The Planning Board stipulated the conditions, which relate to infrastructure elements such as water and sewer mains, a pedestrian easement, and lighting, in an August 2010 final resolution that nearly concluded the board’s role as lead agency for an environmental review of the project. The review took nearly six years to complete.
Last week’s issuance of the building permit reflects the town’s acceptance of RUPCO’s contention that the Planning Board resolution was flawed, in that some of its conditions cannot be met until the project’s infrastructure is in place. Under the terms of the building permit, those conditions must now be satisfied before a certificate of occupancy or a certificate of compliance can be issued. In the interim RUPCO has posted a $150,000 contingency bond, which the town would redeem if the developer failed to meet the remaining conditions.
Councilman Bill McKenna, a supporter of the housing project, acknowledged in a July 12 interview that the town was likely to face legal action no matter what course it pursued: a lawsuit by project opponents if it granted the building permit, or a lawsuit by RUPCO if it did not. Hypothetically, he said, an action by the developer could allege a violation of the federal Fair Housing Act, with potentially costly penalties for the town if such a suit succeeded.
The issuance of the building permit and, two days earlier, of a site plan approval and a special use permit (SUP), which were prerequisites for the building clearance, took many observers by surprise and suggested that the actions followed private communications between RUPCO representatives and Woodstock officials including town attorney Rod Futerfas. The building permit was granted soon after Futerfas notified the Building Department that RUPCO had obtained state and federal permits and met other conditions of the Planning Board resolution that it deemed manageable at this time.
The Planning Board resolution contained two sets of conditions: one for the issuance of a site plan approval and an SUP (which is required for multifamily housing developments), the other for a building permit. After he was advised that the first set of conditions had been met, Paul Shultis Jr., chair of the Planning Board, signed the site plan approval and the SUP on July 5. Paul Andreassen, Woodstock’s former building inspector, whom the town has retained on an as-needed basis following his resignation last month, signed the building permit on July 7.
Shultis stated in a July 11 interview that all interested parties, including RUPCO, had reviewed the Planning Board resolution prior to its adoption last August 5. McKenna, in a separate interview, said that RUPCO in recent months had made known its misgivings about the disputed conditions for the building permit, supporting the perception that last week’s issuance of the permit resulted, at least in part, from the developer’s objections, as opposed to a spontaneous decision by town officials. “There was orchestration,” said the councilman.
RUPCO’s executive director, Kevin O’Connor, did not respond to phone messages seeking comment on the process that led to the issuance of the building permit and his organization’s plans to begin construction of the project, Woodstock Commons, which RUPCO proposes to build on a 28-acre site behind the Bradley Meadows shopping plaza. O’Connor previously acknowledged that certain sources of funding for the project, such as federal tax credits, were due to expire at the end of the summer, although their deadlines might be extended if necessary.
ZBA to review building permit
Opponents of the project protested the sudden issuance of the building permit, particularly because the town has yet to conduct state-mandated tests to determine whether its water system is capable of supplying the housing development. RUPCO expects to receive municipal water and sewer service for the project.
At the outset of the Woodstock Town Board’s July 12 meeting, one prominent opponent, Iris York, presented board members with a letter of protest and an accompanying petition, signed by 53 customers of the town’s water district, which demanded that the town suspend or rescind the building permit until it informed the customers of the costs and results of the water tests and assured them that the water system could safely supply the housing project. (The water district serves approximately 725 customers. York noted that she circulated the petition by hand, via unannounced visits to residences in the district, over a period of only four hours.)
In addition, York confirmed in a July 13 interview that she has formally requested a ruling by the town’s Zoning Board of Appeals on the validity of the issuance of the building permit. A provision of the zoning law authorizes the ZBA to review actions by administrative officials charged with enforcement of relevant sections of the law. In the current situation, by issuing the building permit with its associated conditions, the town has informally nullified the Planning Board resolution — no action has been taken to amend or rescind the measure — in exchange for the contingency bond.
At the conclusion of her remarks at the board meeting, York suggested that town supervisor Jeff Moran resign for complying with the circumvention of the Planning Board resolution. In response, Moran announced that the Town Board at its next meeting, on July 19, would discuss all relevant legal aspects of the Woodstock Commons matter, including “inconsistencies” in the Planning Board resolution and the provision of municipal water and sewer service to the project. “This is a very fraught issue, and very political,” he said. “We are trying to follow the law. We are doing our best.”
