Marc S. Gerstman, Esq.
313 Hamilton Street | Robinson Square
Albany, NY 12210
December 26, 2006
Donald Alger, Chairperson, and
Members of the Planning Board
Greenport Town Hall
600 Town Hall Drive
Hudson, New York 12534
Re: Application of Widewaters, Greenport
Dear Chairperson Alger and Members of the Board:
This Law Office represents the Greenport Neighbors, an association of Greenport and other Columbia County residents, concerning the proposed application by Widewaters for a retail development at Route 9 in Greenport. Widewaters seeks Site Plan and Subdivision approval from the Town of Greenport Planning Board for a proposed retail development of approximately 565,000 square feet (SF) on four existing parcels totaling 128.2 acres in the Town of Greenport, along Rte. Route 9 just south of Joslen Boulevard. This would be the largest retail development ever proposed in Columbia County. It is our understanding that, according to the latest proposal, the development is planned for three primary retail tenants with store sizes of 184,212 SF (revised from original 195,000 SF), 103,000 SF and 69,000 SF respectively with an additional 60,000 SF of outdoor retail space, along with more than 15 small and mid-sized retailers, 3 restaurants, and possibly a gas station.
By Resolution dated June 27, 2006, the Planning Board Resolution correctly determined that the proposal is a Type I action under SEQRA. The Board also declared itself to be lead agency and also listed the involved or interested agencies, but this list did not include the New York State Department of Environmental Conservation (DEC) or the City of Hudson. The Resolution further directed that a Lead Agency Coordination letter would be circulated among various involved or interested agencies. To date we have been unable to confirm whether the lead agency letter was sent and what application materials were included.
In an attempt to understand the scope of the proposed application, members of the Greenport Neighbors have reviewed the applicant’s Environmental Assessment Form (EAF) and as many of the current documents and plans related to the project as they have been able to obtain from the Town. Unfortunately, some of the documents requested at the Town Hall by members of the group have not been made available for public review. However, based on the information that has been reviewed, it is apparent that the application is currently incomplete. Due to the scope of the application and the issues and questions raised below, additional public scrutiny is warranted.
A. The Board should issue a Positive Declaration under SEQRA in this matter.
The Town of Greenport Planning Board should issue a Positive Declaration for this proposed action. An Environmental Impact Statement (EIS) should be prepared if the proposed action may significantly affect the environment. As a Type I action, there is a presumption of significance. Even where there is a good faith effort by the applicant and the lead agency to modify the project to avoid and mitigate potential environmental effects, a lead agency violates SEQRA by failing to require an EIS. As this State’s highest court has explained: “The environmental review process was not meant to be a bilateral negotiation between a developer and lead agency but, rather, an open process that also involves other interested agencies and the public.”
Here, the magnitude of this project alone would seem to require such action. Notably, on information and belief, this Board has required an EIS for significantly smaller projects. In addition, a considerably smaller Widewaters development in the Town of Kinderhook was subject to the EIS process. Furthermore, as detailed below, the Greenport Neighbors have many questions concerning the accuracy and completeness of the Application, including the EAF, that could only be addressed in the EIS process. Pursuant to Section 101-6 of the Greenport Town Code, the Board may retain professional consultants to assist with its review of the Draft EIS at the applicant’s expense.
Without the benefit of an EIS and the public review process it entails, the Board would be unable to meet the “hard look” requirement of SEQRA and satisfy the public that all relevant issues have been fairly and accurately examined and weighed before a decision is made. In the EIS process, the public would be afforded the opportunity to better understand the full scope of the project, its potential environmental and economic impacts, whether it complies with the Town Code, and whether it places costly and/or unnecessary burdens on Greenport. The Town and members of the public would be provided the opportunity to seek additional information and retain independent experts to evaluate the Applicant’s claims and conclusions.
Scoping and the public’s involvement would aid the Board in making an informed decision by apprising the Board of concerns of the people who live here. Outside experts are not always aware of the immediate issues and concerns of residents affected by developments such as the one proposed. Expert analysis, although critical, cannot replace the public’s personal knowledge of local issues and the law recognizes this. Thus the EIS process would allow the Board to take advantage of the combined knowledge of the area’s residents.
