town of Kent, Putnam County, New York.

Contact: Magnus F. Sjoberg, Town of Carmel Department of Planning, Town Hall, 60 McAlpin Road, Mahopac, NY 10541, phone: (845) 682-1500.

CWCWC comments on Hillcrest Commons

August 5, 2005
Town of Carmel Planning Board
60 McAlpin Avenue
Mahopac, NY 10541

Re: Hillcrest Commons

Honorable Members of the Planning Board,

The Croton Watershed Clean Water Coalition, Inc., (CWCWC) thanks you for this opportunity to submit comments regarding the above-captioned development.

These brief comments are in addition to the analyses being submitted on behalf of CWCWC and Putnam County Coalition to Preserve Open Space (PCCPOS) by Erik Kiviat, Ph.D. of Hudsonia Ltd. regarding the site’s Biodiversity Assessment; by Eugene J. Boesch, Ph.D., R.P.A. on the site’s cultural and archaeological resources; and comments by James B. Bacon, Esq., regarding legal and stormwater concerns.

CWCWC’s goal is to protect the Croton watershed and its reservoirs from further pollution, whether from stormwater runoff, sewage treatment plants; septics and other causes. The Croton system is a vital component of the larger New York City supply system that provides 9 million people, over half of New York State, with high quality, still unfiltered drinking water.

Regarding the Hillcrest Commons proposal, CWCWC is of the opinion that the estimates for reduction in phosphorus and other stormwater pollutants subsequent to development, are seriously under-estimated

As your Board is aware, pollution from development at Hillcrest Commons would be discharged, in part, into the Croton Falls Reservoir via Michael Brook. According to the joint NYS DEC and NYC DEP study (Nonpoint Source Implementation of the Phase II TMDLs, April 2001), the Croton Falls reservoir needs a reduction in phosphorus loading of 1947 lbs/year in order to come into compliance with the required phosphorus concentration of 15 micrograms/liter. The Croton Falls reservoir is a source reservoir whose waters, when needed in times of drought, are fed directly into the Delaware aqueduct, the major source of still unfiltered water for the NYC greater metropolitan area. It is a critically important reservoir. Unfortunately, the Town of Carmel is its major polluter. The Town contributes 85% of the phosphorus load that needs reducing, or 1659 lbs/year.

Clearly, any development within the Town of Carmel should be carefully designed so as to not increase the phosphorus load to the Croton Falls reservoir.

However, the results from the applicant’s submission are, at the very least, ambiguous. For example, the pre-development phosphorus load (P-load) from the site is given as 4.10 lbs/year. Summing up the post-development P-loads from the various sub-basins (1.0S; 1.1S; 1.2S; 3S; 2.0S; 2.1S; 2.2S; 2.3S), the applicant calculates the total phosphorus (TP) load as having a maximum of 5.00 lbs/year, and a minimum of 2.13 lbs/year. The final P-load could be anywhere within this large gap and be greater or less than the initial value.

After reviewing the figures on pollutant loads presented by the applicant, it is CWCWC’s opinion that Hillcrest Commons is likely to increase the phosphorus load to the reservoir for the following reasons.

(a) As pointed out by CWCWC attorney, James B. Bacon (and confirmed by David Clouser, P.E., in his comments on the Gateway/Fairways project) the more recent figures for the pre-development phosphorus loading rates (lbs/acre/year) are about half of those used by the applicant, that have now been superseded. Therefore, the applicant’s estimate of the phosphorus emanating from the undeveloped land is too high, and the reduction needed will be too low.

(b) The applicant assumes that Best Management Practices (BMPs) placed sequentially (as is the case for various of the sub-basins) will each, in turn, remove pollutants to the same degree as if they were stand-alone devices. This is an incorrect assumption. The reasons are clearly explained in Watershed Management for Potable Water Supply: Assessing the New York City Strategy, 2000 – The National Academy Press, pp 350-351 – see Attachment A) “Removal efficiencies vary with the changing composition of the stormwater as it passes through the multiple BMPs. For example, the first BMP may accomplish 50 percent removal of sediment and sediment-associated particles. But because larger particles are more efficiently removed, subsequent BMPs will be treating water enriched with finer particles, and removal efficiency will drop below 50 percent. At some point, the incremental removal is negligible, and the pollutant concentration from the final BMP reaches an irreducible concentration...”

It is customary, in an important watershed such as the Croton, to err on the side of caution and use the lowest pollutant removal value for any particular BMP. This procedure is further justified here because the applicant ignores the fact that the pollutant removal efficiencies of the BMPs diminishes, as explained in the preceding paragraph. If the lower removal values are used, the resulting P-load after development will exceed the pre-development load.

