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WIDEWATERS DEIS
COMMENTS on DEIS
by KNGG Attorney Jeff
Baker
YOUNG, SOMMER . . . LLC. July 28, 2002 Town of Kinderhook Planning Board I. The Determination of Completeness When an EIS is being prepared for a project, it is customary for the project applicant to prepare the DEIS is submit it to the lead agency for its acceptance. At that point the lead agency is being asked to make a determination as to whether the DEIS is complete and adequate for public review. The lead agency has 45 days after the submission by the applicant to make that determination. In many cases a project for which an EIS will be prepared will first engage in a formal scoping process. Scoping is useful, for all parties involved, because it allows for the identification of the issues to be covered in the DEIS, and an outline of how they will be addressed and the kinds of information that should be included. Scoping, however, is not mandatory. In this case, Widewaters did not wish to engage in scoping and it is our understanding that the Planning Board did not push the issue, feeling that the community forum, comments from other agencies and the Planning Board's own comments to the applicant were sufficient for the applicant to understand what was expected to be included in the DEIS. Based upon what has been presented in the PDEIS, it is obvious that Widewaters was not listening. The Planning Board's goal in deciding whether a DEIS is complete is to determine if all of the necessary issues have been addressed with sufficient detail for the review to proceed. Under SEQRA, the Planning Board's obligation is to identify the relevant areas of environmental concern, take a "hard look" at those issues and ultimately make a determination that if it is going to approve the project, that from the reasonable alternatives, the project avoids, minimizes or mitigates the adverse environmental impacts to the maximum extent practical consistent with social, economic and other essential considerations. 6 NYCRR Sec. 617.11(d). The Planning Board cannot fulfill its obligation if the applicant has not presented a DEIS that provides sufficient information to enable the Planning Board to take the "hard look". The DEIS is very important to the overall SEQRA process since it is the single document containing the bulk of the information regarding the project and provides the foundation for all future decision-making. Therefore it is very important that the Planning Board be confident that all the necessary information is included and set forth in an objective and unbiased manner so that the substantive review by the involved agencies and the public can occur. The SEQRA regulations recognize the importance of this stage and urge lead agencies to seek the advice and assistance of other agencies, groups and persons in the review of DEIS's for adequacy and content. 6 NYCRR Sec. 617.14(c)(3). KNGG's opposition to the project, as presently configured, is no secret. KNGG has many substantive comments on the project and the DEIS which will be appropriate to submit when the DEIS is formally accepted and released for public comment. The comments submitted below, with the exception of the comments regarding the violation of the zoning code, are not intended as criticisms of the project, but focus on the identification of missing information which precludes meaningful review. Nor are these comments intended to be exhaustive. Because Widewaters chose not to undertake the formal scoping process, involved agencies and the public are not obligated to identify all issues for review before the DEIS is issued. While KNGG believes it has identified most issues, the limited time for review precludes a complete list and if other issues are identified later, KNGG reserves its right to present those comments during the formal public comment period. KNGG hopes that the Planning Board will accept these comments in the constructive manner in which they are offered, intended to assist in the development of a document that will allow for an accurate and thorough review of the largest project proposed in the town. We hope that the Planning Board will incorporate these comments into a detailed list of the deficiencies of the PDEIS provided to Widewaters so it can clearly understand the what needs to be included in the revision of the DEIS. In many ways, that notice of incompleteness from the Planning Board can serve as the scoping which, in retrospect, should have occurred. II. The Project Violates the Zoning Code As a preliminary matter, the PDEIS demonstrates that the Widewaters project does not comply with the zoning code and must be reconfigured before the DEIS can be accepted as complete. There are two glaring violations of the zoning code. First, the septic systems are illegally characterized as an accessory use in the A/R district. Second, the size of the project exceeds the maximum lot coverage permitted in the B-1 district. Both issues are discussed below A. The Septic Systems Cannot be an Accessory Use in the A/R Zone. The PDEIS states that the project will be served by two separate septic systems - one serving the supermarket and the adjoining 