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Letter read by citizen appealing to the DEC at Legislative Law Hearing Steven Fornal I begin with the Enacting Clause and Purposes (section 1.3) of the 1983 Zoning and Land Use Control Law of the Town of Rochester (the Code in effect when all the mines in town applied for and received their permits). To wit: "This local law is enacted pursuant to Town Law of the State of New York, Chapter 62 of the consolidated Laws, Article 16, to protect and promote public health, safety, morals, comfort, convenience, economy, town esthetics and the general welfare and for the following additional purposes: "1.3-2 To encourage the most appropriate use of land in the community in order to conserve and enhance the value of property; "1.3-4 To protect and enhance existing wooded areas, scenic areas, and waterways and to preserve where appropriate the essentially rural character of the Town; "1.3-8 To assure privacy for residences and freedom from nuisances and things harmful to the senses; "1.3-9 To protect the community against unsightly, obtrusive, and noisome land uses and operations; "1.3-10 To enhance the esthetic aspects throughout the entire community and maintain its present natural beauty;
"1.3-13 To preserve and protect lands and buildings that are historically significant." Further, the town's master plan in force at the time of the mines receiving their permits to operate, dated 1969, entitled, Town of Rochester Development Plan, states the following: SA-14: The several quarries and sand and gravel pits located within the Town can also be classified as industrial...This incompatible land use situation should be avoided through zoning in the future. Also considerations for areas proposed for industrial use must consider access both in terms of street capacities and in terms of the means of access by which vehicles from the major highways will reach the industrial uses. Such vehicles should not have to traverse a residential neighborhood. EA-14 Performance standards, site plan review and buffers can insure that industrial uses will be compatible in the town. GO-10 Another goal and objective of the plan is to preserve and improve the town's residential character...By preventing intrusion of incompatible uses in residential areas...[TO IMPROVE THE TOWN'S ECONOMIC BASE] By providing sites for compatible industries (but always keeping in mind that the predominant character of the town is residential...By preserving and enhancing the natural beauty and man-made environment, thus assuring the maintenance and increase of property values... DP-08 [INDUSTRY] A "floating" industrial district...will allow establishment of an industrial site, provided that the proposal conforms exactly to the...performance standards as spelled out in the ordinance. The required reviews by various town officials can guarantee that only desirable and compatible uses can be established on appropriate sites. DP-08 [INDUSTRIAL DEVELOPMENT STANDARDS] The traffic access to industrial uses is of prime importance. Industrial uses generate...truck traffic...It is essential that the substantial traffic which can be generated by an industrial use not pass through residential areas utilizing local access streets... DP-09 [Performance Standards] The zoning ordinance sets forth standards controlling smoke, fumes, gas, dust, odor, noise, discharge of waste material, glare, vibration...The purpose of these performance standards is to make sure that the industrial uses located in the town will be compatible and will not adversely affect adjacent properties either residential, business or industrial due to its operation. DP-42 In their day-to-day work the town Planning Board should utilize the Development Plan as a guide. There is no doubt that at times, the Planning Board will be under pressure to make changes or exceptions, or reduce the requirements and standards which have been established by the Development Plan. Because of their unique responsibility to the future, it is critical that the Board be impartial and maintain a long-range view-point in all of their decisions. In addition, New York State Town Law § 274b Approval of Special Use Permits states: (1) ...As used in this section the term "special use permit" shall mean an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met. (4)...The authorized board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit. (8)...The authorized board shall comply with the provisions of the state environmental quality review act (SEQRA) under article eight of the Environmental Conservation Law and its implementing regulations. Such SEQRA review routinely involves consideration of the following areas of potential environmental impact: Aesthetics and views; Agricultural lands; Community character; Endangered species and habitat; Floodplains; Hazardous wastes; Historic buildings and archaeological sites; Socio-economic data; Noise, odor, vibrations; Open space and recreation; Pollution potential; Steep slopes; Septic and sewage treatment; Traffic; Water quality including groundwater, stormwater and erosion control; Wetlands; etc Further, New York State is a Home Rule state which means local boards have a huge amount of power to decide local zoning issues. In fact, members of local Planning Board and Zoning Board of Appeals are considered "experts" vis-a-vis their testimony in any legal action involving the township. Your Honor, it