CWCWC concludes that it is doubtful whether the final P-load is indeed below the original load, and recommends that the applicant be required to perform more accurate calculations. The same remark also applies to the results for Biological Oxygen Demand (BOD) and Total Nitrogen (TN).

(c) The 12-acre 1.0S basin is largely, if not entirely, in the Michael Brook watershed. Ten acres out of the twelve are destined to be either commercial or townhouses. The result will be 83% imperviousness. According to Watershed Management for Potable Water Supply: Assessing the New York City Strategy, 2000 – The National Academy Press, Figure 9-3, page 419 (see Attachment B), beyond 45% imperviousness no combination of BMPs is capable of reducing the level of phosphorus below its initial level. Figure 9-3 shows that even the most efficient (BMP-Hi curve) BMPs are incapable of reducing the P-load in stormwater runoff below its pre-development levels. With 83% imperviousness, CWCWC questions the applicant’s conclusion that the P-load will be reduced. Again, we urge that the calculations be reformulated.

As the operator of a small, regulated MS4 (Municipal Separate Storm Sewer System), the Town of Carmel must comply with the six MS4 “minimum control measures” (EPA Storm Water Phase II Final Rule, Fact Sheet 2.), in particular

Measure #4 – Construction Site Stormwater Runoff Control that applies to construction activities that result in land disturbance of one acre or more, and Measure #5 – Post-Construction Stormwater Management.

Measure #4 stipulates: “An MS4 must, at a minimum, develop, implement and enforce a program to reduce pollutants in any stormwater runoff to the small MS4 from construction activities that result in a land disturbance larger or equal to one acre.”

Measure #5 stipulates: “An MS4 must, at a minimum, develop. Implement and enforce a program to address stormwater runoff from new development and redevelopment projects that disturb one acre or more.”

Given these regulations, the Town of Carmel has the power and the duty to protect the watershed and its reservoirs that fall within its jurisdiction.

Respectfully submitted,
Marian H. Rose, Ph.D.
President, CWCWC

Preliminary Biodiversity Assessment, Proposed Hillcrest Commons
Subdivision Site, Towns of Carmel and Kent, Putnam County, New York

Erik Kiviat, PhD
Tanessa Hartwig, MS
Hudsonia Ltd.
P.O. Box 5000, Annandale NY 12504

Report to James Bacon, Esq. and Croton Watershed Clean Water Coalition
29 July 2005

Biodiversity, or the variety of life in nature, is critically important to human society. Many of the native species of plants, animals, and other organisms which constitute biodiversity in the Hudson Valley are under threat of habitat loss and degradation, road mortality, collecting, the invasion of introduced plants and animals following disturbance to soil and vegetation, and other impacts of land development. Assessing the biodiversity of a proposed development site and its surroundings is necessary to allow reduction of these and other environmental impacts.

At the request of James Bacon, Esq., and the Croton Watershed Clean Water Coalition, Hudsonia conducted a preliminary biodiversity assessment of the proposed Hillcrest Commons development site in the towns of Carmel and Kent, Putnam County, New York. The site is on the east side of Route 52, with the northwestern corner of the site across Route 52 from Dykemans Road and near the Kent-Carmel town line. On 12 July 2005, Kiviat visited the site (5 hours), and on 24 July 2005, Hartwig and a field assistant visited the site (8 hours). Both days were hot and humid with minimal wind or precipitation during the field work.We reviewed portions of the Draft Environmental Impact Statement (DEIS) and studied topographic and soils maps and aerial photographs. We used our field observations, our knowledge of biodiversity and habitats in the region (Kiviat and Stevens 2001 and unpublished data), and other information to assess the likelihood that animal species listed in New York State as Endangered, Threatened, or Special Concern, plants listed by the New York Natural Heritage Program as S1, S2, or S3, or biota considered regionally-rare would be present on or near the Hillcrest Commons site. We paid special attention to shining bedstraw (Galium concinnum), an endangered plant reported ambiguously in the DEIS. This report summarizes our observations and preliminary assessment, and offers comments on some potential impacts of the proposed development on the biodiversity of the site.

Hudsonia Ltd. is a non-advocacy scientific research institute, and does not support or oppose development projects. Rather we make scientific observations and collect data from the field, literature, and other sources, identify sensitive habitats and species, and make recommendations concerning reduction of development impacts.

