the 12 separate findings indicates the judge’s decision that
information provided on the subject in the project’s Draft Environmental
Impact Statement and additional testimony was inadequate to allow
the project’s permitting to go forward. Each of these issues
has now been determined legally “substantive and significant,”
and will require extensive review through what amounts to a formal
trial-like proceeding with sworn testimony and cross-examination of
witnesses. That process, generally lengthy and costly for all involved
parties, is now likely to commence sometime this winter or next spring.
The scope of issues requiring adjudication was, by consensus amongst
the parties to the proceedings, unusually large. Plans for the region’s
only similarly scaled project, the $350 million St. Lawrence Cement
plant proposed for Greenport which had 6 issues ruled adjudicable,
were cancelled in April after a major permit was denied by the Department
of State. And while the full implications of last week’s decision
are still being sifted, all parties reached for comment regard it
as enormously problematical to developer Crossroads Ventures.
“With this ruling, Judge Wissler has sent a clear message that
the environmental review of a project of this scale and scope must
be totally comprehensive and highly detailed,” said Marc Gerstman,
lead counsel for the 11 local and regional environmental groups of
the Catskill Preservation Coalition which raised and presented most
of the issues now successfully challenged. Gerstman, a former lead
counsel for DEC, characterized the ruling as “a forceful and
dramatic pronouncement for a careful, deliberate process of environmental
review as mandated by state law.”
“My opinion of the tedious and attenuated intricacies of the
DEC challenge process has not changed,” said Crossroads Ventures
managing partner Dean Gitter in a statement responding to the decision.
“It is a constant drag on the economic fortunes of our state
and should be revisited and amended by the legislature…We believe
in the importance of this cause. We intend to appeal to the Commissioner
of the DEC for reversal of several of the judge’s rulings. And
we will continue to fight our way through this outrageous and endless
SEQR process until we have totally satisfied those in positions of
responsibility that our project is both environmentally sound and
The subjects covered by Wissler’s ruling include virtually all
areas of potential impact from those governed by hard science and
data to the full range of social, economic, and community related
issues. Each ruling systematically outlines the positions and major
arguments presented by the parties at the project’s SEQR Issues
Conference, held over 28 days of hearings in Margaretville in the
summer of 2004. In his decision, those arguments are followed in format
by the judges’ analysis of them in discussion form, and by his
ruling on each of the issues.
The first issue designated for adjudication was Water Supply for the
Big Indian Plateau portion of the project, on the basis that testing
performed for Crossroads Ventures appeared to prove that available
water may actually be inadequate and projected yields from its primary
underground sources may be unsustainable. It also appears to reflect
concern that pumping at the proposed rate of 190,000 gallons per day
from two wells just east of Pine Hill Lake at the base of the project
site could have the effect of drawing down residential wells for many
miles surrounding the project site. Closely related was the issue
of Aquatic Habitat, where the possibility of the destruction of trout
fisheries in Birch Creek and Emory Brook might also result from the
same groundwater pumping to service the eastern half of the resort.
Stormwater Impacts was as widely expected ruled adjudicable, one of
only two issues, along with Secondary and Induced Growth, where testimony
from New York City’s DEP played a significant role. In his analysis
of stormwater data, Judge Wissler noted major problems with the adequacy
of the project’s computer modeling, verification of field data,
stormwater flow paths and pre-development flows, pollutant loading
levels, and other issues. Problems with secondary growth according
to the judge, include “reliance on inappropriate case studies
and computer modeling” related to housing data.
Impacts to the Catskill Forest Preserve will be adjudicated because,
according to Wissler, the project’s DEIS “lacks the discussion
and evaluation of impacts” to public lands “necessary
for an appropriate SEQRA review.” Impacts to Wildlife were “for
the most part… adequately evaluated and…where appropriate,
mitigated” but will go forward to adjudication based on lack
of adequate study for 4 potentially impacted bird species. Noise Impacts
were adequately addressed for construction phases of the project but
will require adjudication due to “lack of a noise impact study
addressing the operational phase of the…project.” Visual
Impacts, whose analysis was deemed “not thorough enough”
will be included because of the developer’s “failure to
provide” a required inventory of aesthetic resources and “failure
to consider the effect of seasonal changes in viewsheds.”