An EIS would allow the Planning Board, involved and interested agencies, and the public to address the potential significant adverse environmental impacts in depth and include the opportunity to explore reasonable alternatives and mitigation. SEQRA also instructs the lead agency to consider the reasonably related long-term, short-term, direct and indirect, and cumulative impacts, including other simultaneous or subsequent actions that may result from the action, are dependent on the action or included in any long range plan of which the action is a part. For example, if it is determined that the impacts associated with such a large retail development may significantly increase traffic, either singly or along with other pending or proposed projects, the lead and involved agencies may impose conditions to help alleviate the related impacts, including mitigation fees which are reasonably related to the impacts identified in the EIS. If the EIS reveals that the infrastructure or level of community services necessary to support the development does not currently exist in the Town, reasonable conditions can be imposed to ensure that there is a means to provide the infrastructure or community services.
B. The current Application is incomplete and inadequate in addressing the potential impacts of the proposed action.
Pursuant to Town of Greenport Code Section 101-4, a site plan application should demonstrate the adequacy of vehicular and pedestrian traffic access and circulation, water supply and sewage disposal, stormwater control, buffering of the use from adjacent neighbors, and the compatibility of the design with the existing community character. Currently, the Application and supporting documents does not demonstrate compliance with the Town’s requirements and does not adequately address all potential impacts, either within Greenport or in adjacent localities. For example, the EAF does not address potential economic and social impacts of the proposed project on the Town of Greenport including impacts on taxes, increased costs for increased municipal services and infrastructure, decreased revenues for existing businesses, loss of jobs in these businesses, increased burden on local schools and perhaps on available or future housing supply.
In addition, the Application does not adequately address potential impacts to the adjacent municipalities of Stottville in Stockport, Claverack, and the City of Hudson. Each of these municipalities and those as far north as Stuyvesant and as far east as Ghent, and perhaps Chatham, could be affected by some or all of the following: increased traffic, increased noise, increased intrusive lighting, and dramatic changes in community character.
In addition, based on the review by the Greenport Neighbors of the application materials available to them to date, the following deficiencies were noted:
Please see attached “Documentation Needed from the Town of Greenport”
1. The traffic study prepared by Chreighton Manning Engineering LLP (EAF, Appendix D) is inadequate. The Applicant should be required to undertake a traffic study that reflects actual conditions and traffic patterns that would be affected by the proposed shopping complex along the length of Route 9 and feeder roads in the County.
a. It has been well-documented that malls with big-box stores generate major increases in traffic, and that the extent of these increases are directly related to the size of the stores. The proposed Widewaters complex includes three big-box stores that are quite large and will surely generate a significant increase in traffic along roads already facing traffic problems.
b. The study area in the Traffic Impact Study (EAF, Appendix D) does not include all of the roads and intersections that can be expected to experience increased traffic volumes. The study area included just two intersections and a mall entrance (US Route 9/CR 20, Rte. 9/Joslen Boulevard and Rte 9/Greenport Town Center). But traffic impacts from a project of this size obviously do not begin and end at the boundaries of the property. Traffic impacts will be felt on other roads leading to the proposed site within and outside of Greenport.
c. There are four major intersections with traffic signals along Rte. 9 from 23B in Hudson to Livingston Parkway (Rte. 9/23B; Rte. 9/Healy Boulevard; Rte. 9/Joslen Boulevard at the southern end (beginning) and Rte. 9/Livingston Parkway). All can be expected to experience increased traffic volume if this complex is built.
d. There are a number of residential roads in Hudson that intersect with Route 9 quite near to the proposed project that do not have traffic lights and were not included in the study but are also likely to experience increased traffic due to the project. These include Bayley Boulevard, Glenwood Boulevard, Parkwood Boulevard, Oakwood Boulevard and Graham Avenue among others. There are also a number of smaller streets in Greenport that also intersect Rte. 9.