Results and Discussion

Wetlands

We are aware of two wetlands: Wetland A on the northwestern corner of the site, and Wetland B in the southwestern areas of the site. A large portion of Wetland A lies between the north end of the shopping plaza parking area and the proposed entrance road location at the northwestern corner of the site; maps in the DEIS show that portions of this wetland are offsite. However, the offsite portions of the wetland are currently subject to impacts from the shopping plaza and will be subject to impacts from the proposed Hillcrest Commons entrance road, thus need to be considered in the SEQRA review.

Nmbered flags indicate that wetlands A and B were delineated by the applicant. Portions of Wetland B may have been omitted from the delineation. If not already done, the applicant's wetland delineations should be checked by the U.S. Army Corps of Engineers, corrected as necessary, then surveyed onto a map. This will allow the Planning Board and the public to understand the extent and locations of the wetlands and the impacts of the proposed development project.

Crest and Ledge Habitat

There is an extensive area of high quality crest and ledge habitat with open-canopy hardwood forest on the west-facing slope above (east of) the Shoprite and west of the water tower. Chestnut oak, yellow birch, gray birch, black cherry, red cedar, blueberries, hay-scented fern, and other plants characterise this area. Extensive rock ledges occur in the upper portions of this area, including a ledge that is about 150 meters long from north to south and ca. 2.5 meters high on the west (downhill) side. The ledges and intervening woodlands contain the largest stand of spotted wintergreen (Chimaphila maculata), a very attractive wildflower, that Kiviat has seen in 35 years of biological field work in the Hudson Valley; many plants were in flower on 12 July. This area is a good example of non-carbonate crest and ledge habitat which could support species of conservation concern including eastern box turtle (Special Concern), whip-poor-will, eastern bluebird, and small-footed bat (Special Concern). The DEIS (page 3.3-4) reported eastern box turtle on the site but did not state where, when, or how many individuals were observed. Additional biodiversity information for this type of habitat is in the habitat profile for non-carbonate crest, ledge and talus in Kiviat and Stevens (2001).

Rare Plants

We did not attempt to conduct a thorough survey for rare plants. We did find three rare plant species on the site.

Shining bedstraw (Galium concinnum); New York Endangered

This small and inconspicuous herbaceous plant was reported ambiguously in the DEIS (page 3.3-4). The applicant's consultants found a bedstraw at multiple locations on the site that was believed to be shining bedstraw, but apparently they did not consult a technical botanist for a definitive identification. Therefore we looked for shining bedstraw and consulted the New York Natural Heritage Program (NYNHP).

Taxonomy. Kiviat collected a specimen from the site (northwest side of water tower) on 12 July that was subsequently examined by botanist Steve Young (NYNHP). Young stated that the material was consistent with Galium concinnum except the leaves were wider than typical concinnum. Variation of this sort is common in botanical specimens. Two other species of Galium most similar to concinnum would occur in different habitat types (asprellum in wetlands and mollugo in meadows). Therefore we are considering the Hillcrest Commons material as concinnum and of conservation concern unless and until it is demonstrated otherwise. Additional material of this plant was collected on 26 August and is being forwarded to Young for examination.

Distribution on site. We found shining bedstraw at several locations on the site (Table 1, Figure 1). The species could be present in additional areas that we were not able to check.

Potential impacts of development. Construction of roads, sewage systems, buildings, or other disturbances at or near the shining bedstraw occurrences could eliminate shining bedstraw from the site. Because this species is listed as Endangered and is known from very few localities in the state, it deserves special consideration. According to the NYNHP web site (accessed 29 July 2005), shining bedstraw has been confirmed during the last 20 years only in Dutchess and Putnam counties; it is listed as "Probable" (i.e., not confirmed by a specimen during the last 20 years) from four other counties, Cattaraugus, Monroe, Onondaga, and Ontario. Therefore Putnam and Dutchess counties may be the last extant range of this species in the state. We do not know if shining bedstraw has been documented recently at other localities in Putnam or Dutchess.

Management of shining bedstraw. All locations on the site should be found and marked. Areas where shining bedstraw occurs, and a suitable buffer zone (perhaps 30 meters all around, but more if there are steep slopes above the location), should not be developed and should be off-limits to construction equipment. Light disturbance may be necessary to maintain a viable population as this species does not occur in deep shade on the site and apparently requires canopy openings and possibly minor soil disturbance to thrive. Until there is an opportunity to conduct a thorough literature search and consult experts, we urge a conservative approach, i.e., strong protection. It should not be assumed that leaving the plant alone will ensure its survival onsite. Small-scale experimentation may be necessary to determine the appropriate management regime.

Small-flowered agrimony (Agrimonia parviflora); Natural Heritage Program Watch List.