Traffic Impacts are set for adjudication, based on the project’s
failure to factor in “the effect of planned growth” of
the adjacent Belleayre Mountain Ski Center. Similarly, Cumulative
Impacts between the Ski Center and the resort intended to surround
it will also be adjudicated, with Judge Wissler rejecting arguments
by his own agency’s staff that because they’ve so far
withheld release of the Ski Center’s new Unit Management Plan,
its projected growth doesn’t need to be factored into planning
for the resort. Apparently it will need to do that going forward.
And the broader issues of the project’s impact on Community
Character including all economic costs and tax impacts will go forward
to adjudication...as will the required consideration of Alternatives
to the resort as currently proposed, including scaled-down versions
of the project which thus far Crossroads Ventures has refused to provide.
“The Belleayre Resort holds the best promise of a viable economic
future for the people of Shandaken,” said Crossroads’
Gitter in a final set of comments provided before this story’s
deadline. “Those taxpayers will soon be opening their September
school tax bills. They will find an increase of 10%. They’ll
probably find a similar increase next year. Were the Belleayre Resort
in existence –which it could well have been at this point but
for the intervention of local not-for-profit groups – that school
tax bill would have annually been going down, not up.”
“It is a good sound bite,” responded CPC’s Tom Alworth,
“but I’m hard pressed to think of a place where there
was increased development and taxes actually went down. The judge
who conducted an independent evaluation of the environmental impacts
of the project has recommended 12 issues move forward for further
examination, and therefore, in his opinion, the project has not met
the required standards.”
Said Gitter, “We have been disappointed in the manifest ill-will
and self-importance of these opponents who seem to have no regard
for the economic circumstances of the town and its shrinking tax base.
They have struck a blow not just at Crossroads, but at all the tax-payers
of Shandaken and Middletown. Those foolish enough to be publicly rejoicing
at the current turn of events are, in fact, once again thumbing their
noses at the people of this region who still struggle to get by.”
“The Judge,” responded CPC counsel Gerstman, “sent
a clear message that the project sponsor should look inward and not
seek to cast blame on others.”
The deadline for appeals to Wissler’s rulings, following a Sept
9 conference call between the judge and all parties, has been set
for October 12, with reply briefs to any appeals filed due November
7. As to possible challenges to the rulings apart from Crossroads’,
DEC staff, according to agency spokesperson Maureen Wren, are still
reviewing the judge’s decision, as are counsel Jeff Baker and
Kevin Young representing the Coalition of Watershed Towns, Delaware
County, and the town boards of Shandaken and Middletown, all strong
supporters of the project as presently proposed.
Following receipt of appeals to the ruling, any filings and reply
briefs would normally be sent to DEC’s Commissioner for a final
decision; in this instance since Acting Commissioner Denise Sheehan
has had prior involvement with the project, she has recused herself
and designated Deputy Commissioner Carl Johnson to serve that role.
After a decision on any appeals has been rendered and a discovery
process undertaken, the actual adjudicatory hearings will be scheduled,
proceeded by pre-file direct testimony from what promises to be a
enormous lineup of expert witnesses. The time frame for these introductory
phases of the hearings process is indeterminate, and there are no
time frame parameters either for the actual hearings, various briefing
periods, or any ultimate decision by DEC on the outcome.
“As we have always maintained, we will see the process through
until everyone is satisfied with the environmental bona fides of our
project,” said Gitter.”The project perseveres.”
Previously, Gitter has announced the company’s intention to
sell the permits for the project, if granted, to a major international
resort operator as yet unnamed.
Judge Wissler’s ruling is available in its entirety at www.phoeniciatimes.com.
Those that want to see the maps of the district, including
the proposed layout of the mains, can view them at the town clerk’s
office at town hall.
The $11 million is coming free from the City of New York, but the
estimated $375,000 annual operating budget is only partially funded
by the big apple, which would kick in $82,000 toward that annual expense.
