Time to Step Up
            The timing may not be auspicious, but if there's a meeting that will define at least some of the landscape of Shandaken's journey over the next year or two, it's coming up this Friday the 13th. That's when the town board will meet in special session to decide if Shandaken will be applying for "party" status in the state's upcoming hearings for the proposed Belleayre Resort. Legal status for these hearings comes in two varieties, regular "full party", and lite or "amicus", which is Latin shorthand for "friend of the court". Full party status gives the town the right to participate in the hearings, to call and cross-examine expert witnesses, and to try and represent the interests of its citizens as best it can. Amicus status gives the town the right to submit written comments to DEC when other parties do those things. 
            It does cost more to be a full party to a major SEQRA proceeding than not to be one. Of course, the town's not the party that's supposed to be paying those costs: the developer is. Anyway we think what's likely to happen is that the board majority will vote to file for amicus status, on the basis that it's cheaper. If that's what happens, we think it'll be the wrong choice for the wrong reason.  
            Normally, the costs of a town's participation in SEQRA hearings are paid by the developer: Shandaken has such a contract in place but Crossroads still refuses to honor it.  All the studies that should have been paid for and finished over the past several years, haven't been; they've only just now begun, with some last-minute funding from DEP.  So now that we're about to enter the end-game, the "adjudicatory hearings" to determine whether what's in the DEIS is good information or something less, solid data and conclusions or ones with real problems. And Shandaken, the single most important player in the permitting process after DEC isn't likely to be suiting up, because as we'll likely be told, we can't afford to.
            Last week a joint town board/planning board/ZBA meeting was held, most unreasonably, in a 4-wheel drive snowstorm. Crossroads' consultants appeared to update the boards on changes in the DEIS over the past two years, and to answer their questions. Most of the questions came from Beth Waterman, acting planning board chair. Some good questions came from planner Charlie Frasier, from ZBA member Kathy Nolan, and from Supervisor Cross. But without the results of studies from the town's consultants, and without any of the board members having access to a SEQRA attorney to consult with, that was the sum total of input from Shandaken's government. "Lite" is the right word, especially in view of some of the very detailed critical analysis that the general public has been presenting at the project's public hearings. 
            By far the most interesting exchange of the evening came when Waterman asked Crossroads' attorney Theresa Bakner when the company would be paying its site plan review fees, the ones worked out with the company last year by attorney Drayton Grant.  Bakner's answer was fascinating: " Don't you have $50,000 from DEP for that ?" Waterman was gracious enough not to correct her, but every board member in the room knew the City's money was for SEQRA studies, not given in lieu of the developer's review fees, and that it was replacing funds Crossroads is still in breach-of-contract with the town to provide.  Bakner didn't even try to answer Waterman's very reasonable question, "when?"
            Crossroads' lawyers have long told our planning board that since no application from them for special permit and site plan review is yet before the board, no fees are due to the town under the fee schedule, and none have been paid.  They have no problem asking most of town government to come out for a presentation on the most dangerous travel night of the year, yet somehow this isn't part of the town's review. We disagree. We think the planning board's review IS in progress, that all fees should be due now and any reimbursable expenses due on billing, and that it's up to the planning board to decide how they want to spend that money, and whether or not they want to be a full party to the SEQRA hearings at no cost to the town. 
            There's good reason to think the planning board  -or the town board - might want that. Because under SEQRA law (617.3 (h), both Shandaken's planning board and the town board are obligated to begin their review "at the earliest possible opportunity"  to bring all of their concerns into the SEQRA process, and basically not to wait to be told by the developer's attorneys when it's time to start a separate, brief, site plan review job. So in our view, the continued withholding of funds for this review may have already forced the planning board into violating SEQRA law. Of course, our planners can't reasonably be expected to be aware of things like that, because they still don't have a lawyer to advise them on their obligations and their rights under SEQRA.
            The SEQRA hearings process is the central struggle for good answers and solutions for both sides here, and we think the town should be participating to the fullest extent possible. Our planning board has both enormous latitude and enormous responsibility, and we think it's time for it to step up to its job, with the leadership it has chosen for itself and with appropriate legal counsel. Both they and the town board will have much more to work with a few weeks from now when the consultant's reports come in. But if the town board doesn't act within days to secure a place to voice Shandaken's concerns, the town will lose the right to speak for, and ask questions for itself as the hearing process moves forward. We think full participation is the best way to insure our rights under home rule, and to protect the financial interests of the town as a whole and of its taxpayers. 
            Both the town board and the planning board are obligated to comment on the developer's proposal, and to each issue their own SEQRA finding for every permit they ultimately approve or deny.  The basis for those findings won't be revealed in a cursory site plan review but over time, through the whole of the SEQRA process, as they're supposed to be. We hope our town government will be a full and active participant in that process, a strong advocate for   Shandaken's taxpayers, and an open channel for some of the serious concerns that are being voiced. We think it's possible to be all those things.