15,000 sq. ft. retail building and the second serving the restaurant and the other two 10,000 sq. ft. buildings. The leach fields for both systems are located in that portion of the parcel that is within the A/R zoning district. The PDEIS simply makes the bald assertion that: The leach fields are an accessory use customarily incident to the principal retail uses and are located on the same lot. Hence, they are permitted in both the B-1 and A/R districts by right. (PDEIS, p.28). There is no legal support for that position, and in fact it is specifically contrary to the zoning code. The Town of Kinderhook Zoning Code, Chapter 81 of the Town Code, was adopted by local law in or about December 2001. The preamble of the local law, under the heading "Effective Date" states that applications pending before the Planning Board for site plan approval before the effective date shall continue to be processed under the zoning code as it existed on the date of submission of the application. The Widewaters application was pending on the effective date of the new code and Widewaters recognizes that the "old" zoning code applies. (PDEIS p. 27). Under the previous zoning, the subject parcel was divided into two districts with approximately 10 acres in the B-1 district and approximately 9 acres in the A/R district. Sec. 81-5(D) of the old zoning code states: Where a district boundary divides a lot in single or joint ownership of record at the time such line is established, the regulations for the less restricted portion of such lot shall extend no more than 30 feet into the more restricted portion. Widewaters recognizes and references that section in the PDEIS and utilizes it for the placement of portions of the buildings and pavement in the 30 foot expansion area. (See, PDEIS p. 28; Figure 4). KNGG does not dispute Widewaters' ability to use the expansion area for those purposes under the zoning code. Sec. 81-5(D) of the zoning code establishes that for divided lots, different zoning restrictions will apply to the different portions of the lot in the different districts. The zoning code is also very clear about requiring compliance. Sec. 81-6(A) states: No land or building shall hereafter be used, occupied, erected, moved or altered unless in conformity with the regulations hereinafter specified for the district in which it is located. Thus, for the subject parcel, the land within the B-1 district may only be used in conformity with the requirements for that district and the land within the A/R district may only be used in conformity with the requirements for that district. The only exception, as provided in Sec. 81-5(D), is for the expansion area of up to 30 feet in the A/R district which may be used in accordance with the regulations for the less restrictive B-1 district. The permitted uses and accessory uses for all districts are set forth in Article III of the zoning code. Sec. 81-7 states: No building or premises shall be erected, altered or used except for one or more of the uses designated for any district as follows. The Table of Uses is divided into four use categories: Residential; General; Business; and Light Industrial. Specifically permitted Accessory Uses are identified for the General, Business and Light Industrial use categories. The table classifies each delineated use as either permitted as of right ("P"); requiring a special use permit ('X") and whether site plan approval is required (*). The code provides a specific Note that: "uses not permitted by right or as a conditional use, whether listed below or not, are prohibited.". Under the Business Uses category of the table, retail stores are permitted in the B-1 District, subject to site plan approval. They are prohibited in the A/R District. The table lists a number of accessory uses. Septic systems are not among that list and are not permitted as accessory uses in the A/R district. Therefore, Widewaters cannot locate its septic systems within the A/R portion of the property. Besides the fact that septic systems for retail uses are not among the enumerated permitted accessory uses in the A/R district, is the reality that septic systems are not accessory uses. They are a part of the primary use. Accessory uses are defined in the zoning code as being "customarily incidental and subordinate to the principal use". The American Heritage College Dictionary defines accessory as: "a subordinate or supplementary item; an adjunct. Something nonessential but desirable that contributes to an effect or result". A septic system is not incidental or subordinate to a retail use - it is integral and necessary. As fundamental to the use of the principal structure as the building itself. A building cannot be used unless there is a means for the removal and treatment of wastewater. Accessory uses are garages, storage sheds, pools and tennis courts. Accessory uses do not include septic systems that are fundamental to the use. Since septic systems are not accessory uses as commonly defined, nor as allowed for business uses in the A/R district, the project as currently designed is in violation of the zoning code and must be re-designed before the DEIS can be deemed complete. Obviously a DEIS