That leaves another $292,500 to be flushed out of the community to
keep the system running regularly.
On Monday, September 12, Attorney Kevin Young walked a crowed town
hall through the details of the ordinance. He explained that it would
cost each home $100 a year for the service and businesses, actually
called non-households in sewer speak, would pay a minimum annual charge
of $200, plus pay more depending on what amount they actually discharge
into the system.
Young figures a non-household using 150 gallons of water a day would
pay a total of about $455 a year for the service.
And if someone didn’t want to hook up to the system, they could
go to the town board and ask for a variance from doing so at no penalty.
Young noted that there needed to be some compelling reason for the
variance however, and used the example of a restaurant already having
a new private septic system recently installed. In that case, the
restaurant could delay hooking up for several years. However, they
run the risk of not having an opportunity to hook up if others get
The system is only big enough to handle the existing hamlet with room
for only minor expansion. Once it operates at capacity, the gates
to new users are closed. The goal, Young said, is getting the system
to run at as close to full capacity as possible because when it does,
it will operate more efficiently.
“These systems need crap,” he noted.
Speaking of new users, they will be charged a hook up fee of $3500.
The example used was a vacant hamlet lot. Since there is no building
on it, the town will run a hook up line, called a lateral, to the
property line and leave it. If at a later date someone builds on the
lot, they can hook up for the $3500, unless the system is already
There are more costs too. For everyone. Young figures that it will
cost between $800 and $2000 to continue a hook up from the property
line to your home or business, plus complete the mandatory disabling
of your current septic system or cesspool.
The town is going to apply for funding to help income eligible citizens
pay for the hook up. Project Engineer John Brust said that for those
who don’t qualify for those funds, there may be a surplus from
the projects construction budget that would be used to help pay.
Other costs involve the $100 a year fee for households only staying
at that rate for three years and then getting adjusted for inflation.
Also, the town has the ability to add an extra charge on users to
build a capitol improvement fund. While they have not done so yet,
it is under discussion.
Town Justice Bart Guglielmetti, also a hamlet resident, noted the
risk of the district being socked with severe penalties in the future
should something go wrong. He reminded Young that the Phoenicia water
district was under threat of being fined $10,000 a day unless it built
a water filtration plant, which it finally did last year. The district
just borrowed $55,000 to help pay for the plant.
Another sobering thought came from one resident that theorized that
property values would go up as a result of having a sewer system.
Therefore, she asked, would property taxes go up as well?
Young’s answer was yes. He assumed that Phoenicia properties
would be reassessed once the system is complete.
“Remember, higher property values is a good thing,” he
The Phoenicia sewer committee, which handles all the sewer issues
and is responsible for preparing the project, meets the second and
last Tuesday of each month at town hall.
Committee Chair Charles Frasier urges everyone to attend.
“The more input we get from the community the better the system
will be,” he said.
To A Great Start!
The growth, she says,
is partly through students entering Phoenicia from other areas via
variances, but moreover because of new families moving into the Shandaken
area, drawn by its promise as one of Ulster County’s best rising
Having a good elementary school, she says, is helping that reputation.
As for special programs at Phoenicia this year, Sella was particularly
excited about a pilot reading program, Balanced Literacy, being led
by several district-wide elementary teachers who attended a special
reading/writing program at Columbia University this past summer.
According to Onteora’s director of elementary education Laurie
Cassell, who doubles as the principal of the Bennett Elementary School
in Olive, “Everything’s been sparkling,” said Cassell,
of both the weather and the extra shine the district’s elementary
schools’ teachers put on their classrooms just before students’
first arrivals last Tuesday, September 6.
Cassell spoke about how she’s looking forward to the fact that
the three elementary school PTAs are getting together more now as
a district-wide PTA Council, seeking to increase collaboration and
togetherness between the sometimes disparate parts of the wide Onteora
On September 30, she said, the PTA Council will be putting on a special
concert at the newly renovated Junior/Senior High School auditorium
within sight of Bennett, featuring The Uncle Brothers, a group Cassell
says is “really very hot in kids circles.” The concert
will start at 7 p.m.
