NYSDEC issues a Notice of Violation for Central Hudson “Gas Village” in Town of Ulster for Stormwater Discharges from Construction Activity

Back in August, we reported on the Central Hudson Gas & Electric Corporation Training Center and “Gas Village”, a new construction in the Town of Ulster. With a speedy environmental review process, the Town of Ulster Town Board determined that the project would have no significant adverse environmental impacts.

Construction on the site destroyed nearly 30 acres of forest located in the Lower Esopus Creek watershed. Complaints about stormwater, erosion and turbidity started to roll into the New York State Department of Environmental Conservation (NYSDEC) and on October 29th, a notice of violation (NOV) was issued for the projects State Pollutant Discharge Elimination System (SPDES) Permit for stormwater discharges caused by construction activity. On that very same day, another NOV was issued for another contentious local project known as “850 Route 28” also for stormwater pollution.

In the case of Central Hudson, the state wrote that, “At the time of the inspection, the water quality in the wetland was indicative of pollution from discharges from stormwater runoff related to construction activities. This is a violation of Article 17 of ECL. Please be advised that violations of the ECL are subject to penalties of up to $37,500 per day per violation.”

A final determination on enforcement is not yet known, though we are all pleased by the DEC’s initial action.

What is a State Pollutant Discharge Elimination System (SPDES) Permit?

On the NYSDEC’s website, it says that ‘”New York is rich in surface and groundwater resources”, it says on the . “Article 17 of the Environmental Conservation Law (ECL) entitled “Water Pollution Control” was enacted to protect and maintain these valuable resources. Article 17 authorized creation of the State Pollutant Discharge Elimination System (SPDES) program to maintain New York’s waters with reasonable standards of purity.

The SPDES program is designed to eliminate the pollution of New York waters and to maintain the highest quality of water possible– consistent with public health, public enjoyment of the resource, protection and propagation of fish and wildlife and industrial development in the state.

New York’s SPDES program has been approved by the United States Environmental Protection Agency for the control of surface wastewater and stormwater discharges in accordance with the Clean Water Act. However, the SPDES program is broader in scope than that required by the Clean Water Act as it controls point source discharges to groundwaters as well as surface waters”.

RESOURCES

VIEW Central Hudson “Gas Village” training facility in Town of Ulster Destroys 28 Acres of Forest (KingstonCitizens.org)

A public hearing on the abandonment of Fair Street Extension for the Kingstonian Project and Prevailing Wage

(photo by Daily Freeman)

WHAT: Common Council Public Hearing: Abandonment of Fair Street Extension for the Kingstonian Project

WHERE: The meeting is hybrid, to be held at Kingston City Hall at 420 Broadway (council chambers) and on ZOOM

Meeting ID: 814 3291 1874
Passcode: 2crVt5vzOr dial in by phone:
+1 646 558 8656
Meeting ID: 814 3291 1874
Passcode: 57325016

WHEN: Thursday, December 2 at 6:30pm. View the City of Kingston’s FACEBOOK event.

SUGGESTIONS FOR YOUR TESTIMONY: A public hearing seems premature. The city has yet to confirm whether or not Fair Street Extension can be offered for sale before discussing a public bid at fair market value.

By Rebecca Martin

Following an October 14th Common Council Finance and Audit Committee meeting, Kingston lawmakers were poised to approve a plan to abandon and close a portion of Fair Street Extension to through traffic to make way for the Kingstonian proposal, a luxury apartment development in Uptown Kingston, and the centerpiece of Kingston’s Downtown Revitalization Initiative (DRI) that was awarded by former Governor Andrew Cuomo.

Just days before the full council planned to vote, Victoria Polidoro of the law firm Rodenhausen Chale & Polidoro submitted a letter to the city on behalf of her client, a landowner in Uptown Kingston, that said if lawmakers proceeded as planned the “City will not be following the requisite procedure for the closing of a public street and subsequent conveyance of an interest in the former street bed”. That procedure included a public hearing. The firm threatened a temporary restraining order “until all statutory requirements were followed”. 

“The rights of the public in city streets are inalienable, and may only be sold or conveyed in limited circumstances” she wrote. According to Kingston’s city code and NYS general city law, “…to discontinue a City of Kingston Street, the Code first requires the City Planner to establish a list of streets or portions of streets which are no longer used as ‘public thoroughfares’ and are now vacant”, which is not the case for Fair Street Extension. “The Code then directs the circumstances under which these streets are to be offered for sale, with sale as the only provided for manner of conveying or otherwise disposing of a street.”