cannot be accepted for a project that clearly does not comply with the zoning code. B. The Project Violates the Density Control Schedule The zoning code's density control schedule is very clear - it lists the districts and states the applicable requirements. For the B-1 district, the maximum lot coverage, including all buildings and pavement, is 50%. The table does not provide that the land on a lot within a different district is included in the calculation. That land is subject to its own density requirements. Widewaters is including the entire 19.10 acres in its calculation for maximum lot coverage and claims at 46% it is below the limit of 50%. However, if only the approximately 10 acres within the B-1 district are counted, and even adding the 30 foot expansion zone - the project is far in excess of the allowable maximum. The Planning Board should not begin the review of the project which is clearly over-sized since it presents inaccurate portrayal of an approvable project. Widewaters must be directed to revise its layout plan to comply with density control schedule by not exceeding 50% of the lot coverage for that portion of the lot within the B-1 district. C. Other Site Plan Deficiencies The site plan included in the PDEIS is also deficient because it fails to include the required loading bays for tractor trailers serving the project. Sec. 81-18(E) of the old zoning code requires one off-street loading berth of the first 10,000 to 25,000 sq. ft of building area and one additional berth for each additional 25,000 sq. ft. of building area. Widewaters' site plan only shows loading areas for the supermarket and no loading areas for any of the other retail buildings. While the 15,000 sq. ft. building is connected to the proposed Hanaford's it obviously will not be able to access the loading docks serving Hanaford's. Similarly, per the zoning code and common sense, each of the other buildings requires, at a minimum, its own loading dock designed to the required specifications. III. The Deficiencies of the DEIS The PDEIS is strikingly inadequate given its reliance upon conclusory statements and limited scope of analysis. As a preliminary matter, the Planning Board should take exception with the tone of much of the PDEIS. While the document has been prepared by the applicant, it is supposed to reflect an objective analysis prepared for the Planning Board's review. Therefore conclusory statements purporting to represent the official views of the Town or the Planning Board should be carefully scrutinized and modified where necessary to accurately reflect the views of the Planning Board. Broad statements regarding the consistency with the Comprehensive Plan, the lack of adverse impact and similar matters should be tempered to more accurately reflect the view of the Board and recognize the need for comment and the legitimacy of contrasting views. Besides the need to moderate the editorial tone of the PDEIS, set forth below are the some of its more significant omissions. A. Traffic By consensus, traffic is probably the most significant adverse impact caused by the project, yet Widewaters has not considered the numerous comments provided to date, including those from DOT. At this point, KNGG is not in a position to provide a detailed list of the omissions in Widewaters' traffic study because KNGG's traffic consultant is on vacation and will not return until after the Planning Board's workshop meeting on July 31st. KNGG will provide more detailed comments at a later date, but in plenty of time before the 45 day deadline for the Planning Board's completeness comments to Widewaters. Nevertheless, based upon preliminary discussions with our consultants and the personal knowledge of KNGG's members, we are able to offer these preliminary comments. 1. Date of Traffic Count. Widewaters conducted its background traffic count in August of 2001. Sound traffic analysis practice necessitates conducting the count at a representative time reflecting traffic conditions during the majority of the year. August traditionally is a relatively low traffic month when schools are out of session and many local residents are on vacation and not engaging in normal traffic patterns. KNGG's consultant has advised us that conducting the traffic count during a more representative period would likely result in a significantly different results. 2. Improper Design Year. Obviously the project will not be completed in 2002. Given the delay by Widewaters to date and the need to completely revise the traffic study, Widewaters should use 2004 as the likely opening date to provide a reasonably conservative analysis. 3. Inadequate Selection of Intersections for Analysis. There are many unsignalized intersections within the study area that are not evaluated, including some which may currently experience higher traffic volumes than those chosen. None of the existing unsignalized intersections between commercial access driveways and Route 9 or Route 9H are included. The omission of such intersections inhibits reasonable evaluation of the traffic impact of the proposed shopping center, and, because no description of the methodology used to select the studied intersections is offered, is arbitrary. For example, the unsignalized intersection of Route 9 and Bank Dr. where the entrances to two of the highest trip-generating businesses in the studied area are located, the McDonald's and the Hudson River Bank & Trust (both of which have drive-through service), is not evaluated, despite the fact that it is closer in proximity to the proposed shopping center than some of the other unsignalized intersections that are included in the study. 