is of immense importance to now fully realize all that I've so far read detailing the power granted to local governments by the State of New York to plan their own community and govern their own affairs, stands in direct contradiction with the New York State Mined Land Reclamation Program which limits local involvement to but four simple elements: Ingress. Egress. Routing of truck traffic. Enforcement of reclamation conditions. We must not mistake the stark reality that obviously exists: A semantic cover-up for the usurpation of Home Rule and local zoning authority by the state of New York. The good people of the town of Rochester are gathered here tonight to express their concerns as well as lament the complete breakdown of legal safeguards in place to protect their health, safety and welfare. For our local officials and the state Department of Environmental Conservation have abandoned us. The Metro Recycling & Crushing, Inc. mine site is situated in one of the town's most densely populated residential zones. Prior to 1993, processing of mined material was a prohibited use. But, a simple letter of request for a law change to then-Supervisor Robert K. Baker from his cousin, Howard Osterhoudt (owner of Rock Mountain Farms, Inc which previously owned the site) resulted in the commercialization of mining within residentially zoned areas via Local Law #2 of 1993. As you are no doubt well aware, New York state's only demand as far as informing the public to any proposed law changes is to post a Legal Notice in the paper of record. Our local ordinance, titled the 1983 Zoning And Land Use Control Law Of The Town Of Rochester, Section 11.34 required a legal notice be published in the newspaper of record ten (10) days prior to the public hearing for the above mentioned amendment. Unfortunately, discovered just two days ago is the fact that said Legal Notice was published on 16 June 1993 for the public hearing held on 24 June 1993; which technically nullifies that law via procedural flaw. Even if properly noticed, such feeble requirements of notification means most people are never aware of proposed changes in local law until they are notified via the Planning Board requirement for notifying bounding owners whenever a Special Use Permit is required. Therefore, not until about 1995 when Planning Board public hearings were held for Permit Renewals that included requests from various mine owners to include processing of mined material, were residents made aware that such use was now allowed in residentially zoned areas. Those who attended spoke out bitterly against such use to no avail. I personally requested of the Town Board to rescind said law (6 June 1996) but had that request denied after just three minutes of consideration (11 July 1996). On 3 October 1996, a petition with 45 signatures was delivered to the Town Board expressing dire concerns as regards the impacts of commercial mining in residential neighborhoods and requesting that the town act on behalf of all those residents so impacted. The town board never responded to the petitioners and never addressed the issues raised in said petition. In July 1996, our Zoning Board of Appeals granted a Use Variance in a R-1 residential zone on Rochester Center Road to a large scale saw mill due to the fact that the mines located there (all under the auspices of the New York State Department of Environmental Conservation Mined Land Reclamation Program) were, according to the ZBA chairperson, "very loud and aesthetically unpleasing."6 That saw mill has been a nuisance to several neighbors due to noise and truck traffic ever since. During this town's recodification (1997-1999), which was a thinly veiled effort to allow previously prohibited uses into residential zones, eight public hearings were held over the span of one year. Hundreds of residents attended. All spoke against such intrusions into residentially zoned areas. Every letter received expressed opposition to such foul, intrusive uses. Never-the-less, recodification passed unanimously. Additionally, despite the obvious devaluation caused by commercial mining in residential zones, not a single home/property owner had their assessment lowered unless they put out additional money to hire an appraisor to fight the town via the tax grievance procedure. On 4 October 2000 I spoke with Town Supervisor Harold Lipton regarding the Metro project and gave him a letter urging the town board to consider an immediate imposition of a moratorium against any new mining applications, requesting the rescission of Local Law #2 of 1993 that allowed for on-site processing of mined material in residential zones. I additionally pleaded that the town board correspond with the Planning Board in an effort to secure Lead Agency status so that a full SEQRA review could be conducted. Mr. Lipton and the town board did nothing. Your Honor, the Mined Land Reclamation Program has run amok in this community. The DEC officers responsible have miserably failed to uphold the most important provisions in the Mined Land Reclamation Law's Declaration of Policy (§ 23-2703): "To protect and perpetuate the taxable value of property;" and "To protect the health, safety and general welfare of the people, as well as the natural beauty and aesthetic values in the affected areas of the state." In this particular case, the NYSDEC has imperiled the value of 161 properties located within 2,000 feet of the mine site; properties