“There will be a public hearing before a vote”

Although the City code is clear, the differences of opinion about the process steps to abandon a street by the council has been confusing for the public. Early in October, we were told by Council President Andrea Shaut with certainty that, “…there will be a public hearing before a vote” as outlined in the City code.  However, a week later, the Council Finance and Audit Committee members passed a resolution “endorsing a plan to abandon and close a portion of Fair Street Extension to through traffic” without any discussion about the process and no mention of a public hearing. When a constituent followed up, Ward 3 Alderman Rennie Scott Childress (the democratic majority leader and chair of the Finance and Audit Committee) said “…a public hearing would be called for (only) if the City were selling or otherwise disposing of the property”.

Did Kingston’s Corporation Counsel find some clever new hook? Were our council members being placed in a position to defend their decision by saying that the process doesn’t apply to a street if it is being given away?  A local street, like all infrastructure, is a public good built on generations of investment by Kingston families. How could our city be so frivolous?

Prevailing Wage and former Governor Cuomo’s exemption for Downtown Revitalization Initiative projects like the Kingstonian

Although the City of Kingston set the original public hearing to occur on December 9th, without any explanation, it was moved up a week to December 2nd.  This move by corporation counsel was likely made to allow the public hearing and council vote to occur within the same month (as the next full council meeting is on December 7th).  The Historic Landmarks Preservation Commission will also be busy reviewing recent project changes during their December 2nd meeting (the same date and time as the Fair Street Extension public hearing) for an approval, and likely soon. All that’s left is the site plan approval by the Planning Board and variance change by the Zoning Board of Appeals. There is a sense that these approvals are being rushed and out of step, and at the expense of both the public and the process.

In a recent article in the New York State Bar Association “New York to Require Contractors to Pay Prevailing Wages on Certain Private Projects“, they write: “On April 3, 2020, New York lawmakers passed a $177 billion budget bill that significantly expanded the application of prevailing wages on construction projects in the state. While previously the payment of prevailing wages had been reserved for public construction projects only, the new bill expands the prevailing wage requirement to certain private projects for the first time in our state’s history….The law, which becomes effective on January 1, 2022, extends prevailing wages to projects that previously both sides may have viewed as “private,” where total project costs exceed $5,000,000 and where the project receives 30% or more of its total construction project costs from public funds.”

The Kingstonian project costs are well over $5 million and they are also receiving more than 30% of their cost through public funds (consider the DRI funding, grants, PILOTs).  But former Governor Andrew Cuomo slipped in an exemption for construction projects from prevailing wage requirements even if they otherwise met the foregoing criteria. Guess which ones?  “Projects funded by § 16-n of the Urban Development Corporation Act or the Downtown Revitalization Initiative making the Kingstonian currently….exempt.

Ironically, during the November Ulster County Industrial Development Agency meeting, Rose Woodworth brought up the new rules for prevailing wage. “…We don’t know the rules because there’s supposed to be a board that was set in place to define it. The prior governor never got that far and the current governor has not gotten that far yet so it’s just a lot up in the air”.

The ball is in Governor Hochul’s court, and Cuomo’s unscrupulous DRI exemption could be struck by the board that she will (or has already) established.

If we are aware of this, then it is without any doubt the City and project developers are too. It is likely motivating them to push hard to get everything in place while they are still exempt. Prevailing wage, if ever applied to the Kingstonian project, would likely make it too expensive to build.

NYCDEP holds important public meeting on Ashokan Reservoir/Catskill Aqueduct Shutdown on 11/18 at 6pm

“New York City is dumping millions of gallons a day of muddy water from its Ashokan Reservoir into the Lower Esopus Creek. For over a decade, Ulster County residents have been demanding that they find a better way to manage their drinking water supply in the face of climate change – and protect communities downstream.”

On November 18 from 6-8pm, the New York City Department of Environmental Protection (NYCDEP) and towns along the lower Esopus Creek are hosting a public meeting to provide information about Ashokan Reservoir, its operations during the ongoing Catskill Aqueduct shutdown, and an overview of the protocols that currently govern releases from the reservoir.

Although the public may not impact decision-making for the October aqueduct closure (that is scheduled to remain closed through January), it is an important (and rare) opportunity for community members to learn more and to publicly hold New York City and the NYSDEC accountable. 

