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NEW SAUGERTIES TIMES September 20, 2001 (p1)
SHOTT ACROSS THE BOW
Town moves against unrestricted mining as residents
march against the excavator The first of two public hearings on a zoning
amendment to prohibit mining in a residential area was scheduled to take
place this Thursday, September 20, at 6:30pm.
The amendment to the zoning law was proposed by supervisor
Greg Helsmoorel. CARES had criticized the conduct of the town zoning board
in hosting a meeting for Shott Rock Inc., a Westchester County-based company
that wants to institute quarrying on the ridge behind Morse Road in Veteran.
William Creen, the planning board chairman, came under particular fire
for notifying the state Department of Environmental Conservation (DEC)
that the town had no interest in becoming the lead agency in the environmental
review of Shott Rock's application before the state for a mining permit.
Helsmoortel tried unsuccessfully to have Creen rescind
his letter to the DEC, and then wrote one himself. He asked the state
agency to return consideration of lead-agency status to the town for further
review. The state declined the request this week.
The town board took up the idea of amending the zoning
law in August. The proposed change would eliminate the right to a special-use
permit for quarrying in residential zones, although quarrying would still
be allowed in office and light industrial zones within the town by special-use
permit. A second public hearing will be held October 11.
CARES attorney March Gallagher said the Shott Rock
mine would no be allowed if the changes to the zoning law are adopted.
"Only those establishments operating as legal mines when the law goes
into effect will be grandfathered in as a pre-existing use," she said.
She added that Gilbert Shott's operation on that ridge had been shut down
for lack of a permit in 1999.
Her contentions seemed supported by existing case law.
In an article in the most recent issue of The New York Environmental Lawyer,
attorneys John W. Caffry and Inga L. Fricke cited a 1988 case where an
applicant's claim about a vested right to mine was denied. "Within limits,
municipalities are free to amend their zoning ordinances long after a
new mine has been proposed," the article states. The lawyers said that
a town cannot regulate the technical aspects of mining, but it can still
determine appropriate land uses within its borders by enacting or changing
its zoning law.
There are also ways in which municipalities can impact
the permit process through the state environmental quality review act
(SEQRA). The town can seek lead-agency status because it has the ability
to bring in experts to review a mining application, or to work with the
DEC to sue their experts. Even if the town does not have lead-agency status,
it would be an involved agency under the law. Involved agencies can submit
comments to which the lead agency must respond and can make their own
findings in the environmental review. These may provide a basis to reject
a special use permit on mining.
SEQRA requires conditions on permits that have adverse
impacts. These conditions can be imposed by an involved agency as well
as the lead agency, and can involve visual impacts, a community's historic
or scenic character, or the residential nature of the neighborhood. Each
of these might be deniable issues.
A public hearing on September 10 focused on technical
questions before the zoning board (ZBA). The issues concerned proper procedure
for the building inspector in forwarding applications to the planning
board for review, and the propriety of the planning board chairman in
declining lead-agency status.
At the hearing, the testimony of attorneys made the
issues seem even more convoluted, as each stood in turn to question or
qualify some assertion of the other. At times the public hearing took
on the image of a court room, although ZBA chairman Joe Roberti Sr. ensured
that the general public had its say as well as the experts.
CARES attorney March Gallagher said that the zoning
law had been thwarted in the way this case was handled. The law, she said,
calls for an applicant to meet with the planning board "to find out what
they want" before submitting its full application for a special-use permit.
Michael Moriello, the attorney for Shott Rock, asserting
that "a certain narrow set of issues" governed the public hearing. He
saw it as "a pretext to delay the project." Ignoring the timing of the
two actions - CARES' appeal to the ZBA (which happened first) and the
town's decision to change the zoning law - Moriello claimed that the delaying
tactic was commenced to give the town time to pass a new law banning mining
in this area. "That to me is unfair and improper," he said.
CARES had a different opinion. "These are not small
matters," said Patti Kelly of Hommelville Road. "They set precedent on
future applications will be handled."
The ZBA hearing brought out more information about
the alleged failure of the planning board to follow its own rules. Gallagher
said no minutes were available from the last two planning meetings. The
fact that a decision on lead-agency status was made by the chairman without
a vote by the planning board led to revelations about how decisions in
general are made by that board. In some cases, votes are not taken, or
are not recorded even if taken because no roll was called. Some citizen
input was taken at the hearing. Marjorie Greenberg Vaughn, whose family's
stone house and cemetery dated to 1727, feared for the residential neighborhood
on Hommelville Road. Dave Halberson, an attorney and 20-year local resident,
decried the lack of sufficient information for reviewing the proposal.
Allan Fisher of Hommelville cited discrepancies with recommendations in
the town's comprehensive plan.
Bill Igoe, a village resident who was at the ZBA meeting
for other reasons, rose to say that he was born on Morse Road and recalled
that the Beaverkill "used to flood and wash out the bridge" periodically.
Gerta Muellner confirmed that the flooding still returns each spring.
"The existing road can't handle the tonnage," Igoe
added, echoing concerns that had been raised by town and village officials.
Roberti closed the hearing about an hour after it had
commenced. He gave the attorneys another 20 days to submit briefs, and
said the ZBA would make its decision within two months.
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