Dear KNGG Member:
 
Widewaters Commons is not “a done deal.” KNGG and you, its members, still have lots of work to do. We still need members to speak, telephone, and write to the Planning Board members encouraging them to turn down the Widewaters’ application. We need to legally investigate two additional variance requests by Widewaters that will soon come before the Town ZBA. And additionally we are now actively fighting the Dunkin’ Donuts’ application to put a fast foods drive thru at US9 and NY 9H.

KNGG urges the Planning Board to require Widewaters to put all green space (land not built upon) into a conservation easement.  Widewaters has annotated their site plan that no green space may be built upon. But laws can change as well as Planning Board membership.  Notes on site plans can be changed with a vote. KNGG wants an easement so the green space is guaranteed to remain permanently green for future generations.

We are fighting legal and engineering battles. Involved are legal nuances and technicalities of which most of us are not informed. Widewaters are super experts in the field and know how to use these to their advantage. Our success so far is due to professional legal and engineering representation and the fact that we have been able to pay these consultants. If it had not been for our diligent work, the strip mall would be up and running including a likely unsafe experimental roundabout.  

Back when the Kinderhook Town Planning Board accepted the Widewaters DEIS (Draft Environmental Impact Statement) as complete almost two years ago, (August 22, 2002) by a 4 to 3 vote, it was our attorney, Jeff Baker, who insisted that the strip mall developer provide a SDEIS (Supplementary Draft Environmental Impact Statement).

Environmental attorney Jeff Baker, representing KNGG, told the Planning Board, "This document (the DEIS) does not have the basic information that allows you to go forward. The Town is opening itself up to a lawsuit if the Planning Board does not conduct the SEQRA (State Environmental Quality Review Act) review process properly. The Board is asking the public and involved agencies to comment on a document that its own consultants conclude is inadequate."

At the time, the Planning Board was advised that the requirement of a SDEIS was not necessary to continue the process. Largely because of Baker’s statements, the Town fortunately realized it was out of its depth with Widewaters. It then retained its own environmental attorney, Marc Gerstman.

Mr. Baker advised KNGG that it needed to present independent expert engineering studies of water, soil, architecture, lighting, landscaping and especially traffic to refute many of Widewaters’ claims.  The KNGG studies opened many eyes to the fact that Widewaters was providing the Planning Board with biased information.

None of what we have accomplished could have been done without your financial support. Now is NOT the time to give up. Without your financial support we cannot continue and our efforts will need to come to a halt.

Looking to the future, we have made a formal request in May to Supervisor McGivney and the Town Board to implement a moratorium on all commercial development on Routes US9 and NY 9H until a corridor study could be completed. The Board has not acted on this significant request.

To be able to continue our work, we will still need to be able to pay for legal and engineering consultation.

Now we need to call on you to be generous once more. Today we ask those of you who have generously contributed to KNGG in the past, to please dig deep once again. 

And we ask all of you who have not given previously, who have thought, “Let George do it,” to please make a generous contribution at this crucial moment.  You see, there is no George but, if we all pitch in, we can continue to make a stand.

Please give generously so we can continue to advocate the preservation of the town we all love and prevent the planning disasters and mistakes that would destroy Kinderhook. Your contribution to KNGG is tax deductible as allowed by law.

Yours truly,
The Board of Directors

Allen Schaefer, President

Mark Litteken, Treasurer

Deirdre Leland Secretary
Margaret Moran

Alexandra Anderson Spivy

The Advisory Board of Directors

Roderic Blackburn

Jean-Paul Courtens

Jeremiah P. Cosgrove

Jane Ehrlich

Fayal Greene

Sara Johns Griffen

Judy Grunberg

William P. Palmer

Ruth Piwonka

Sam Pratt

Sara Potter Richards

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WIDEWATERS REQUIRED TO GET MORE VARIANCES

Wednesday June 2, 2004

At the special Planning Board meeting Wednesday evening, called especially to deal with Widewaters’ business, the Planning Board determined that Widewaters would need additional variances.  In addition to the one for which they have applied, they will need one for setback of the restaurant and one for an additional curb cut.

Other items discussed were the language of the matrix and preamble of the FDEIS (Final Draft Environmental Impact Statement).

