Kinderhook Neighbors for Good Growth

I. Introduction Kinderhook Neighbors for Good Growth ("KNGG") submit these comments on the Supplemental Draft Environmental Impact Statement ("SDEIS") for the Widewaters Commons Shopping Center ("Widewaters" or the "Project"). These comments are in addition to the comments submitted in November 2002 on the original DEIS. At that time, KNGG noted the glaring deficiencies in many aspects of the DEIS and the project itself and protested that the Planning Board could not continue its SEQRA review without correcting the deficiencies of the DEIS in a Supplemental EIS. Fortunately the Planning Board recognized its error in accepting the DEIS and ordered the preparation of a SEIS. However, the scope of the SDEIS was limited and did not address all of the deficiencies in the DEIS. Moreover, Widewaters was not directed to respond to the DEIS comments as part of the SDEIS. Therefore, KNGG reasserts its comments of November 2002 and puts Widewaters and the Planning Board on notice that any new information contained in a FEIS which was not previously available for public comment, must be provided in another SEIS to allow for meaningful comment.

While the foregoing comment concerned missing elements from the DEIS which were not covered in the SDEIS, there are also on-going problems with new material submitted since the SDEIS was accepted and released for public comment. Specifically, upon information and belief it appears that Widewaters has submitted architectural renderings and design details for the project which are completely different from what is included in the SDEIS. Those submittals have not been distributed to involved agencies or interested parties and thus those parties have not been given an opportunity to comment on the submissions. Until those materials are made publicly available and a reasonable time frame is provided for comment, the Planning Board cannot consider continued revisions to the design elements of the project.

Taken as a whole and evidenced by the numerous public comments submitted to date, the Widewaters project is out of scale with the community and is located on a parcel which exacerbates its problems of scale without providing sufficient community benefits. Contrary to the tone of much of the public discussion fomented by Widewaters, this is not an issue of the desirability of a new supermarket in Kinderhook. KNGG has long supported diversity and competition in shopping alternatives. The issue is the size of the project and the unnecessary problems it will cause the community by being located on this parcel. As the SDEIS demonstrates, the location at a problematic intersection only compounds the existing problems and the preferred way of dealing with the situation by a roundabout will fundamentally alter the character of this section of Kinderhook and change the traffic patterns in the area. There are significant concerns as to whether such a change is beneficial and desired by the majority of the people in the town. Notwithstanding general statements of support from NYSDOT, this is not a NYSDOT project but rather a proposal from an private developer and NYSDOT has simply opined that the only possible means of dealing with the traffic is by a roundabout. It is entirely within the Planning Board’s authority to determine that this project, with its environmental problems is inappropriate for this site and not permitted. It is not the responsibility of the Planning Board to make a project work on a difficult site - it is the responsibility of the applicant to choose a site that minimizes or avoids adverse impacts. Where the developer has chosen an inappropriate site, it is incumbent upon the Planning Board to reject the project.

Set forth below are KNGG’s comments on the SDEIS organized by the subject matter. Also attached hereto are additional comments from Sara Richards and Mark Litteken. Ms. Richards and Mr. Litteken are on the Board of Directors of KNGG and the attached comments were also presented at the August 27, 2003 public hearing on the SDEIS. Also attached are comments on the traffic section provided by KNGG’s traffic consultant Vollmer Associates. Finally, the comments of Howard Brandston regarding the impacts from and design of the project lighting are also included. Mr. Brandston’s comments were also presented at the public hearing. In addition to these comments, many members of KNGG are sending comments directly to the Planning Board and should be given full consideration.

1. As noted in KNGG’s comments on the DEIS, Widewaters failed to compile accurate data for existing traffic conditions by failing to collect data during a period of normally heavy traffic. Instead, Widewaters collected data in mid-August when school traffic is non-existent and other traffic is traditionally lighter due to vacation schedules. In the SDEIS Widewaters claims to have supplemented its traffic analysis with additional traffic counts, however that data is not supplied in the SDEIS.