Onteora superintendent Justine Winters said that district-wide, the
recent semester opening had a bittersweet quality, due to the death
of a high school student in a car accident over the Labor Day weekend.
The result was “a somber mood” at the high school.
But Winters also noted that, having rode the school buses the afternoon
of the first day, she’s got nothing but kudos for Onteora’s
new transportation director, Maureen Stancage.
She further noted that last year’s worries about overcrowding
at the Woodstock Elementary School, which incorporated the student
body for the now-closed West Hurley School last year at this time,
had apparently abated with a lesser enrollment than expected.
“Bennett and Woodstock are almost equal in terms of enrollment
now,” said the superintendent. “We’ve got a nice
balance between our elementary schools right now.”
Cassell said that as director of elementary education, she and the
other school principals are “looking forward to meeting the
challenges of the ‘No Child Left Behind’ act, which are
mandating new tests in grades three through eight.”
Sella said she’s looking forward to hosting the Board of Education’s
next meeting at Phoenicia on Tuesday, September 20, and getting more
of the local community involved in school life, on a Phoenicia School
and district-wide level, over the coming year.
“We’ve got many exciting things on our horizon,”
she said. “It’s looking like it’ll be a great year.”
Of Our Motoring Era
We caught up with Kunstler, a friend, this past week after gas prices
rose well above the once-taboo $3 a gallon mark, after everyone started
assessing the Katrina damage, and cost of Gulf Coast reconstruction,
in figures well over the equally taboo $150 billion mark.
We wanted to find out what Kunstler felt, seeing things he’d predicted
reported as news.
“How should I put this, it isn’t the end of the world as
we know it but we can see that end from here” he said by phone
from his Saratoga home, where he’s been fielding a slew of radio
interviews all week. “Americans can now feel the pain. The issues
I’ve been raising about us all being nearer the end of the Easy
Motoring era are getting a lot of attention.”
As for the hike in prices, Kunstler feels there will likely be a correction,
albeit not one going under the $3 benchmark again.
“Once that psychological level was breached, retailers won’t
go back,” he said. “Besides, all this reserve material they’re
releasing, sour crude versus sweet crude, can’t be handled by
most of our existing refineries.”
Kunstler, whose book caused its first big stir when excerpted in Rolling
Stone, then heavily blogged, this past Spring, sighed for a moment before
“More to the point, I think what you’re going to see is
that the natural gas prices – and you have to remember that 50
percent of our housing is heated in such a way these days – that’s
the area where these costs will really be hitting in three or four months,”
he added. “That’ll end up combining with the high pump prices
to really knock the middle class on its ass.”
Explaining the natural gas market, Kunstler (who regularly blogs himself
at www.kunstler.com) pointed out how such prices have already risen
from a 2003 level of $3 a unit to a current price of $12 a unit, now
expected to jump another $4 in the coming weeks.
“Watching all this unfold, I’m not sitting here trying to
prove I’m right,” he says. “But what’s happening
is an exqulisite example of what the subtitle of my book’s all
He talks about how our lack of planning for a future beyond oil dependence,
along with suburban sprawl and bad environmental policies, has left
us all susceptible to a vortex of problems that will just keep getting
“It would be tragic, for example, for the people along the Gulf
Coast to now be led into re-investing whatever wealth they have left
in this same form of infrastructure that has no future,” Kunstler
says, in measured words. “People have to start re-thinking where
they live, not in terms of regions but in terms of how far they commute
each day, how far they are from both essential services and agriculture.”
“There’s just so much potential right now for disruptive
events of so many kinds,” he added. “Maybe we shouldn’t
expect a slow and steady march into the Long Emergency of our oil supplies
ending any more. Maybe, once we get past this blame-orama phase, we
need to really start looking at how we all live in this country.”
Kunstler pauses, before entering a new subject we’ll not go into
here: the liquidity, or lack of same, of our nation’s mortgage-based
“What it all adds up to,” he says, “Is the end of
this Easy Motoring age. Get ready...”