e. There are the roads in other towns that feed into roads that enter Greenport. Stottville Road, NYS 9H, 23/23B between Claverack and Greenport/Hudson, NY State Route 66 and Fish and Game Road are among those that bring people and goods into and out of Greenport. Increased traffic on these roads can be expected if this project is approved. The impacts of increased traffic therefore go well beyond the boundaries of the Town of Greenport. The Applicant’s traffic study neglects all of these major roads and critical intersections such as Stottville Road/NYS 66 in Claverack, Stottville Road/Route 20 in Stottville, Post Road/Route 20 at NYS 9H in Ghent and others along these major roads. Therefore the traffic study should be expanded to include these affected roads and these affected municipalities. If these are not included, but mitigations are later found to be needed who would be responsible for the costs?
f. By correspondence dated December 20, 2006, the County Planning Board recommended a more comprehensive traffic study.
g. The study was conducted in August (August 24th and 27th, 2005), a month when traffic flow is known to be extremely light, thereby producing artificially low numbers for traffic volume and hence, understated traffic impact even in the area studied. The Applicant should be required to undertake a traffic study at a time of year that would more accurately reflect normal and usual conditions.
h. The traffic study does not consider any future residential development. However, there are at least four residential developments either proposed, approved or under construction.1 Proposed: Holmes Estates, a 100+ unit residential subdivision, north of the intersection of Rte. 9 and Route 20
2.Proposed: Morningstar Estates, a senior community of 228 homes at 9H/66 in Claverack
3. Approved: Senior housing off Joslen Boulevard
4. Under construction: Apartment complex of 24 units under construction on Route 20.
2. The Applicant’s proposed traffic mitigations are potentially inadequate.
a. A more comprehensive traffic impact analysis covering all affected areas under more typical traffic conditions would likely demonstrate the need for additional mitigations including road improvements and additional traffic signals.
b. The Applicant has only taken responsibility for the cost of currently recommended road and signal changes based upon the inadequate traffic study. If this shopping complex were to be approved and built without the above mentioned traffic impacts being assessed and the necessary mitigations required, the Applicant would not be responsible for mitigations needed after approval.Will the Town, other towns or the County be responsible for these? The Board can protect the taxpayers of Greenport and indeed the rest of the County from having to pay for such potentially necessary improvements by keeping the Applicant accountable now during the review process.
3. The Applicant has neglected to consider the impacts on community character in Greenport and in neighboring communities.
a. If, as the Applicant suggests, the existing Wal-Mart in Greenport Town Center would relocate to the Widewaters site (Appendix D, Traffic Impact Study, page 1) what will become of the existing Town Center site? If there is no viable tenant for this site will it become an abandoned eyesore? The Town Center Wal-Mart occupies approximately 120,000 SF, or 60% of the Town Center plaza (Columbia County Real Property Services Assessment). What will happen to the two other retailers in the Town Center? If either goes out of business, what is the likelihood that other retailers would fill the empty spaces? What would happen if the Town Center were to become a partially or totally vacant strip mall? It could become a more fully built-out version of the steel structure that now stands on the proposed Widewaters site, albeit with greater opportunity for mischief and vandalism.
b. The proposed site borders on established residential neighborhoods in Greenport and Stockport and agricultural land in Claverack. Although Greenport already has strip malls along Route 9, such land use is incompatible with the residential and agricultural character of its neighbors. In fact, land in both Stockport and Claverack that lies in close proximity to the proposed shopping complex has zoning in which “shopping centers” are explicitly a prohibited use. The proposed site, presently undeveloped, actually provides a buffer between the strip malls to the south and the residential properties north of the proposed site. Greenport has a responsibility in considering the proposed project to ensure that it does not infringe upon and adversely impact the right of the residents to the enjoyment of their property.
c. The Applicant’s proposal does not include analysis of the visibility, potential noise impacts or light pollution on its neighbors in Greenport or adjacent communities. These impacts need to be identified and the Applicant must undertake appropriate mitigations. Such mitigations would include vegetative buffers, appropriate noise levels and times of day, low impact lighting. The Applicant has agreed in principle to some mitigations and changes. These should be specifically laid out in the Plan before the Board. We, the public, are unaware that such specifics have been included in the official submission before the Board.