2. In the DEIS, the project only proposed adding project access to the existing intersection and changing the signalization. As such it was acceptable for that traffic study to only consider the impact from the project on the intersection and thus only look at the afternoon peak travel time to assess the project’s impact. In the SDEIS, however, the proposal is for a roundabout that will need to operate under all conditions and not just those associated with peak operation of the shopping center. As lead agency, the Planning Board has the responsibility to determine that this proposed change to the primary intersection in the town works under all conditions, particularly the morning commute. However, the SDEIS is absolutely devoid of any information on morning traffic conditions and the impacts from the roundabout on the morning commute. Widewaters has not supplemented its traffic study with a morning traffic count and has not modeled the roundabout for the morning peak. As noted by Vollmer, such an analysis is a critical flaw as one cannot extrapolate morning conditions from evening conditions and without raw data and a model run, it is impossible to predict what the effect will be. Furthermore, the data supplied by NYSDOT is not a complete traffic study and cannot substitute for a comprehensive analysis. If this project were to enjoy further consideration, Widewaters must be directed to conduct a complete traffic study that includes AM peak travel.

3. Vollmer also points out that Widewaters’ traffic analysis is essentially comparing apples to oranges as it attempts to argue that use of the roundabout will provide an acceptable LOS. Vollmer notes that Widewaters has not supplied the necessary reports from its computer model using the Webster Method which is the only accepted means of evaluating compliance with the Highway Capacity Manual LOS. The HCM does not use the percentile delay method for LOS. There can be no independent verification of Widewaters’ representations without the proper computer runs presented in the accepted format. Considering Widewaters’ less than stellar record of refusing to provide details and supporting information to the Planning Board and its misrepresentation of the facts of its project, it is necessary that the Planning Board’s consultants and the public have all of the necessary information to verify Widewaters’ claims.

5. In less than 20 years, by Widewaters own analysis, the roundabout will be operating beyond capacity and in a failure condition. Widewaters has refused to provide even preliminary design details to show that there is an adequate right-of-way for the current design, let alone future needs. The Planning Board should require a complete survey demonstrating sufficient right-of-way for now and the future. Any possible relocation of the roundabout into the Widewaters project must be taken into account now and changes made to the Widewaters site plan since such changes will alter the design of the interior road-way, parking and the aesthetics of the project.

6. Vollmer notes that roundabouts remain a novel approach without a lot of practical experience in their long-term viability, especially when they involve five-legged intersections and NYSDOT also considers them as "experimental". If the project were to be approved, then the Planning Board should require Widewaters to undertake a post-construction traffic study to gauge the effectiveness of the roundabout and provide for any alterations to the roundabout to correct any design deficiencies. The study should be conducted 2 years after the project is completed and include new traffic counts, capacity analysis and a comparison of the actual results to those of the original study and should include an accident analysis. Widewaters should be required to post a bond at this time to cover both the cost of the post-construction study and the potential necessary improvements. There is precedent for such a requirement on the developer. When Pyramid was proposing the Palisades Center Mall in Nyack, the Planning Board required Pyramid to post a bond for a post-construction traffic study and the cost of further signalization if it was determined that it was required.

7. The SDEIS does not attribute any growth factors for the driveways into the project when it is calculating future growth in the area and capacity of the roundabout to handle the growth. Unlike an office park or similar type of development, use of this shopping center, especially the supermarket will continue to grow as the area grows and it is simplistic to claim that the trip generation figures and use of the driveways will not change in the future. As Vollmer notes, a sensitivity analysis of the driveways is required.

9. The SDEIS is less than clear about Widewaters’ responsibility for constructing the improvements if they are approved. Widewaters must specifically commit to paying for all of the necessary traffic improvements including the roundabout and the new traffic signal at the intersection of Route 9 and Main Street. Particularly in regard to the latter, while that intersection is already operating at an undesirable LOS, by Widewaters’ own analysis, its project will exacerbate the situation and Widewaters is responsible for the additional costs. While KNGG does not support approval of the project, any approval must include a condition that a building permit for the project will not be issued until Widewaters has obtained all necessary permits for the traffic improvements and a Certificate of Occupancy should not be issued until all of the traffic improvements have been completed. These conditions are necessary to assure that if the project is built, all of the mitigation measures are properly in place before the impacts of the project are imposed upon the town.