Small-flowered agrimony is an herbaceous plant that is commonly about 0.5-1.0 m tall; it has small yellow flowers. The species is rare east of the Hudson River and somewhat more common to the southwest of the river. Small-flowered agrimony east of the Hudson occurs on moist to wet soils (but not in areas prone to much flooding) in a variety of wet meadow and wetland edge plant communities in partial to full sunlight.

Distribution on site. A stand (possibly 100 or more stems) occurs mingled with other vegetation around the edges of Wetland B in the southwestern portion of the site, roughly from wetland flag B-20 southwestward or westward along trails through wetland edges or "dry-end" wetlands (the accuracy of the location shown on Figure 1 is uncertain). There are two additional small occurrences (2-5 plants) elsewhere: 1. Ca. 110 meters south of water tower along a north-south wood road; and 2. Between Wetland B and the subdivision on the southeastern edge of the site (Table 1, Figure 1). There may be additional occurrences of this plant, for example, at Wetland B.

Potential impacts of development. Development at or near the small-flowered agrimony occurrences could eliminate this species from the site.

Management of small-flowered agrimony. Management will require protection of the occurrences with a buffer zone, perhaps 30 meters all around, and occasional removal of tall plants such as shrubs or trees potentially shading the agrimony. Small-flowered agrimony needs sun, and should also be monitored for the effects of browsing by deer.

Crawford sedge (Carex crawfordii). Regionally-rare.

Distribution on site. One occurrence in the northwestern wetland (Wetland A).

Potential impacts of development. Construction of the entrance road at or near this occurrence could easily eliminate Crawford sedge from the site.

Management. Unknown.

West Virginia White and Toothwort

West Virginia white is a rare butterfly; its larvae (caterpillars) feed only on toothworts. We looked for the host plant in the wetland and small stream in the northwestern corner of the site. No toothworts (Cardamine diphylla [Dentaria diphylla] or Cardamine concatenata [Dentaria laciniata]) were found, hence there is currently no potential habitat for West Virginia white butterfly at that location.

Indiana bat (Endangered) and small-footed bat (Special Concern)

The Hillcrest Commons site may be within 65 km (40 miles) of a known Indiana bat overwintering cave (hibernaculum) in the Kingston area. Indiana bats are known to migrate 65 km or farther from hibernaculum to summering areas. Development sites within 65 km of a hibernaculum should be assessed for potential Indiana bat summer habitat, including male roost trees, nursery colonies, and foraging habitat. In summer, Indiana bats roost or rear young in trees 23 cm (9 inches) or larger in diameter (sometimes as small as 13 cm [5 inches]). There are many trees 23 cm and larger on the site; among the larger trees are a ca. 60 cm (24 inch) white ash and two 75 cm (30 inch) red oaks (Figure 1). A ca. 75 cm (30 inch) and a ca. 90 cm (36 inch) chestnut oak and a ca. 95 cm (38 inch) scarlet(?) oak are not shown on Figure 1; they are on the rock ledges between the Shoprite and the water tower. The stream at the eastern edge of the site, portions of Wetland B, existing woods roads, and forest edges are potential foraging habitat for Indiana bat. The applicant should consult the US Fish and Wildlife Service in Cortland, New York, concerning the methods and expertise required for an Indiana bat assessment. The site layout and removal of trees should be planned with consideration of Indiana bat habitat.

Small-footed bat could use ledges on the site, e.g., between the Shoprite and the water tower, for summer roosts or nurseries. The biology of this species is relatively poorly known, but it seems to have an affinity for rocks. Development of the ledgy areas of the site could have an impact on this species.

Timber rattlesnake (Threatened)

Onsite habitats, such as the west-facing crest and ledge complex described above, could serve as foraging areas for this species if there were a den within about 2-3 km (about 1-2 miles) of the site. There is no known timber rattlesnake den near the site (Al Breisch, New York State Department of Environmental Conservation, personal communication). Knowledge concerning the distribution of this species is constantly being revised, as exemplified by the confirmation a decade ago of the timber rattlesnake population on Fishkill Ridge. Therefore it is possible that rattlesnakes occur on the site but we consider the probability low.

Garbage dumps

There has been considerable dumping off the edges of the shopping plaza parking areas (north and south of the plaza). Cursory inspection revealed furniture, mattresses, household garbage, shopping carts, and construction and demolition debris adjoining the margins of the parking areas. In addition, there are some piles of construction and demolition debris on the site perhaps 30-50 meters off the southeastern corner of the shopping plaza parking area. This dumping has created a hazard to wildlife and a source of pollution to Wetlands A and B. Furthermore, refuse that collects standing water (e.g., containers) is likely to provide breeding habitat for mosquitoes that are potential vectors of West Nile virus. The dumps should be investigated for possible hazardous substances (e.g., asbestos, pesticides, petroleum hydrocarbons, metals) that might contaminate ground or surface water or generate airborne contaminants. Following this investigation, the dumps should be cleaned up appropriately and further dumping prevented.

