Five of the Planning Board’s seven members — chairman Paul Shultis Jr., David Corbett, Allen Duane, James Huben, and Laurie Ylvisaker—voted in favor of the project’s site plan and SUP applications. Paul Henderson was absent and Peter Cross had recused himself from the board’s Woodstock Commons deliberations.
In a news release issued the day after the vote, the project’s developer, the Rural Ulster Preservation Company (RUPCO), reported that its leaders “rejoiced” at the outcome of what the company’s executive director, Kevin O’Connor, called “the longest, most comprehensive, detailed and complete look any affordable housing project has ever had.”
The vote followed the Planning Board’s July 1 adoption of a so-called findings statement that the development complied with state and local environmental laws. RUPCO has declared its intention to break ground on the complex next spring. Before construction can begin, however, the company must obtain state and local environmental permits and a town building permit.
In an August 10 interview, O’Connor and Guy Kempe, RUPCO’s director of community development, said that the company had no particular timeline for obtaining the required permits. “I’m not sure how long it will take. We will defer to town officials and follow their guidelines,” said O’Connor.
As proposed by RUPCO, Woodstock Commons would be served by the town’s municipal water and sewer systems. The developer maintains that the project is entitled to those services because the 27.5-acre site lies within the hamlet water and sewer districts.
Critics argue otherwise. One opponent of the project, Sensible Action for Growth and Environment (SAGE), disputes its eligibility for the services based on a reading of district maps, town tax records, and a key phrase in the town code. A lawsuit filed recently by another opponent, Woodstock resident Robin Segal, contends that the Planning Board erred by adopting the environmental findings statement based on an assumption, before the fact, that the Town Board would deem the project eligible for municipal water and sewer service.
The matter is somewhat complicated. According to Woodstock assessor Marc Plate, the town’s water district was established in the 1950s and hamlet sewer district in 1981. The boundary lines of the respective districts do not exactly coincide. Iris York, president of SAGE, observes that the official map of the hamlet sewer district does not include property lines. In a letter to this newspaper she cited the following phrase in a relevant section of the town code (italics added), which was adopted at the time the district was created: “Those properties which are now divided by the District boundary line shall be considered to be wholly served by the District.”
York’s letter added: “All properties intended to be located in the hamlet sewer district were identified at that time and specifically included on the tax assessment roll and parcel list. The project site does not pay hamlet sewer district taxes and the Town’s list that identifies all of the tax parcels in the hamlet sewer district does not include the property that RUPCO wants to build on.”
(York said in an August 10 interview that SAGE was consulting with its attorney and its planner about whether to take legal action following the Planning Board’s final approval of the project, but no decision had yet been made. “We are still exploring our options,” she said.)
Is it in or out of the district?
The vacant parcel that contains the Woodstock Commons site — listed on the town tax rolls as Section 27.55, Block 2, Lot 3 — is currently owned by EVK Realty, LLC. RUPCO plans to purchase the property from that entity. In an August 11 interview, Plate confirmed that the parcel is not among those designated by the town in 1981 as lying within the hamlet sewer district, although other vacant parcels were so designated at the time. Indeed, in recent years EVK Realty has been paying taxes to the town’s water and on-site sewer districts, but not to the hamlet sewer district.
(By paying taxes to the on-site sewer district, the owner of an undeveloped property retains the right to install an on-site sewer system. In the case of a large-scale project like Woodstock Commons, the town might agree to share maintenance responsibilities for such a system, as it has for the on-site system at the KTD monastery on Meads Mountain Road.)
Plate suggested that the wording of the original Town Board resolution creating the hamlet sewer district could clarify the question of a property’s eligibility for service. “Tax maps are just an indication, an approximation,” he said. “They don’t show everything.”
All parties, including Woodstock supervisor Jeff Moran, concur that the Town Board will ultimately determine whether Woodstock Commons is entitled to receive municipal water and sewer service. Said Plate: “It has never been within the assessor’s authority to say that one property is in or out (of a district). That has always been decided by previous (town) supervisors, working in conjunction with the water-sewer superintendent.” He added, “Any property that touches on a district (boundary) has the right to opt in (to the district) with Town Board approval.”
“There are two paths for a water or sewer hookup,” said Kempe, the RUPCO official. “If a property is in the district and is eligible, it simply requests an extension of the service. If it is out of the district, it submits a petition for inclusion. The town will make that decision.” In documents related to Woodstock Commons, RUPCO has noted that the town’s provision of water and sewer service to the project would result in increased tax revenue for the town.
Moran, meanwhile, observed in a recent interview that the town would have to seek a waiver from the federal Environmental Protection Agency if it sought to extend the hamlet sewer district across a wetlands area, which is present in the project site. The waiver is required for federally funded sewage treatment infrastructures. Should the Town Board face a request to extend the hamlet sewer district to serve Woodstock Commons, said Moran, one factor in its deliberations would be whether an EPA waiver could affect future grant applications by the town to that agency.
Segal’s lawsuit looms as a possible impediment to the continued progress of the RUPCO project. The lawsuit is an Article 78 petition, whereby, under the state constitution, a citizen or other affected party may legally challenge an action by a government agency. Segal’s petition, filed on July 28 in state Supreme Court, seeks to set aside the Planning Board’s environmental findings statement. The lawsuit cites 22 causes of action against the Planning Board and its chairman, Shultis, and the Town Board and the supervisor, Moran. The town’s attorneys are preparing a response to the legal challenge.
What are the chances that an Article 78 petition will succeed? In an August 10 interview, Robert Freeman, who is executive director of the state Committee on Open Government, said that he was unaware of any studies on the outcome of such actions, nor could he cite anecdotal evidence of such. “I can’t guess,” he said.
According to Freeman, Article 78 petitions fall into two categories: actions, like Segal’s, that charge a government agency with failing to follow applicable laws or procedures in reaching the decision in question; and others, which allege that the government agency violated the Freedom of Information Law (FOIL).
In the second instance, the burden of proof is on the agency. “Courts have been pretty tough on government agencies” in FOIL-related cases, he said. In actions like Segal’s, however, the burden of proof lies with the plaintiff. “It’s difficult for plaintiffs to prevail,” said Freeman. The defendants named in Segal’s petition are expected to respond to the court by September 1. ++