Robin Segal, a prominent opponent of the housing project, whose developer is the Rural Ulster Preservation Company (RUPCO), is the petitioner of record in the lawsuit. Segal maintains that the town has not conducted a substantial analysis of its water system since 1985; consequently, whether the local water district can be expanded to include the 53-unit project without compromising service to existing customers remains undetermined.
Joining Segal as petitioners in the legal action are Mick Breitenstein, Michael Kramer, Robin Kramer, Phyllis Lane, Nancy Schauffler, and Iris York.
Woodstock supervisor Jeff Moran acknowledged in a March 15 interview that the water system had not been analyzed recently. The town plans to perform a “limited” hydrology study of certain aspects of the system sometime this spring, following an upcoming preliminary meeting on the matter between the Town Board and the town’s consulting engineer, said the supervisor. Meanwhile, RUPCO has announced that it plans to start construction on the project in the spring.
The scope of the hydrology study will be limited, said Moran, because the study’s cost will be borne by taxpayers who are customers of the water district. “A full-bore study is more than we can put on the backs of our users,” he said.
The lawsuit, known as an Article 78 petition, was filed on March 9 in state Supreme Court in Kingston. The defendants are the town of Woodstock, RUPCO, and EVK Realty, the current owner of the 28-acre parcel that contains the site of the proposed housing development. Concluding a nearly six-year review, the town Planning Board last summer ruled that the project complied with state and local environmental laws and issued a conditional approval of its site plan and application for a special use permit.
In addition to requesting an analysis of the municipal water system, the lawsuit asks the court to set aside all decisions made by the Town Board based on an erroneous citation of law by town attorney Rod Futerfas. In a December 2010 letter to the state Department of Environmental Conservation (DEC), Futerfas incorrectly stated that, under town law, parcels situated partially within the water district — in this case, the Woodstock Commons site — should be regarded as fully served by the district.
In fact, that provision of town law relates to the hamlet sewer district rather than the water district. Futerfas subsequently admitted the error and retracted the statement. In a March 16 interview and on previous occasions, however, Segal maintained that RUPCO attorney Michael Moriello made the same mistaken assertion in his own letter to the DEC last December. She deemed the error by the two lawyers “no coincidence.”
Said Segal: “Rod Futerfas should be familiar with the laws of the town for which he is the attorney. He definitely should have looked (the applicable law) up. Now that he has retracted (his previous statement), he is on record as being 180 degrees apart from Michael Moriello on this section of town law. Now Moriello is out there by himself, with the town of Woodstock on the other side.”
Guy Kempe, who is RUPCO’s director of community development, said in a March 16 interview, “I am absolutely confident that the Article 78 filing will be dismissed.” In his view, said Kempe, the petition related to “long-settled matters” and was neither appropriate, timely, nor accurate.
“As a nuisance lawsuit, it does nothing to address the need for affordable housing in Woodstock,” he said, adding that “plenty of precedents” exist to support Moriello’s legal opinion that the housing project is entitled to municipal water service under Woodstock’s town code. Such precedents are described in a January 2011 report prepared by Kempe.
Futerfas and Moriello wrote to the DEC in response to the agency’s ruling last December 2 that the town would have to apply for a “water supply permit modification” in order to serve the Woodstock Commons project. The DEC is currently reviewing a so-called joint application, which RUPCO submitted on behalf of the town.
The lawsuit effectively asks the court to intervene in that process by requiring the town to “truthfully and accurately” analyze its water system and then, if the results are “affirmative,” to “truthfully” apply to the DEC for an expansion of the water district, thus nullifying the application that the DEC is currently considering.
Town board’s discretion
Moran recently confirmed that the town, by granting service in the past to properties partially within and wholly outside the water district, had established precedents of the kind cited by Kempe. The relevant section of town law states that any person or corporation within the town may apply for a connection to the municipal water supply. It further states that the Town Board at its discretion may grant or deny such applications.
The supervisor said that the town will await guidance from the DEC, in the form of a ruling on the pending application, before deciding whether the matter should come before the Town Board for a vote. “The DEC needs to tell us how to proceed with regard to hooking RUPCO up to town water before we can do anything, since the Planning Board was the lead agency and approved the project as submitted, with (municipal) water and wastewater (service assumed). My understanding is that it’s a ministerial process for the Town Board. If we find differently, we will proceed accordingly.”
In a recent conversation, the chairman of the Planning Board, Paul Shultis Jr., emphasized that his agency’s approval of the Woodstock Commons site plan and special use permit application was conditional on the issuance of several required permits to RUPCO. The Planning Board will consider the developer’s application for one such permit, certifying the project’s compliance with the town’s wetland and watercourse law, at a public hearing scheduled to take place at 7:15 p.m. Thursday, March 17, at the Community Center.
According to Moran, previous studies of Woodstock’s water system suggest that the supply of water in the town aquifer is ample and that any problem may lie with the delivery of water to district customers. Last summer, however, the town declared a water advisory and restricted the nonessential use of water by district customers. Recent data also indicate significant leakage of water pumped from the system.
“Because of deferred maintenance, our system is not as mechanically sound as it should be,” he said. “We have now put our seven wells on an annual redevelopment schedule of one well per year. I don’t see any basis for saying that an additional 53 housing units would compromise our water system or our service to existing customers, but we as a town government would not do anything to hurt our district’s users.”
He dismissed Futerfas’s misstatement of town law as an “inadvertent error” and an “honest mistake.” Said Moran: “I’m sure he wasn’t being duplicitous. We realize that Rod is an honest attorney who has given us wise counsel and saved us from potentially expensive lawsuits by handling them expeditiously and judiciously.”
Segal, meanwhile, is awaiting action by the state Supreme Court on a separate Article 78 petition that she filed last July, challenging the validity of the Planning Board’s environmental review of the Woodstock Commons project. In addition to the Planning Board, the defendants in that action are the Town Board, RUPCO, and EVK Realty.++