In its noise impact analyses, Widewaters again appears to comply with the mandate of the Planning Board and on initial impression gives the indication of presenting a comprehensive and accurate assessment of the noise impacts from the project. However, a careful consideration of Widewaters’ own analyses as well as an accurate application of DEC’s noise assessment guidelines makes it apparent that the project will result in significant noise impacts on surrounding properties. After project completion the noise generated from Widewaters Commons will be intrusive and objectionable to neighboring residential uses and will effectively preclude development of currently vacant property in accordance with its current zoning.

1. The SDEIS understates the noise impacts by mischaracterizing the thresholds identified in DEC’s Guidance Document "Assessing and Mitigating Noise Impacts" Revised June 3, 2003. Widewaters focuses on using the L_eq sound measurement which is an equalized sound pressure reading over time and attempts to average out the sound levels. By contrast the L₉₀ measurement is generally accepted as the best measure of background sound since it establishes the level of sound exceeded 90 % of the time. DEC’s guidance document recognizes the use of the L₉₀ as a better measurement tool. (DEC Guidance, p. 12).

2. The SDEIS also provides an incomplete catalogue of the intrusiveness of noise levels. While the SDEIS properly quotes the DEC guidance on increases of 3-6 dB, it omits to point out that increases greater than 6 dB require careful scrutiny and assessment and "that increases approaching 10 dB result in a perceived doubling of Sound Pressure Level. . . . An increase of 10 dB(A) deserves consideration of avoidance and mitigation measures in most cases" (DEC Noise Guidance p. 13-14). Furthermore, the DEC Guidance notes that increases of 5-10 dB are considered intrusive and increases over 10 dB are very noticeable.

3. Using Widewaters own analysis but looking at the measurements which provide the most accurate picture of the change in the environment, it is clear that the project will have a significant and unmitigated adverse impact. To measure the change in the background noise level a comparison must be made to the daytime and nighttime L₉₀ readings with and without the project. By using the L₉₀ the Planning Board will most accurately consider the change in the general environments, uninfluenced by random, infrequent and unusually loud noises. Set forth below is a table which compares the L₉₀ readings, daytime and nighttime at receptor sites R4, R5 and R6.

Site R4				Site R5					Site R6
	Existing	Proposed	Change		Existing	Proposed	Change	Existing		Proposed	Change
Daytime L₉₀	45	59.7	14.7		42.8	53	10.2	47.2		54.5	7.3
Night L₉₀	40.5	52	11.5		40.2	48.2	8	41.0		51.6	10.6

Compared to the SDEIS where Widewaters attempted to understate the noise impacts by stating that the only change at the receptors measured in Ldn was only 2.7 to 6.7 dB, a more accurate reading using the L₉₀ measurement show that increase will range from a minimum of 7.3 to as high as 14.7. More importantly, of the six important receptor measurements (day and night at each of the three receptors) four will show increases greater than 10 dB. That increase, at residential areas constitutes a perceived doubling of the existing sound levels and is, by definition intrusive. As provided in the DEC Noise Guidance, noise level increases greater than 10 dB should be avoided.

4. The existing surrounding environment is characterized by either existing residential properties or currently vacant land zoned for residential purposes. Operation of Widewaters Commons will significantly adversely impact current residential land uses by more than doubling the existing sound levels. For properties that are not currently developed the presence of Widewaters will adversely impact their ability to be used for residential purposes since the increased noise levels will be significantly higher than currently and inconsistent with the quiet semi-rural environment that residents seek. If those properties cannot be put to residential uses because the neighboring land use is incompatible, there will be strong pressure to change the zoning on those parcels and continue the spread of commercial uses that are not as sensitive to higher noise levels. Thus, the initial introduction of a large shopping center with dramatically increased noise levels will be the proverbial camel’ nose under the tent - changing the character of the area and making future residential development as envisioned in the comprehensive plan and the zoning code, far less and attractive and promoting the type of commercial sprawl that the comprehensive plan is intended to prevent.