4. The Study Ignores the Ichabod Crane School District. None of the school campus driveway intersections with Route 9 and State Farm Road are part of the study. The omission of these intersections is especially problematic in light of the fact that the bus garage is located on the campus and these intersections are used by all of the Ichabod Crane School District buses for all of the District's bus transportation responsibilities. Even a preliminary inquiry with the School District revealed that there is continuous school bus traffic to and from the Route 9 campus on weekdays between 6:30 and 9:00 a.m. and between 2:30 and 5:00 p.m. The Superintendent of the school district has previously informed the Planning Board and Widewaters of its concerns for this project's impacts with school traffic, yet Widewaters' traffic study completely ignores the issue. 5. Cumulative Traffic Impacts. The PDEIS ignores the issues of cumulative impacts and fails to consider other projects in the 9 and 9H corridors which have been proposed and/or are likely to be developed. Given the considerable stress placed by Widewaters upon the local road network and Widewaters' recognized expectation that other undeveloped parcels will also be commercially developed based upon the spin-off traffic generated by Widewaters, a comprehensive cumulative traffic analysis must be included. Many of those parcels are relatively small and individually may not warrant preparation of environmental impact statements. Given Widewaters' size and likelihood to act a catalyst for further development, Widewaters should assume that all parcels within the vicinity of the project will be developed and the traffic generated therefrom should be considered. 6. Lack of Traffic Safety Analysis. The PDEIS does not provide information sufficient to evaluate the proposed driveway entrances and roadway improvements. There is no information in the PDEIS regarding the determination that the proposed improvements are appropriate or better than any alternatives considered. Given (1 )the unusual configuration of the Route 9/Route 9H/ State Farm Road intersection, (2)the high traffic volume already existing at that intersection and at other intersections along the roads leading to it, (3) the proximity of school pedestrian and vehicular traffic to the proposed shopping center, and (4)pending development projects in the study area or the vicinity of the proposed shopping center site, a comprehensive analysis of accident rates, sight distances and other roadway configuration issues must be fully assessed. 7. Acceptable Levels of Service. The PDEIS makes the blanket assumption that any Level of Service (LOS) down to Level "E" is considered acceptable. That is an inaccurate statement and infers a legality to Levels of Service that does not exist. There is no regulatory or judicial standard establishing what is an "acceptable" LOS. That is a judgment call which is left to the Planning Board. The Planning Board must consider the appropriate LOS for a rural community like Kinderhook and ascertain what degradation of traffic conditions is acceptable. Just because more densely populated suburban areas like Long Island and Westchester regularly encounter LOS of "c", "d" or "e" does not mean those delays and congestion are inevitable for Kinderhook and must be accepted. At a minimum the Planning Board should require Widewaters to cease referring to those LOS as acceptable and require an assessment of the consequences of increased delays and reductions in LOS on the quality of life in the town. 8. Fair Share Allocation. Widewaters recognizes that the Route 9/Main Street intersection is already at failure and that its project will exacerbate the situation. Widewaters states its willingness to participate in a "fair-share" basis for the cost of signalization. However, Widewaters does not explain or discuss what that "fair-share" is, how much the project will cost and whom will pay for the other share. The DEIS should discuss that issue, identify the funding source and explain why Widewaters should not bear the full cost and the environmental consequences of not having the signalization assuming other funding sources are not realized. B. Water Supply and Groundwater KNGG has retained the services of Alpha Geoscience ("Alpha"), one of the premier hydrogeology firms in the Capital Region to review the sections of the PDEIS concerning the water supply. Alpha's report is attached hereto as Exhibit A and demonstrates significant inadequacies in Widewaters' PDEIS. The Planning Board is referred to those comments which outline, inter alia, Widewaters' failure to fully assess the aquifer, the effect of pumping on surrounding wells, the inconsistencies of the