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.