Another leading opponent of the project, Robin Segal, declared in a blog post that Woodstock residents would file an Article 78 lawsuit against the town and RUPCO over the issuance of the building permit. Two previous Article 78 actions filed by Segal and other Woodstock residents were dismissed by a state Supreme Court judge on technical grounds.
Who had the information?
In interviews after the Town Board meeting, councilwomen Terrie Rosenblum and Cathy Magarelli maintained that they were not apprised, at least in a timely manner, of information surrounding the issuance of the building permit and related town deliberations and actions on the housing project. (Councilman Jay Wenk declined to comment before the board’s scheduled July 19 discussion of the project.)
“I still have many and major concerns about the product I was given this week from the Planning Board showing the entire process of the Planning Board’s review (of the Woodstock Commons application),” said Rosenblum, alluding to the planning agency’s final resolution.
She added: “There is a disconnect. The Town Board has no say in this entire process. If we don’t have one, who does? I simply feel that too much has happened too quickly, without enough sharing. I don’t appreciate hearing about things after the fact. We were elected and it is part of our job to know what’s going on. If the Planning Board or any (volunteer) board is doing something with such consequences, we should be informed.”
Magarelli said, “My concern about the resolution is that the Town Board has to approve water and sewer connections and we’re not having that opportunity. It was put in the hands of the attorneys, and kind of taken out of our hands to fix a faulty resolution. The issue for me is that attorneys have been negotiating some of the language in the resolution and we have been left out of the loop.” The councilwoman added, “I think that the bond will protect the town from incurring any cost (arising) from difficulties with (water and sewer) hookups.”
McKenna took exception to the implication that only he and Moran were privy to relevant information, noting that all pertinent documents, including the 11-month-old Planning Board resolution and permits obtained more recently by RUPCO, were readily available to all Town Board members.
In the districts or out?
Meanwhile, the question of whether the town will provide water and sewer service to the housing project remains unsettled, at least technically. In a joint interview on July 12, Moran and McKenna said that the town would meet an end-of-July deadline for submitting protocols for water testing to the state Department of Environmental Conservation (DEC), which in June required such tests as a condition of a water supply permit that the agency issued to the town. Woodstock officials have been developing the protocols in consultation with the town engineer, Dennis Larios.
While the DEC requires that certain testing procedures, such as a 72-hour pump test of each well in a system, be followed for an analysis of new water supplies, Moran and McKenna noted that the requirements did not apply to an older system, such as Woodstock’s. Accordingly, they said, the proposed protocols that the town will submit to the DEC may not adhere to the more stringent, and potentially more costly, guidelines. The conditions of the DEC permit stipulate that the testing cannot begin before July 30, with the results submitted to the agency no later than January 1, 2012.
The current owner of the proposed site for the Woodstock Commons project, EVK Realty, has for years paid taxes to the town’s water district but not to the sewer district. RUPCO maintains that the site lies within the boundaries of the sewer district and that the project is therefore eligible for a connection to the municipal sewer system. Project opponents contend that the site lies outside the district; as a consequence, the town would have to extend the district in order to serve the project.
State law delineates a process to be followed by municipalities that wish to extend a water or sewer district. Steps in the process include a public hearing and a permissive referendum by existing customers of the district. If the project site were deemed to lie within the district, as RUPCO maintains, there would be no need to extend the district, rendering the legal process irrelevant.
Moran noted that the town has recently undertaken a mapping of its land using geographic information system (GIS) technology. The resulting maps may shed light on the exact boundaries of the water and sewer districts.
Although it remain unclear which town agency, if any, will rule on the matter of district boundaries, Moran and McKenna said that, barring a determination that the project’s parcel lies outside the district, the town’s water-wastewater superintendent, Larry Allen, would render a final decision on water and sewer connections for Woodstock Commons. Under town law the superintendent’s authority and responsibilities include “the implementation of an effective cross-connection control program” and, acting as an agent of the Town Board, the issuance of permits.
“It will fall to Larry,” said McKenna.++