Stormwater

Portions of Wetland B close to the southeastern corner of the shopping plaza are degraded, apparently by stormwater drainage (via at least one pipe and possibly direct runoff) from the parking areas. The visual appearance of the vegetation and sediments indicates water quality degradation, probably from nutrients, organic matter (food wastes??), and petroleum hydrocarbons. Organically-polluted surface water provides potential breeding habitat for mosquitoes (e.g., Culex pipiens) believed to vector West Nile virus; unpolluted wetlands are less hazardous in that regard. Stormwater from the parking areas needs to be treated before being discharged into Wetland B.

Time did not permit us to visit every portion of the site. For example, our coverage of the eastern end of the site was limited and we did not see the stream corridor at the eastern site boundary. There may be additional habitats or species of conservation concern in areas we did not cover.

Conclusions and Recommendations

The DEIS provides very little information on the biological resources of the Hillcrest Commons site. The examples we have given above show that much more detailed study and consideration are needed. There should be a habitat assessment for Indiana bat and small-footed bat, conducted by a bat expert. A thorough survey for rare plants (at least those species listed as S1, S2, or S3 by NYNHP, and regionally-rare species) on the entire site, conducted by an experienced field botanist at the appropriate seasons, is also needed. The three rare plant species we report above could occur at other locations on the site, and additional rarities could also occur on the site. We also recommend a breeding-season bird survey by an experienced field ornithologist to detect birds of conservation concern. Rare animals and plants are disappearing from Putnam County in part because land use change is proceeding without thorough biodiversity assessments and appropriate planning. Without surveys such as those we recommend, it will not be possible to avoid gratuitous impacts on the biological resources of the Hillcrest Commons site and neighboring areas. The large trees mentioned above, and any others like them (e.g., 50 cm or larger), should be protected. Locations of rare plants should be protected with buffer zones. Because the west-facing crest and ledge area between the water tower and the Shoprite is steep and contains exemplary habitat, development should be sited on topographically more gentle areas of the site and the west-facing slopes and ledges protected. This would effect protection of the spotted wintergreen population as well as some of the largest trees onsite. The applicant's consultants should refer to Biodiversity Assessment Manual for the Hudson River Estuary Corridor (Kiviat and Stevens 2001) for further considerations regarding habitat assessment.

Reference Cited

Kiviat, E. & G. Stevens. 2001. Biodiversity assessment manual for the Hudson River estuary corridor. New York State Department of Environmental Conservation, New Paltz, New York. 508 p.

Table 1. Occurrences of rare plant species at the proposed Hillcrest Commons development site, Towns of Carmel and Kent, Putnam County, New York. Galium concinnum (shining bedstraw) = New York State Endangered. Agrimonia parviflora (small-flowered agrimony) = New York Natural Heritage Program Watch List. Carex crawfordii (Crawford sedge) = Regionally rare.

Putnam County Coalition to Preserve Open Space comments on Hillcrest Commons

August 5, 2004
Mr. Harold Gary, Chairman and
Members of the Town of Carmel Planning Board
Town Hall
60 McAlpin Avenue
Mahopac, New York 10541

RE: Hillcrest Commons

Dear Mr. Gary:

While supporting the principles of sustainable development, the Putnam County Coalition to Preserve Open Space seeks to preserve environmentally and ecologically threatened land and the conservation of historic sites and structures. It is a county-wide, not for profit, non-partisan organization composed of residents of Putnam County towns who share a common concern over the direction, scope and intensity of residential and commercial development that is transforming their rural landscapes into the suburbias they left with all of their concomitant problems of air and noise pollution, traffic congestion, degradation of water quality and destruction of forested vistas, fragmenting open space so essential to the maintenance of viable wildlife habitat and corridors.

Our comments will be limited simply to the senior housing and traffic portion of the development and will not include those matters affecting impacts to water quality and stormwater so ably evaluated by Dr. Rose, President of the Croton Watershed Clean Water Coalition nor those matters expounded on by Dr. Kiviat concerning development impacts on biodiversity and Eugene Boesch on the historical/archaeological nature of the site and CWCWC and Coalition attorney, Jim Bacon.