4. The Applicant has failed to address potential positive or negative economic impacts on Greenport and the County. The EIS process would enable the public and the Board to carefully examine these potential impacts and make reasonable judgments based upon review of data rather than on personal belief or inclination.
a. Although promising increased tax revenue for the Town, the Applicant has neglected to provide the data to substantiate this claim. The Planning Board must not take the Applicant‘s word for this important assertion. Instead the Board should require such data and it must be reviewed carefully. Numerous studies have shown that the impact of large commercial developments such as the one proposed ultimately have negative economic consequences for their host communities. Greenport Neighbors is submitting published reports from reputable and credible experts (Key Studies in Big-Box Retail, Impact of Big-Box Stores on Existing Jobs, Locally-Owned vs. Chains: The Local Premium, Impact of Big-Box Stores on Traffic). We recommend however that Greenport undertake a study of its own rather than relying upon Applicant’s assertions and potentially empty promises.
b. It is well known that malls such as the one proposed can have a devastating effect on existing smaller local businesses. (See Key Studies, pp. 3-4, Existing Businesses). How will this project impact long established and smaller businesses here? For example, what would be the impact of a 103,000 SF home improvement store on Dunn’s Lumber, Williams Lumber, Aubuchon and even Herrrington’s? How would business change at existing local and chain restaurants in competition with other national chains that would fill the new restaurant spaces? How many of the restaurants and retailers now serving the area would simply move their businesses to the new location, leaving empty retail and restaurant space? At the Widewaters development in Kinderhook, four of the seven small retail establishments are existing businesses that relocated to the new site. They do not represent incremental new business. And despite Widewaters’ pre-approval promises of increased competition and therefore choice for consumers, there soon will be only one supermarket in Kinderhook. The same could happen here.
c. Communities that host large retail complexes such as the one proposed often experience a decrease in property tax revenue as housing values near the complex decline due to traffic congestion, noise and general adverse impacts to the character of residential neighborhoods. (See Key Studies, pp. 6-7, City Costs)
d. The Applicant projects that this retail complex will generate 400 full-time and 400 part-time jobs. The Applicant has not been specific as to whether these numbers refer to incremental new jobs or merely jobs in the new shopping complex. This specificity is important in determining the true economic impact of jobs created. If the existing Wal-Mart moves to the Widewaters complex would it not be expected to carry with it all its current jobs? Are these jobs included in the projected 800? If so the projected 800 jobs is an inflated number. A fuller study of this proposal would require data on the number of net new jobs that would be created. What exactly would be the number of incremental new jobs and where is the labor force to fill them. The Board must determine the answer to questions such as this in order to adequately address public concerns. (See Impact of Big-Box Stores on Existing Jobs)
e. The County has an extremely low unemployment rate. The Applicant has provided no data to justify the assertion that the proposed project will create new jobs for residents. An article in The Independent (“Help Wanted: Local Restaurants Get Creative Trying to Find the Staff They Need,” by Lynndee Kemmet, Tuesday, October 10, 2006) makes this very point. There do not seem to be enough qualified unemployed local people to fill these jobs and retention is an additional problem for business owners. If these jobs are to be filled by out-of-County residents the Applicant should be required to provide data to show the costs to the County of “importing” the labor force. For example, typically the costs of private transportation are prohibitive for workers to travel distances to fill the types of low wage jobs that are provided by such a shopping complex; the cost of fuel in particular and of maintaining an automobile in reliable working condition makes it almost impossible for people to commute for such employment. Will public transportation be required? At what cost? Or will these new workers move into the Town and County? What then would be the economic impact on schools, housing (the need for affordable housing in particular) and County services? (See Key Studies, pp. 6-7, City Costs)
f. The customer base in the Town or County would not increase dramatically with the construction of this shopping complex since the population is not increasing dramatically. Shoppers as close as 5 or 10 miles from the proposed site have other choices for the same Wal-Mart or Lowe’s (or comparable stores) since these two are already being built in Catskill. It is unreasonable to expect that shoppers will cross the bridge and pay a toll to shop at the Widewaters complex, at least for these two establishments. Furthermore at the farther ends of a 10 mile radius from the proposed site there are shopping opportunities in Albany, Kingston and even western Massachusetts that would provide an equally, if not more satisfying shopping experience. If the Applicant is using the full County population of approximately 66,000 to make sales projections these are probably highly overstated. The more likely customer base would be drawn from the approximately 30,000 residents in the more immediate Hudson/Greenport area. It is therefore highly unlikely that the sales revenue generated by this complex would add much incremental revenue or sales tax. It is more likely that new sales would replace sales at existing businesses, and therefore come at the expense of those businesses.