We received a copy of this letter from a community member who resides on the Lower Esopus Creek in the Town of Ulster. She wrote to New York City Mayor Bill de Blasio with an invitation to tomorrow’s meeting that we are sharing with permission:

Dear Mr. Mayor, 

As you know, New York City has closed its Catskill Aqueduct for repair work through mid-January – a change that will have major effects on the Ashokan Reservoir and the region. Specifically, the Lower Esopus Creek will experience increased releases from the Ashokan Reservoir, causing damage to the stream beds and surrounding areas. We can expect erosion to the existing shoreline and turbid water that severely affects water quality, wildlife habitat and recreation. The impacts also reach the Hudson River, a drinking water source for seven mid-Hudson communities.

On Thursday, November 18, we (residents of the lower Espous) have an important chance to hear directly from the city’s Department of Environmental Protection – and to be heard.

I’m writing to urge you to assign someone to attend the meeting, or attend it yourself. Since this work is being done to benefit New York City your office should be aware of just how adversely it affects the homeowners, business owners and communities of the lower Espous Creek. I have a dual interest in this in that I reside in New York City where I am able to enjoy the clean drinking water we are provided from the Catskill region but I also own a waterfront home in the Town of Ulster in the hamlet a Lake Katrine.  My house backs right up to the Esopus Creek where we have seen massive erosion over the past two decades due in large part to the releases from the Askokan reservoir. We have all but lost our entire retaining wall and are now experiencing massive erosion including trees falling off of our land into the creek. We are not receiving any relief or any assistance from New York City or the Town Ulster. We can no longer swim or fish in the creek because if it’s high turbidity. This has gone on for decades and it’s only getting worse.

Another fact that you should know is that we do not even have clean safe drinking water. After hooking up to “city water“ a couple of years ago we quickly found out that we could not even drink the water that we are paying for. It is not the same clean water brought down from the reservoir to New York City but water from a well that has now been determined to be cancerous.  All of this is completely unacceptable and that’s why I’m bringing this to your attention.  This work is being done, in part, so that New York City can continue to receive the beautiful clean water from the Catskill region, while the communities who are continually flooded out so that New York City can boast clean drinking water don’t even have clean water themselves. 

Excess water needs to go somewhere. Without adequate planning, the reservoir is forced to discharge its waters when it fills beyond capacity – typically through controlled releases to the Lower Esopus, or spills over the reservoir. Without the aqueduct drawing down the reservoir’s waters, such events become more likely, and Lower Esopus communities are left more vulnerable to flooding. Under the current operations protocol, the combined discharges into the Lower Esopus Creek may total up to 1 billion gallons a day. When faced with the addition of such large volumes of water, the Lower Esopus will see damage, as it has in years past and a much higher level.

These new challenges add to existing ones. For years we’ve been calling on New York City to stop its massive muddy releases into Lower Esopus Creek as a solution to its turbidity problem in Ashokan Reservoir. 

The event will be located at the Frank D. Greco Senior Center at 207 Market Street in Saugerties at 6:00pm (masks will be required for any attendees who are not vaccinated).

We sincerely hope that The New York City Mayor’s office will be in attendance and support the residents and communities of the lower Esopus Creek. 

Thank you

Kingston’s Historic Landmarks Preservation Commission (HLPC) prepares Preservation Notice of Action for Kingstonian proposal

Last week, the Kingstonian project development team that includes Michael Moriello (legal), Dennis Larios (engineering) and Scott Dutton (architect) joined the Historic Landmarks Preservation Commission’s (HLPC) monthly meeting to discuss the required Preservation Notice of Action and demolition permit that the developers will need to proceed.

Click on image to watch the HLPC meeting with Kingstonian development team

HLPC chairman Mark Grunblatt outlined concerns raised in a letter dated 9/6/19 for the developers to prepare to address during their upcoming presentation and public hearing in January.

They include:

  1. Clarifying the boundaries of the Historic District and whether or not they cover Schwenk drive;
  2. A plan to preserve and properly handle any archeological artifacts found during demolition and construction by a certified archeologist professional;
  3. Addressing visual impacts to the historic district and surrounding area;
  4. Address potential damage to neighboring properties when demolition and construction begins.

City of Kingston Assistant Corporation Council Dan Gartenstein noted that the project’s State Environmental Quality Review (SEQR) negative declaration decision had fully resolved several of the issues identified by the chairman that evening, and that the Preservation Notice of Action items would pertain to some items such as visual impacts and demolition.

Dutton said that the team is working to define their plans and that they were not making any dramatic changes, only refinements and improvements to the visual and facade, to take it to “another level”. Moriello added that there would be no dramatic moves, and that although SEQR had concluded, the applicant could continue on with visual impacts and analysis.