In all respects, Hillcrest Commons poses innumerable and, we believe, insurmountable problems affecting the quality of life of residents; the landscape, steep slopes, ridges and vistas that make Putnam County the county where the country begins; Michael Brook, a water body so impacted by the cumulative assaults of past and proposed development that NRDC has placed it and the Croton Reservoir on its endangered list; an infrastructure, so limited by the constraints of terrain and development that congestion has become the norm and not the exception with Rte 52 as the sole north-south route for trucks, trailers and vehicular traffic becoming a major safety issue for all residents and for emergency services who must not only navigate 52 but the proposed road winding around steep slopes. Notwithstanding the optimistic appraisal of the traffic study (traffic studies have been notoriously inaccurate), this development will only exacerbate an already intolerable traffic situation no longer limited to a couple of hours but expanding throughout the entire day.

And into this environment, the applicants for Hillcrest Commons propose 150 units of senior housing with an alternative additional 150 substituting for the 60,000 sq. ft office space. Their proposal based on the recycled senior housing study on demographic data, employed for justifying the 275 units of market-rate senior housing, The Fairways, not two miles distant off Fair St. Nowhere does the study connect the dots between demographics and actual polling data that would lend credence to their assertion that a majority of Putnam County/Carmel residents would move laterally from their homes into this development, braving high taxes and maintenance charges. As a matter of fact, a June 3rd Journal News article suggests otherwise, noting that in all age categories beginning with 60 until 79, Putnam County experienced a net loss in population; the only increase (38) in the frailest of age populations (80-84), requiring the most care and health services.

As the Board is aware, the Coalition has written and has had an ad campaign urging a moratorium on all senior housing development in the Hamlet of Carmel, amounting to 1000 units. And we have litigated another senior housing development of 388 units. We have done so because as I commented during the Public Hearing, a tipping point - a saturation point is on the horizon where additional development will neither provide the quality of life expected by present residents nor that hoped for by prospective purchasers of these units.

The Coalition has been joined in its concern by Town officials who have raised grave reservations concerning the present Multi-Family “Affordable” Senior Housing law and most importantly, the tax implications of a population requiring emergency and intensive medical services on all residents, seniors and family.

The assertion that this population may have significant additional assets and excellent credit to cover medical costs has been examined and debunked in a recent NYTimes article wherein middle-class seniors confronted with unanticipated illness and attendant exorbitant costs, have sought ways to attain Medicaid eligibility, funded by tax payer dollars. An added ingredient has been the recent phenomenon of parents subsidizing adult children and their families. Again the assertion that seniors have all this disposable income simply to spend on moving expenses either from one side of the county or town to the other or from different counties, must be vigorously examined and the senior housing study neglects to include these very significant cultural variables.

The Coalition supports a diversity of housing options for all of its citizens - housing options which are truly affordable - and which recognize that development must meet the criteria of sustainability - infrastructure, wildlife and historical resources, town character, landscape and water quality. Hillcrest Commons as presently proposed, is the very antithesis of sustainability and must be drastically modified.

Please accept our appreciation for your serious consideration of our comments.

Sincerely,

Ann Fanizzi, Chair
Putnam County Coalition to Preserve Open Space
CC: Mr. Arthur Singer, Chairman, Town of Kent Planning Board

CWCWC attorney Jim Bacon comments on Hillcrest Commons

August 5, 2005
Harold Gary, Chairman
Town of Carmel Planning Board
60 McAlpin Boulevard
Carmel, New York 10512

Re: Comments on Hillcrest Commons DEIS

Dear Chairman Gary and Members of the Board:

The following comments are presented on behalf of the Croton Watershed Clean Water Coalition (CWCWC) and the Putnam County Coalition to Preserve Open Space (PCCPOS). The comments supplement the comments I presented at the Board’s July 6, 2005 at the public hearing on the Draft Environment Impact Statement (DEIS) for the Hillcrest Commons project comprised of 60,000 square feet of commercial development along with 150 units of senior housing. The project is situated on a small mountain directly behind the Shop-Rite Plaza on Route 52 in the Town of Carmel.

Because many of the project’s significant impacts have not been identified nor mitigated, a Supplemental EIS (SEIS) should be prepared to address these outstanding issues pursuant to 6 NYCRR §617.9.

As stated by Gerrard, Ruzow and Weinberg in their noted treatise "Environmental Impact Review in New York," cited by many courts in their determinations, the objective of the SEIS is:

“to provide involved agencies and the public with information about potentially significant environmental effects of an action that were omitted from discussion in the earlier EIS.” (Emphasis added; and see: VLG Real Estate Developers v Goold, Index No. 170227 (Sup. Ct. Rensselear County, December 19, 1989))." (Id. at §3.13[1]).

