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State raps planning chief on mine move     

SUNDAY FREEMAN August 26, 2001 (A5) by William J. Kemble, Correspondent

It's not within a chairman's unilateral authority to decide of a board is eligible to be lead agent.' -Theresa Wescott - Spokeswoman, New York Department of State

SAUGERTIES - Opponents of the mining operation near Morse Road have won support from state officials in their argument that town Planning Board Chairman William Creen has acted improperly in the review of the project.
    Theresa Wescott, a spokeswoman for the state Department of State, said last week that a determination of what agency would lead the environmental review of the project should have been made through a vote by the Planning Board, not at the discretion of the chairman.
    "It's not within a chairman's unilateral authority to decide if a board is eligible to be lead agent," Weskit said. "A majority vote of the board is required." WESCOTT SAID the opinion is based on state Environmental Quality Review Act requirements that call for "decision by a board" and through state municipal laws that outline how decisions are reached through a majority vote.
    Last week, the Planning Board agreed to support the Town Board's request to assume lead status on reviewing environmental forms. Creen said a June letter turning the lead agency status to the state Department of Environmental Conservation was based on a discussion by planners, but acknowledged no vote had been taken.
    "It was the last thing on the agenda ... and all board members nodded in the affirmative that we didn't have the resources," Creen said. "My failure, there was no one there but the board. I didn't do a formal vote of 'aye.'
    " Shott Rock Inc. is seeking a special use permit to resume mining operations on about 45 acres near Morse Road, off state Route 212. Officials say the company was ordered to cease operations after being found in violation of town zoning laws prohibiting such operations in a residential district.
     Morse Road resident Brian Donoghue said efforts to make video and audio tapes of a July town Planning Board were impeded when Creen ordered the recording devices turned off.
     "We were told we couldn't tape it ... but left the video running," Donoghue said. "We didn't make it obvious that it was running and just left it on the table. So there is a videotape, but it's just not ideal."
     At a board meeting Wednesday, Creen also demanded that a Freeman reporter turn off a tape recorder during a discussion on the Shott Rock's application but was refused after being told the recording was allowed under the state Open Meetings Law.
     Robert Freeman, executive director of the state Committee on Open Government, has previously said court decisions have repeatedly upheld the right of individuals to record meetings.
     "In view of the judicial determination rendered by the (state) Appellate Division, I believe that a member of the public may tape record open meetings of public bodies, as long as tape recording is carried out unobtrusively and in a manner that does not detract from the deliberative process," he said. "Although there are no judicial decisions of which I am aware that deal with the use of camcorders at open meetings, a court in my opinion would likely determine that issue based upon the same principles at (as) those considered regarding the use of tape recorders."
     RESIDENTS ALSO say the state's Freedom of Information Law was violated when minutes to the board's June meeting were not available within two weeks.
     "We asked for minutes for when they originally turned over the lead agency status," Donoghue said. "We got the minutes eventually, five weeks alter after being told they could not be made available until the board gets them" Town officials said they were unfamiliar with the request and have typically not had town Planning Board minutes ready within two weeks.
   Freeman said there is no requirement for the town Planning Board to review meeting minutes before the public is allowed to access them.
     "In the event that minutes have not been approved, to comply with the Open Meeting Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked 'unapproved,' 'draft' or 'non-final,' for example," he said.
     Meanwhile, a town planning consultant says state Deparment of Environmental Conservation reviews have found that Shott Rock, Inc. has not provided enough information about the mining operation.
     "DEC just released a memo, four or five pages long, over the last week saying that from their perspective, Shott's application is incomplete and there's a lot more homework they've got to do," consultant Miles Putnam said.
     Several Planning Board members said the reason they endorsed the state's request for lead agency status was to relieve pressure on Town Board members who have been besieged with complaints from residents over the mining proposal.
     "It's disturbing to me that when 200 people come start yelling at the town ... (w)hen all of a sudden they do a full 180 and now they make statements that they'll hire anybody that they need to and do whatever they need to do," Planning Board member William Brandt said.
     "One of my main concerns was that they were going to hire just a single engineer ... and it wasn't going to get the scrutiny that the state would give it with all the resources that they have," Brandt said. "We all came to kind of agreement that they should do it because they have the resources."
     Planning Board member Joseph Marino said the board should have the status returned, based on state requirements. "I think the lead agency (role) should reside with the (Planning) board, and since the DEC is an involved agency, we still solicit their expertise," Marino said. "Environmental Quality Review regulations state that items of high local interest should reside with the local boards."
     Margaret Duke, the regional permit administrator for the state agency, said the question of lead agency will be brought to the state environmental Commissioner Erin Crotty for a ruling. "We have a policy in the department that the DEC will be lead on mining applications because state regulations supersede that of local government," she said.
     Planning Board members said the decision whether to issue the special use permit will still be made at the local level and that individual reviews have already been conducted. Brandt said an informal site inspection of the road proposed to be used by the mining operation has shown that there would be an adverse impact on residents.
     "I went up there and sat at the end of the road for an hour," he said. "Not one single car came in that road ... and now the difference is going to be a worst case scenario. They said 45 trips; that's 90 trucks. That's a big difference. That's a drastic impact for that small little neighborhood there."

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