well pumping test records with statements in the PDEIS, including the lack of recovery time for the well. C. Topography and Soils Alpha also reviewed those sections of the PDEIS concerning topography and soils and its comments are also set forth in Exhibit A. Alpha noted the absence of a maintenance plan for the sediment basins and the need for the PDEIS to clearly state the range of percolation rates measured during the deep hole and percolation tests. D. Sewage Disposal Alpha also reviewed those sections of the PDEIS concerning the treatment and disposal of wastewater and its comments are also included in Exhibit A. Alpha noted the discrepancy in the PDEIS between Napierla Consulting's assessment that the percolation rates on site were inadequate to assure proper wastewater treatment without significant modification to the soils on the site and the body of the PDEIS failing to note that warning or committing to taking the appropriate measures and setting forth what those measures will be. E. Public Need The PDEIS provides insufficient support for the assessment of the need for the project other than the self-serving assumption about a need for further retail opportunities in the town. Other than identifying Hanaford as the supermarket tenant and the general reference to a national family restaurant chain, there is no discussion of the other retailers likely to occupy the shopping center. This is important not only to assess the direct impacts of the project but to consider the impact on existing areas of commercial development. The Planning Board should not approve a project of unrealistic size that may lie vacant or which will cause significant vacancies and decay in other areas of the town. Considering the existing vacancies in retail space at the Grand Union center, the Planning Board cannot assume that there is an unsatisfied retail need in the town. F. Growth-Inducing Impacts As noted specifically with respect to traffic impacts, the PDEIS fails to address the cumulative and growth-inducing impacts of the project. If the project is built as proposed and turns this area of the town into a major commercial center, then the other vacant parcels will be developed and will impact the environment. The PDEIS must fully assess those impacts and assume a full build-out of those properties. Included in that assumption is the impact on water supply and wastewater resources. The PDEIS should discuss whether any surrounding undeveloped properties will have the potential of connecting to Widewaters' water supply or wastewater systems which may facilitate the development of those parcels. G. Visual Impacts/ Aesthetics/Community Character/Historic Resources Marilyn Kaplan, an architect and principal of Preservation Architecture and a member of KNGG is submitting comments on the visual impacts/ community character and historic resources under separate cover. Ms. Kaplan's comments illustrate the significant deficiencies of the PDEIS. In addition to Ms. Kaplan's comments we note the following: 1. While there is a vague reference to a lighting plan, there is no detail as to what that plan will be and the nighttime effects of the lighting for the project. Closely related to this issue is any discussion as to whether one or more of the retailers will operate on a 24 hr basis and the subsequent effects of such operation on lighting and overall community character. 2. Traditional, decorative lamp posts with low output luminaries no more than 12 feet tall should be considered along sidewalks and at any community focal point. These can be integrated with the overall high pole illumination system. 3. The PDEIS and the site plan are completely silent on the issue of signage for the project. The PDEIS must identify if there will be any roadside or other signs for the project. H. Ecological Impacts 1. The PDEIS states that approximately 9 acres of the site (the A/R zone) will not be developed and maintained as open space. Besides the fact as noted above that Widewaters intends to illegally locate the septic systems in that area, Widewaters provides no assurance that the area will remain undeveloped. The DEIS should clearly state whether that area will subject to a conservation easement or some other deed restriction assuring that the parcel will not be developed. 2. Appendix F of the PDEIS includes a May 15, 2002 letter from NYSDEC noting the possible presence of endangered and threatened flora on or in the vicinity of the site. NYSDEC noted reports of Reflexed Sedge (carex retroflex) an endangered species and Yellow Wild Flax (linum sulcatum) a threatened species in or on the area. The PDEIS is otherwise silent on this report and does not include any site inspection by a qualified biologist indicating an inspection for these species. * * * The foregoing represent KNGG's preliminary comments on the completeness of Widewaters' PDEIS. As demonstrated, significant revisions are required and substantial additional information must be provided. KNGG appreciates the opportunity to offer these comments to the Planning Board and looks forward to working with the Planning Board in the continued review of this project. Very truly yours, Jeffrey S. Baker |