If the lead agency learns of important new issues about significant adverse environmental effects regarding the proposed action in the course of receiving public comments or issues that were omitted or not adequately addressed in the DEIS, the lead agency must require the preparation of the SEIS in order to solicit additional public comment on the new issues. (6 N.Y.C.R.R. §617.9(a)(7)).

Here, examination of the information in the DEIS with regard water quality and wetlands impacts, wildlife data and archeological data, indicates that information concerning the project’s significant environmental impacts is either missing, incomplete or incorrect.

Water Quality Impacts/Wetlands

As mentioned at the public hearing, pursuant to the Clean Water Act §309, Total Maximum Daily Loads (TMDLs) have been prepared for the reservoirs in the Croton Watershed by the New York State Department of Environmental Conservation (DEC), in consultation with the New York City Department of Environmental Protection (DEP) and the United States Environmental Protection Agency (EPA). Many Croton reservoirs, including the Croton Falls Reservoir downgradient from the present project, are in violation of State Water Quality Standards due in large part to excessive phosphorus loadings from stormwater runoff. Phosphorus is a nutrient which causes algae blooms which deplete a water body’s oxygen levels as the plants degrade. Excessive phosphorus causes taste, odor and color problems in the drinking water used by New York City and many communities in Westchester County. As part of the historic 1997 Memorandum of Agreement, the Town of Carmel agreed to assist in reducing existing and future phosphorus sources. The TMDLs specifically require the Town of Carmel to reduce existing sources of phosphorus from entering the Croton Falls Reservoir. (See DEC publication entitled “Non-Point Source Implementation of the Phase II Phosphorus TMDLs in the New York City Watershed” (2002) (“Phase II Report”) forwarded by overnight mail on 8/4/05).

Critical in examining the impacts from new development, is the accurate identification of pre-development phosphorus run-off levels. In this regard, DEP has performed several years of monitoring in different areas of the watershed to accurately gauge pre-development phosphorus levels. DEP concluded that pre-development phosphorus levels in the Croton system for undeveloped forestland is .0446 lbs. per acre per year. (lbs/acre/yr). 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. (Also see David Clouser, P.E.’s correspondence regarding Gateway/Fairways project in the Town of Carmel).

Rather than using the 0.446 lbs. per acre per year, the Applicant’s DEIS and stormwater calculations rely upon a 1992 DEC publication which estimated pre-development levels of phosphorus on forestland at .10 lbs. per acre per year. Consequently, the Applicant’s calculations are off by a factor of 2.24. Therefore, less than half as much phosphorus is leaving the site currently as compared with estimates by the Applicant.

The issue becomes clear when examining one of the Applicant’s subcatchment areas - specifically 1.0S. That subcatchment area is 12 acres. When multiplied by correct pollutant loading coefficient of .0446, the result is 0.53 lbs/acre/yr. for pre-development phosphorus levels. The Applicant states that with its development and no stormwater management, the 1.0S area would produce 14.2 lbs/acre/yr of phosphorus. According to the Applicant’s stormwater report, in a best case scenario post-development phosphorus levels would be .33 to 1.96 lbs/acre/yr. (See Stormwater Management Report in DEIS Appendix). Consequently, the post-development runoff levels may be up to 3.5 times pre-development levels for a 2-year storm. This is simply unacceptable. The Applicant must apply the correct pre-development export coefficients and redesign the stormwater management accordingly. This should occur in an SEIS – during the SEQRA process – in order to allow the public has an opportunity to comment on the stormwater design system.

The Applicant should also complete this work at this time because DEC and DEP will eventually require same. In fact, 6 N.Y.C.R.R. §750 indicates that DEC will grant no permit to a development, which would exacerbate conditions in water quality basins that are already violating State Water Quality Standards. Additionally, the scope for the DEIS sought information for not only 2 year storms, but also the 10, 25, 50 and 100 year storms. (See page 7 of Scoping Document 428-04). The Applicant’s failure to produce this information in the DEIS is a further indication that an SEIS is needed. I would also note that compliance with the Carmel Croton Plan was in the Draft Scope dated December 5, 2003, but was omitted from the final draft scope.

Concerning wetlands, the Applicant intends to permanently disturb .339 acres of wetlands. The Federal Regulations at CFR §230.10 provide that wetlands impacts should be avoided. The law provides that alternatives to disturbing are presumed to be available if the project is not a water dependent activity, e.g. coastal wetland project, etc. In examining the project, it appears that a reasonable alternative would be to use the existing parking lot for accessing the site.