5. Considering the dramatic increase in noise that the project will produce the Planning Board should deny approval for creating an unmitigated adverse impact. At a minimum, the applicant must be required to produce far greater noise mitigation of both the equipment and the size of the project, including re-positioning the buildings farther from property lines. In addition, contrary to the statement in the SDEIS, further mitigation is required and the project must include sound-buffering berms and other structures to mitigate the significant adverse impacts the project will cause.

1. As noted previously, it is our understanding that the Planning Board has received and is considering an alternate design for the project, however those plans have not been made available to KNGG and public comment has not been solicited. Therefore, KNGG is at a disadvantage in its ability to comment upon those aspects of the project. KNGG respectfully demands that it be provided copies of any new design details and be given an opportunity to comment upon that proposal. Until such time, KNGG’s comments on the zoning and design elements of the project must be considered preliminary.

2. Reference is specifically made to the comments of Howard Brandston, whose comments are attached hereto as Ex. B. Mr. Brandston notes that the proposed lighting fixtures are out of scale with the project and the surrounding community and will produce both light pollution and a change in the character of the area. Widewaters must be required to present a detailed assessment of the lighting impacts of the project.

3. While Widewaters is apparently requesting a variance from some of the design requirements of the zoning code, it has failed to provide details of the alternatives to be considered. Widewaters has only provided a design analysis and visual impact analysis of what it is proposing, not what is otherwise required or less drastic variations from the design standards. Without a comparative analysis of the alternatives, it is impossible for the Planning Board to fulfill its SEQRA obligations to take a hard look at the relative impacts of the proposals. Widewaters must be directed to supplement its EIS with details of the project in compliance with the newly adopted design standards.

4. Needless to say Widewaters statements that the new design standards were somehow foisted upon them must be disregarded. As the record makes abundantly clear, Widewaters was the moving force for the rezoning of this parcel in 2001 and specifically requested that the project be considered under the current zoning code so that it could benefit from the re-zoning and the accompanying increase in the bulk restrictions to allow a project of this size. Having chosen the path it sought to pursue, Widewaters must recognize that any hardship associated with that decision is self-created and it must comply with the new restrictions.

5. This is the first major project considered in the town under the new zoning design standards. If those standards are to have any meaning, they must be applied to projects of this magnitude that have maximum impact upon the character and fabric of the town. A developer of Widewaters’ stature has the means to comply with the town’s vision of future development and must respect that vision. If the Planning Board fails to require a developer with these resources to meet the requirements of the new law, it will lose all credibility in attempting to require small businesses to do the same, and the result would be a complete destruction of the intent of the new zoning law.

6. Consistent with the foregoing is a recognition that pursuant to the comprehensive plan, the fact that the property is zoned for business uses and is of a given size is not the same as a finding that it is appropriate for this scale of development. Many other factors as outlined in the DEIS and SDEIS must be considered and evaluated to determine if this specific development is appropriate. It is critical to point out that when this parcel was re-zoned from agricultural to business use, the Town Board did not undertake any review under SEQRA for the re-zoning so there is no presumption that the full environmental impacts of a full build-out of the parcel was ever considered. Therefore the Planning Board has the full responsibility to determine if this project is consistent not only with the zoning code, but also with the comprehensive plan.

The Planning Board must carefully consider not only these comments, but the other comments it has received in writing and orally and must also consider the still unanswered questions from the DEIS. When viewed as a whole and considering the enormous gaps in analysis of the adverse environmental impacts of the project, it is clear that the project as proposed does not minimize, avoid or mitigate that adverse environmental impacts to the maximum extent practicable and as such the Planning Board must decline to approve the project.