ZBA TO RETAIN MARC GERSTMAN

Thursday June 3, 2004

Although Dunkin’ Donuts was on the ZBA agenda, their representatives were asked by attorney Marc Gold not to appear as the traffic evaluation by the Town was not complete.  The Dunkin Donuts Public Hearing is rescheduled for July 1^st.

At the regular ZBA (Zoning Board of Appeals) meeting Thursday evening, board member Richard Wetmore, having brought up the issue earlier with Town Supervisor Doug McGivney, proposed that the ZBA retain environmental attorney, Marc Gerstman for any matters dealing with Widewaters.  Wetmore clarified that Gerstman's appointment has nothing to do with Marc Gold’s capabilities as an attorney.

Chairman Sean Eagan pointed out that Widewaters Commons is the largest project by far to be considered in Kinderhook. The application process is complicated and expert help in the environmental field would be beneficial.  Board member Kelly Nicoletta stated, “Widewaters has a variance application in for roof pitch and I have the feeling that they’ll want more.”  Margaret Litteken, although recused from Widewaters, was allowed to point out that the previous night the Planning Board found that Widewaters would need two additional variances. But one alternate member argued that this would be an additional expense to the Town.

KNGG believes what may be an additional expense to the Town today will probably save it a great deal in future legal fees.

A motion was made by Richard Wetmore and seconded by Sean Egan to retain Marc Gerstman.  A vote was taken and the result was unanimous to retain Gerstman.

Marc Gerstman had been retained by the Town for the Planning Board because of the legal environmental complications of the Widewaters application.  Gerstman has dealt often with the environmental parts of the law that most attorneys around here have not.  It is generally felt that he has worked well in advising the Planning Board in the complications of environmental law and the SEQRA (State Environmental Quality Review Act) process. The continuity of having Gerstman retained buy the Town for the ZBA is the ideal situation.  The ZBA made a wise choice.

Mobil jealous of SUNOCO in KINDERHOOK?

You may remember that the Sunoco gas station, on Route 9 north of Valatie almost at the Kinderhook Town line, has been cited for installing signage larger than is allowed by the code. The Sunoco franchise is now in litigation with the Town.

At Thursday’s ZBA meeting, a representative of the Mobil franchise directly across from the Sunoco station, requested to place an application for a variance for larger signage than allowed by code.

The representative advised the ZBA that most franchise stations of all oil companies are “peddling” larger logo signage to their franchises.  Therefore, if one station has a larger sized sign, that station has an advantage over the others in capturing “pass by traffic.”

Board member Kelly Nicoletta asked the representative if the ZBA should expect many more requests for larger signage variances down the line because of this new policy.  The representative replied yes.

Sean Egan requested that the representative present a letter from the oil company to the effect that the oil company is requiring their franchises to put up larger signs.

This is getting off the track. The oil companies do not write the Town’s code. Nor do they make the ZBA determinations.  It certainly wouldn’t look good for the Town if we give Mobil a variance for larger signs especially if we are fighting Sunoco in court on a similar issue.  In the near future Gulf and Getty will want larger signage and soon we’ll be hearing from McDonald’s, Stewarts and Dunkin’ Donuts, whose signage size has just been bargained down.

It’s only fair that if we give in to one, we should treat all as equal.  If not careful, we’ll be lit up as bright as East Greenbush.  If the Mobil variance happens to be granted before the SUNOCO case is settled, the Town attorney will have a difficult time explaining it to the judge.

Just because an oil company wants its franchise to put out larger signage is no reason to give a variance. It brings up the issue of how we are to treat our code.  Will the ZBA be allowed to rewrite the code, or will they be expected enforce it? 

Variances should be given only in extreme circumstances.  Wanting larger signs is not a reason for a variance. 

As ZBA member Richard Wetmore was quoted recently by the Register-Star, “The purpose of the ZBA is to right unanticipated, egregious wrongs to individuals that were engendered by the Town in enacting its codes.”

“I get the feeling sometimes we are looking for a way to grant a variance,” he continued.  “We should look for egregious harm in exceptional circumstances.  I don’t always get the impression that the Town’s good is foremost in our minds.” 

One can only conclude that because a Town has a good zoning code, does not ensure the community that it will be enforced, especially if exceptions to the code are the norm and not the enforcement of the code.