Shop-Rite should allow this to occur, as they are essentially a partner in this project being allowed to expand their building by 10,000 square feet, add 50 additional parking spaces, and obtain additional property behind their building from the Applicant. While the DEIS claimed this access would not be feasible, the reasons were not explained. The Planning Board should bear in mind its primary obligation under the State Environmental Quality Review Act (SEQRA) is to ensure that the project’s impacts are mitigated to the maximum extent practicable. (6 N.Y.C.R.R. §617.12) In this regard, requiring that the Applicant avoid impacting wetlands will be the best mechanism for mitigating impacts to same.

Wildlife/Flora and Fauna

The Board should require a Supplemental EIS because the endangered plant shining bedstraw has been located (but as yet unconfirmed by the State) in several areas on the site. Specifically, as explained in a report by Hudsonia, Ltd., a nationally recognized scientific organization based in the Hudson Valley. Erik Kiviat, Ph.D., Director of Hudsonia, discovered several areas appearing to contain the endangered plant. (Submitted by this office by overnight mail 8/4/05). This is significant, because the species is classified as an S-1 Species indicating that there are 6 or less sites known in New York State where they plant may be found. A full examination of where the species is located on the site and a maintenance plan to insure that the species is protected should be established following all protocols and recommendations of DEC or the Natural Heritage Program and any other recommendations made by knowledgeable experts. The Board should also retain the services of a qualified biologist with experience in protecting endangered plants to ensure protective measures are implemented.

Further, as I stated at the public hearing, the DEIS should have contained the identity of those searching the site, the times of year and the time spent on the site along with identification of the areas of the site claimed to be examined. Without this information, it is impossible to comment on the validity of the Applicant’s data. Furthermore, the generic natural heritage letter obtained by the Applicant is no substitute for on-site investigation as proved by Hudsonia’s findings. Also, because the letter is dated November 4, 2003, it must be updated as the letter itself states it is only valid for a period of one year.

Archaeology

CWCWC has retained the services of Eugene Boesch, Ph.D. to examine archeological factors pertaining to the development site. Attached hereto is Mr. Boesch’s report.

Dr. Boesch's findings indicate that the Applicant’s archeological studies are flawed in several aspects. For example, the New York Office of Parks, Recreation and Historic Preservation (OPRHP) recently modified their guidelines in the spring 2005. (OPRHP Achaeological Report Format Requirements 2005). The Applicant’s report was dated November 2004 and included only a Phase Ia report. As Mr. Boesch indicates, the Phase Ia report is deficient as it fails to conform with current OPRHP requirements. Moreover, Dr. Boesch spoke with OPRHP and determined that that Applicant's report was not shared with the OPRHP. Because the site has evidence of archaeological significance, SEQRA requires that other interested agencies be given the opportunity to comment upon issues relevant to their expertise. This has not occurred. OPRHP must be allowed to comment on the project during the SEQRA process. The lead agency should require the Applicant to conduct studies conforming with current OPRHP requirements and that this information be made available to the OPRHP and the public.

While the DEIS claims the Applicant intends to complete a Phase Ib report this should not occur until a proper Phase Ia report is completed which conforms in all respects with OPRHP requirements as identified by Dr. Boesch.

Traffic

To the extent that the Applicant can propose a project with a common entryway to Shop-Rite, this should be pursued. There are several reasons including the fact that Horse Pound Road currently is at an S level of service at the intersection of Route 52. Secondly, placing a traffic light at the location proposed by the Applicant would result in two traffic lights being situated within 600 feet. The close proximity of the two signals will form gridlock between the traffic lights and further congestion on Route 52.

Alternatives

With regard to alternatives, the Applicant should present alternative access routes, a plan which preserves and protects endangered plant species and sensitive archeological areas and present a stormwater management plan which conforms to the applicable regulations and guidelines.

Further, 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, (1^st 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).

In addition to a smaller scaled plan avoiding sensitive resources, the Applicant should also present a proposal which avoids 15% and higher and slopes as DEP suggested in its January 9, 2003 correspondence. The Applicant should also disclose the results of any deep hole tests which DEP indicated should be conducted.

Consequently, substantive and significant issues remain outstanding for the present application and we look forward to the Board’s continued review of the project.

In sum, the deficiencies in the DEIS with respect to information concerning the site's flora and fauna and species preliminarily identified as endangered, archaeological resources, stormwater calculations and stormwater management designs, wetlands and traffic impacts along with examination of alternatives, indicates that a Supplement EIS is required in order to examine the project's potentially significant environmental impacts.

Sincerely,

James Bacon
Attorney at Law