with a combined assessed value of $11,520,500 as compared to just $90,000 for the Metro site.7 Hundreds of people within earshot will be impacted. Truck traffic (estimated at 70,000 tandem dump trucks per 1.4 million cubic yards proposed to be removed) will spew diesel fumes and dust that will impact hundreds of people. Degraded roads over a twenty year life of the mine will require thousands of taxpayers dollars to repair. In my own personal case regarding the operation of a mine under the MLRP, the processing equipment was allowed to be set up just 200' from the property line. Mitigation features conditioned on the permit were limited hours and days, three stockpiles of sufficient height to be located close to processing equipment as well as an interceding berm twenty feet high. All mitigation features were to be in place before the mine went active. That did not happen. Within weeks, more hours and days were requested and approved. Not long thereafter, the stockpiles were allowed to be hauled off-site and were never replaced. The berm, after three attempts, was still a full five feet lower than mandated (as established by a DEC surveyor some thirteen months after the project started). Thus, in addition to constant vibrations, dust, and diesel fumes on our property and inside our home, my wife and I were exposed to sustained noise levels of just over 80 dBA, or approximately 40 dBA over ambient level (about 42 dBA) for 10 hours a day, five days a week and a half day on Saturday. That level of noise constituted a quadrupling beyond the NYSDEC's own characterization as intolerable (which is increase of 20 dBA over ambient level).8 According to the NYSDEC's Program Policy Memorandum, Assessing and Mitigating Noise Impacts, "In non-industrial settings the Sound Pressure Level should probably not exceed ambient noise by more than 6 dBA at the receptor." Yet, what I heard from the MLRP specialist was this comment: "That's no more offensive than a good breeze..." Another favorite and well used comment regarding the outrageous noise levels neighbors have been exposed to is, "That's operational noise..." as if that somehow makes it less bothersome. As to the specifics of this particular proposal by Metro Recycling & Crushing, Inc. the NYSDEC again clearly displayed its arrogance and failure to protect the health, safety and welfare of the citizenry by issuing a Notice of Complete Application after accepting Metro's "Noise Attenuation Study of Proposed Aggregate Processing Plant" (prepared by George L. Marshall Engineering Geologists) for the following reasons (As stated in the NYSDEC's Assessing and Mitigating Noise Impacts memorandum): a) (pg 11) "Ambient Noise Level - A noise can only intrude if it differs in character or SPL from the normal ambient sound. Most objective attempts to assess nuisance noise adopt the technique of comparing the noise with actual ambient sound levels..." Metro used a book value ambient level of 55 dBA which is more appropriate for, and akin to suburban light traffic. Metro never tested for ambient level; which here, is approximately 42 dBA. b) (pg 13) "The property line should be the point of reference when adjacent land use is proximal to the property line." Metro used people's houses, termed receptors. c) (pg 14) "...the SPL should probably not exceed ambient noise by more than 6 dBA at the receptor." Metro proposed a maximum increase over ambient level at two closest homes of approximately 14 dBA (56 dBA over 42 dBA ambient) and 19.6 dBA; which verges on intolerable. d) (pg 20) "If there is any concern that levels based on reference values do not accurately reflect ambient SPL, field measurements should be undertaken to determine ambient SPLs." The NYSDEC still has not demanded on-site sound study be conducted. e) (pg 20) "When there is an indication from this initial analysis that marginal or significant noise impact may occur, further evaluation is required. In determining the potential for an adverse noise impact, consider not only ambient noise levels, but also the existing land use, and whether or not an increased noise level or the introduction of a discernable sound, that is out of character with existing sounds, will be considered annoying or obtrusive." Metro has not been required to conduct further site-specific evaluation. NYSDEC's aforementioned memorandum classifies an increase of 5 - 10 dBA over ambient level as being "Intrusive." Remember the proposed increase contained in Metro's sound study ranged from 14 to 19.6 dBA over ambient levels. f) (pg 22) "In circumstances where noise effects cannot readily be reduced to a level of no significance by project design or operational features in the application, the applicant must evaluate alternatives and mitigation measures in an environmental impact statement to avoid or reduce impacts to the maximum extent practicable per the requirements of the State Environmental Quality Review Act (SEQRA)." The NYSDEC accepted the Metro sound study and issued a Negative Declaration as to environmental impact thereby requiring no EIS. Further, I have been informed numerous times by the NYSDEC MLRP specialist that the Department would only accept as legitimate, sound studies conducted by Acoustical Engineers. Yet, the Metro study was conducted by Engineering Geologists. As for our local board of "experts" (and I refer to the Town of Rochester Planning Board) they had Metro's sound study a week