g. As noted in the County Planning Board’s letter to the Greenport Planning Board (December 20, 2006), “Columbia County Board of Supervisors, in conjunction with the Columbia County Chamber of Commerce has in effect a policy, “Shop Columbia County First” which simply stated encourages residents to exercise their purchasing power in Columbia County before traveling out of the County for goods and services.” While sales taxes do not discriminate between locally-owned businesses and locally-situated national chains, it is well-known that money spent in locally-owned enterprises has a significantly greater multiplier effect than that spent at retail businesses whose profits go to out of town corporations. (See Locally-Owned vs. Chains: The Local Premium).
5. Costs for necessary new and/or improved infrastructure and services are not fully understood with the data provided by the Applicant. Such costs must be borne by the Applicant, not the taxpayers.
a. Inherent in the Widewaters proposal are costs to the taxpayers of Greenport and use of resources that would then not be available for other uses, including future residential development.
1. Water: The Water and Sewer Department assures that there is adequate water to handle Widewaters’ projected approximate 45,000 gallons per day.
2. The Water and Sewer Department assures that it is able to handle the 36 tons of solid waste that the shopping complex will produce per month, in addition to recyclables that will also have to be processed. According to a report by John Mason in the Register Star (“Financial analyst says mall deserves a hard look,” December 17, 2006) expert financial analyst James Sheldon (MBA), who has studied the costs of development throughout the County and elsewhere, notes that Greenport has one of the highest per capita taxes in Columbia County. ($600 per person compared with an average of $360 per person in the region). Mr. Sheldon postulates that this is due to the fact that 40% of town taxes are committed to financing the repair and improvement of its sewage treatment facilities. The Town will undertake a $7 million expansion of its sewage treatment capability in order to meet current capacity and plan for future needs.
3. The water and sewer costs as well as the costs for potentially increased fire, police and emergency services will be paid by Greenport taxpayers unless the Planning Board completes an analysis and passes these on to Widewaters as a cost of doing business here. Widewaters wants to build here because it is benefit to them. Greenport has resources that Widewaters wants. Widewaters should pay for the benefit of using those resources.
6. The Applicant has made no provision for deconstruction in the event that the shopping complex is not completed or becomes vacant.
a. The existing structure and parking lots on the site are adequate visual evidence of what might happen if the applicant fails to complete this project. To prevent this, or the eventual possibility that the shopping complex fails to attract and retain tenants, the Applicant should be required to provide a bond for the removal of structures and parking lots and the return of the site to its natural state.
7. The Applicant has failed to give adequate consideration to alternatives.
a. The public has not seen scale drawings and architectural drawings but consideration must be given to alternative building placement and building design (particularly façade and rooflines), signage, human-scaled layout with walk-able sidewalks, etc. Consideration should also be given to making these LEED (Leadership in Energy and Environmental Design) Platinum Certified buildings and agree to the use of green cleaning and sanitary products and to eliminate to the extent possible the use of products that generate BPTs (bioaccumulative persistent toxins). For example, as proposed the approximately 10 acres of landscaping in the Applicant’s proposal would require the use of herbicides and pesticides. Elimination of these in favor of green alternatives makes good business sense. Such community-friendly initiatives could go a far distance in gaining widespread public support for this project, and admiration for Greenport’s leadership.
b. The Applicant has an option to purchase but does not own the land. The no-build option is a serious consideration that could actually benefit the Town, although it would not benefit the Applicant. However it is misleading to state that the Applicant has no alternative.
c. In response to EAF Page A-3 Question # 13 “Is the project presently used by the community or neighborhood as an open space or recreation area?” the Applicant answered “No.” Yet on page 3 of Appendix E Wetlands they state: “There is an extensive trail system on the site and numerous ATV trails have created smaller trails throughout the site.” So in effect, despite the Applicant’s negative response in the EAF, it seems they do know the area is used for recreation.