Gartenstein said that according to the City of Kingston’s code 405-49 (Building Permits), the project would require an application for a building permit for demolition, and that the building safety division would notify the commission, who would reply to the request for demolition.  When asked if a demolition permit had yet been requested, the Kingstonian attorney answered that it had not.

As a side note, we would be remiss if we didn’t point out the irony that while the Friends of Historic Kingston (located only blocks away from the Kingstonian project) and others host exhibits mourning the demolition of the Kingston post office and urban removal, we continue to tear down buildings and this time, in the heart of Kingston’s historic district. “History teaches us that we learn nothing from history” is fitting here.

The Applicants’ attorneys will prepare information to present to the commission and members of the public regarding the necessity to demolish the building at the next HLPC meeting on December 2. Moriello pointed out that according to 405-65 (d), a public hearing will be required, suggesting that the presentation and public hearing could all be held on the same day. City of Kingston Planning Director Suzanne Cahill said that the city should hold off scheduling a public hearing until the materials were released, and that it would not be fair to the public to not have those materials in order to make comments in December.

A public hearing will likely be set in January, 2022. The Commission tabled the application until their next meeting on December 2.

ADDITIONAL SELECTED RESOURCES: by historic preservation specialist Marissa Marvelli

2/27/20: The State Preservation Office does about-face for Kingstonian project amid political pressure

11/15/19: Planning Board sees no potential impact on character of Stockade District by Kingstonian Project (with video)

9/26/19: The Kingstonian to be Jointly Reviewed Tonight; State Preservation Office Finds ‘Adverse Effects’ in its Evaluation of the Project; Confusion about Historic District Boundaries

7/28/19: Building on the past: the Stockade District’s tipping point (HV1)

9/1/18: GUEST EDITORIAL: Beyond ‘Streamlining’ – Improving Kingston’s Preservation and Heritage Programs

An Update on the Fate of Fair Street Extension and the Kingstonian Project

Click on the image above to read the full letter from Rodenhausen, Chale & Polidoro

As readers are aware, in order for the Kingstonian project to proceed, they will need to take over two public properties that are in the midst of very different processes. The first, a parking lot located on 21 North Front Street that the city has been working to transfer to the Kingston Local Development Corporation to handle the sale, which will be contingent on the Kingstonian’s project site plan approval by the Kingston Planning Board.

The second, Fair Street Extension that serves both as a pedestrian walk and public street. This item began moving through committee in October, where the Kingston Common Council’s Finance and Audit Committee “…endorsed a plan to abandon and close a portion of Fair Street Extension to through traffic” for the Kingstonian’s proposed luxury apartment development. The full council is set to vote on this item next week.

Then, on Friday afternoon (11/5), the City of Kingston’s Corporation Counsel received a letter from Victoria Polidoro of the law firm Rodenhausen Chale & Polidoro regarding the city’s plans for 9-17 & 21 N. Front Street and Fair Street Extension, threatening a temporary restraining order.

“Based on the discussion during the Finance and Audit Committee meeting (see below) and the lack of a public hearing notice for November 9, 2021, my clients are concerned that the City will not be following the requisite procedure for the closing of a public street and subsequent conveyance of an interest in the former street bed…our clients are prepared to seek a temporary restraining order from the Ulster County Supreme Court preventing the City from discontinuing and conveying an interest in the Fair Street Extension until all statutory requirements have been followed.”

In the letter, Polidoro outlines the process and procedure for closing a public street and conveyance of public land. “The rights of the public in city streets are inalienable, and may only be sold or conveyed in limited circumstances.” wrote Polidoro. “To discontinue a City of Kingston Street, the Code first requires the City Planner to establish a list of streets or portions of streets which are no longer used as “public thoroughfares” and are now vacant.”

Code §355-56. The Code then directs the circumstances under which these streets are to be offered for sale, with sale as the only provided for manner of conveying or otherwise disposing of a street: “The [Common] Council shall determine whether the street is of public use or whether it is in the interest of the City of Kingston to sell such street.” Code §355- 58. Property descriptions, assessments, public hearings, and ultimate approval of any deal to sell the public street by the Common Council and Mayor are required before a public thoroughfare can be conveyed. Code §355-61-63, -65. The City must hold a public hearing on ten days’ notice regarding the proposed sale before it can be approved. Code § 355-62.

The Kingston Common Council will likely discuss their anticipated vote on the Fair Street Extension conveyance and easement to the Kingstonian developers during their caucus on Monday, November 8. If they foolishly proceed as previously planned, they will vote on this item at the full monthly Common Council meeting on Tuesday, November 9.

Click on the image to review this and all proposed resolutions on the Kingston Common Council’s agenda next week.