in advance in order to give it a thorough going over yet, not a single member caught any of the many abovementioned problematic points. And, in fact, declared that the board had taken a hard look at the documents and "had no comments and welcomes the NYS DEC to be lead agency..." Not a single member questioned the fact that Metro's claim of no increase in scale of use (proposing 50 truck trips a day) is double the scale of use under former mine site owner, Rock Mountain Farms, Inc. which claimed no more than about 25 trips per day. Despite years of controversy and many, many compliants, ranging from rock droppings (cleaned up by town at taxpayer expense) to mining on restricted holidays, to routine violations of start and stop times, huge amounts of truck traffic through residential neighborhoods, etc. not a single member had a problem with Metro's project. Your Honor...I hope I've made it abundantly clear that we are in dire need of intervention. The NYSDEC must be held accountable to protect the people of New York. We need the NYSDEC to conduct an economic impact study (under auspices of SEQRA) in order to prove the Metro project is in fact in the best interest of the State of New York; with the proviso that devaluation of property and road degradation costs be figured into the equation. We need the NYSDEC to hold Metro to its own standard of noise impact which is no more than 6 - 10 dBA above a true ambient level (as established via credible Acoustical Engineering study). Finally, and most importantly, your honor, we need you, by way of your decision, to send a clear message to the State of New York Legislature that a revisitation of the Mined Land Reclamation Law is in order. Perhaps, many more degrees of scale would be helpful rather than the current above or below 1000 cubic tons level. Perhaps, mines in zoned residential areas be handled in a much more conservative manner in order to protect residential investment. For, the State of New York should never, ever countenance a law that is so pro-industry it abuses the citizenry.
Footnotes 1 The 1969 Development Plan's Existing Land Use Map does not notate a mining use at the proposed Metro site. 2 § 5.3-4 Performance Standards: (a) General Standards: The following general standards are hereby adopted for the control of uses in any light industrial district and no use shall be permitted, established, maintained or conducted therein which shall cause: (1) Excessive smoke, fumes, odor, dust or any other atmospheric pollutant beyond the boundaries of the lot whereon such use is located. (2) Noise, perceptible beyond the boundaries of the lot occupied by such use causing same. (6) Glare or vibration perceptible beyond the lot lines whereon such use is conducted. (8) Any other nuisance harmful to persons or property. (b) Specific Standards: (7) Buffer Strip: ...the entire district must be separated along its outside boundary from any adjoining residential zones by a buffer strip, suitably landscaped, at least one hundred feet wide. (d) Special consideration must be given to the traffic generated by each proposed use in a light industrial district and no undue traffic volumes shall be permitted on residential streets. Section 5.3-6 states: The Planning Board...may prescribe such additional conditions as are in its opinion necessary to secure the objectives of this local law. 3 Page 1557 of Town Clerk's Official Minutes Book: "Baker read the letter he received from H. Osterhoudt Excavating (filed with Clerk) regarding his request for rock crushing ... Page 1581 of Town Clerk's Official Minutes Book: "Residents Mr. & Mrs. Sperber asked where this mining operation was going to be and who is the owner. Supervisor Baker said it was located on Queen's Highway and the owner is Howard Osterhoudt..." Kingston Daily Freeman article "Residents petitioning over mines"(4 October 1996): "Supervisor Robert Baker was asked if he and the town's boards might not be showing more interest in the commercial mining development within the town because one of the owners of one of the larger mining companies is the supervisor's relative. Baker said he and Howard Osterhoudt are cousins..." 4 Section 11.3 of the 1983 Zoning And Land Use Control Law Of The Town Of Rochester states: "Public Notice and Hearing: The Town Board, by resolution, shall fix the time and place of the public hearing and cause notice to be given as follows: a) By publishing a notice of the proposed amendment and the time and place of the public hearing in a newspaper of general circulation in the town not less than ten (10) days prior to the date of said public hearing. [See: attached copy of Kingston Daily Freeman Legal Notices dated 16 June 1993] 5 Copy of Kingston Daily Freeman Legal Notices dated 16 June 1993. 6 Town of Rochester Zoning Board of Appeals minutes of April 1996 meeting re Use Variance for Waruch Lumber Mill. Also, article entitled, "Couple appeals ruling that allowed sawmill, manufacturer" from Kingston Daily Freeman, dated 26 August 1996. 7 Mining Update published by Rochester Residents
Association, Inc; May 2002 [Attached] 8 Page 15, NYSDEC Assessing and
Mitigating Noise Impacts (Program Policy Memorandum) Revised Edition 2
February 2001 9 Letter from Town of Rochester Planning Board Chairman,
Brian Drabkin, dated 19 October 2000, addressed to Lawrence G. Biegel;
NYSDEC Division of Environmental Permits.
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