8. The Applicant’s wetlands, drainage, and subsurface exploration reports raise many unanswered questions.
a. How has the Applicant responded to the Army Corps of Engineers seven issues in the Corps’ comment letter of October 26, 2006?
b. Has the Corps performed a site visit to determine the limits of regulated wetlands on site?
c. What justification is provided for the Applicant’s request for a waiver from DEC concerning the five-acre disturbance limit of the SWPPP? What is the status of this request?
d. Where are the site data sheets referred to in the TES delineation and other supporting documents?
e. What was previously mined at the site and is contamination an issue?
f. How many trucks full of imported fill material will be required? The Subsurface Exploration report prepared by John P. Stopen Engineering dated October 3, 2005, advises that the on-site soils, due to their clay content, are not suitable for use as fill material and that imported fill material would be needed. How will this affect traffic, noise, and air pollution in the area? How will it affect erosion and wetland impacts? The landslide into the Claverack Creek on February 2, 2006 raised memories of the disastrous landslide that occurred on February 2, 1915. Last year's landslide disrupted traffic and caused fear among residents whose home or businesses were near the site. (see attached copies of articles from The Independent and the Albany Times Union). Given the nature of the soils and the unanswered questions raised in the Stoppen report, this could be among the most serious issues in the current proposal. Please note the concerns of Dr. Robert Titus, Ph. D. who teaches geology at Hartwick College. In the attached article by Richard Roth (Independent, Tuesday, February 7, 2006) Dr. Titus expressed ongoing concern about the area during the extremely rainy season last winter. We urge the Board to make certain that it seeks opinions from Dr. Titus and others to verify or disprove the conclusions in the Stoppen report.
C. The Board should extend the Public Comment Period for an additional 30-60 days to give the public and the Board an opportunity to further study the proposal.
1. The County Planning Board has recommended an extension (Letter, December 20, 2006).
2. An extension will give members of the public an opportunity to review the most current documents since many members of the public were not provided copies of the latest revisions, especially the critical new Site Plan.
3. As long ago as December 13 and as recently as December 22, members of our group and others have gone to, or written to, Town Hall to request copies of specific materials and documents related to this project. Only one of these documents has been made available. (See attached “Missing Documents” list). The public has the right to view all the documents that relate to this proposal. We cannot be expected to comment accurately on a project whose details are unknown to us.
4. There are documents that were not previously requested but which have recently come to our attention:i. The Applicant should provide a copy of the ENSR 2004 Wetlands Study (Page 1, Appendix E Wetlands).
ii. The Applicant should provide a ½ mile radius vicinity map to allow better understanding of the site's relationship to its surroundings. (Chapter 107 of Greenport Code.)
iii. Traffic noise and noise from commercial equipment (HVAC - air conditioning units on roofs, generators, etc) must be adequately addressed. The public should be provided the opportunity to review a noise analysis concerning the proposal’s ability to conform to the 70 decibel limit (Greenport Code, Chapter 90-6 Sound Level Standard).
iv. The Board and the public should be able to review and comment upon and the revised traffic study before the Board makes a determination of significance.
In conclusion, due to the scope of this Type I action, it is only reasonable for the Board to conclude that the proposed action may have a significant affect on the environment and that an EIS should be prepared.
Very truly yours,
Marc S. Gerstman
1. 6 NYCRR 617.7(a)(1).
2. 6 NYCRR 617.4(a) (Type I actions are “projects that are more likely to require the preparation of an EIS than Unlisted actions.”)
3. Shawangunk Mt. Envtl. Ass’n v. Planning Bd. of Town of Gardiner, 157 A.D.2d 273, 274-77 (3d Dep’t 1990).
4. Merson v. McNally, 90 N.Y.2d 742, 750 (1997).
5. NYCRR 617.7(c)(2), 6 NYCRR 617.11(b), 617.14(f)(3).
6. Wal-Mart is the subject of many of these studies and reports. However, their conclusions may be generalized to other big-box retailers because Wal-Mart is an industry leader whose business model is emulated and imitated and whose business practices have been adopted by most other big-box and “category killer” retailers.