Comments of KNGG Board Member, attorney Meg Moran

Comments of Meg Moran

Widewaters’ Shopping Center Application

As spoken at the Site Plan Hearing on March 4, 2004

Meg Moran is a member of the KNGG Board of diectors and an attorney specializing in corporate law.  Ms Moran has served on the Town of Kinderhook Planning Board and as a member of the Kinderhook Comprehensive Plan Comittee.

Good Evening. Thank you for this opportunity to address you regarding the Widewaters’ request for site plan approval. My name is Meg Moran, I live on State Farm Road in the Town of Kinderhook. I would like to speak, as usual, about the significant adverse impact on traffic that your approval of this proposed project would have. But first, I just want to mention that I know that this has been a long, arduous process for you, and I know that you have yet to tackle what promises to be your hardest work yet on this project. Thank you for all of your time and attention to this matter over these past couple of years. No matter what you decide, I am grateful for your service, and I’ll admit I’m glad that I’m not among you.

I think a lot of people involved in this process have tried to obscure fundamental problems with this proposed project and have been disingenuous in their participation. As a result, I think your efforts to conduct a professional, high-quality review of the application have often been more frustrating than necessary. That some of you, and, sometimes, this Board as a whole, have been berated and condemned for doing only or simply what you are by law obliged to do has been unfortunate. I think most of us are sorry that this application has been so divisive in our community. I wish we all could have stuck to the facts in our discourse and debate, and I wish that those who used our disagreements to foment bad feeling for their own purposes hadn’t. In some ways I think some of the lack of decorum and civility we’ve witnessed or been subjected to at times has been more damaging to the integrity and vitality of our community than any ill-conceived development could be.

With that in mind, I assure you that my comments are intended to clarify -- not obscure -- issues relevant to your work, and my goal is to facilitate -- not frustrate -- your deliberations toward the outcome I believe best for our community. I am confident that a clear, straightforward review of the information before you will lead you to the reasonable, legally sustainable, conclusion that this application should be denied.

Many who have urged you to decide as they see fit have made comments during the course of this 2 -3 year process that reflect a fundamental lack of understanding of the law and what at times has seemed like a willful lack of familiarity with the facts of this application. That is not the case with my comments. With respect to my understanding of the law, though my experience as an attorney has been primarily in the area of corporate finance and corporate mergers and acquisitions and not in the area of environmental law, and though I would certainly expect you to get your best guidance from the environmental attorneys available to you – Mr. Gerstman and, of course, our Mr. Baker, I am familiar with the laws and regulations governing your work, and I do have some experience in the area. I acquainted myself with the relevant law when I served on this Planning Board, and, when this Board denied an application on the basis of traffic during my tenure, I drafted the findings and some of the papers that supported our successful defense when we were sued by the applicant in that matter. We prevailed when that action was brought, and won again on appeal. With respect to the facts, I have reviewed material relevant to my comments, including each of the DEIS, the SDEIS, and the FEIS, and the various traffic studies and analyses submitted therewith. I have also reviewed other traffic studies that have been submitted to you, including the traffic study you received a couple of weeks ago in connection with the Dunkin’ Donuts application.

Before I turn to my specific comments on traffic, I’d like to review a bit of history and some aspects of the process that bear on your site plan review regarding traffic and other matters. There have been many comments at hearings and meetings on this project, and many letters to the newspapers, about the fact that the parcels at issue here are zoned commercial. The FEIS in its current form makes much of this as well. The point seems to be that because this property (or some of it actually) was zoned commercial when the application was submitted, and because the application is for a commercial development, it should simply be approved, and it should be approved without any fuss. Certainly, there is a certain clear, simple logic to that approach. But if it is correct, then shouldn’t you ask yourselves, "Well, what is the point of this Board?" If the law anticipated a simple, objective process – if a zoning designation of commercial means that an application for commercial development is entitled to approval – then there just doesn’t seem to be any place for a board comprised of members of the community to review the application. Wouldn’t it be more efficient and logical to have the proposal vetted by an engineer, the code enforcement officer and maybe an attorney? Of course it would. But that’s not the way our Town Code and the process work. Instead, the application is submitted to a group of lay people from the community who are appointed by elected officials. Your terms exceed those of the officials who appoint you, and your terms are staggered so that no particular Town Board gets to stack the Planning Board. The very manner of your structure is designed to insulate you from political pressure and whims, and to provide you sufficient tenure to become knowledgeable and experienced in the areas relevant to your work.

The Town Code provisions that govern your review of a project are full of subjective language. For example, words and phrases like "appropriate use of land", "to protect against unsightly land uses", "to provide adequate and suitably located commercial facilities", "to promote comfort, convenience, etc.", "to improve transportation facilities" appear in the zoning chapter and either directly or by reference in the site plan provisions. You are supposed to be a deliberative body, not merely ministerial figureheads – That is, you are supposed to exercise personal judgment and discretion. You’re supposed to debate, challenge each other, persuade one another. To simply approve any application on the basis of objective criteria only would amount to nothing less than abdication of your responsibilities under Chapter 81 of our Town Code, and other laws relevant to this process. To be clear, then, the fact that the property in question is zoned commercial does not mean that an applicant for commercial development is entitled to approval. It means, simply, that an applicant is entitled to your review of his or her commercial development proposal. Those who urge that this be approved without what they consider a lot of fuss have the advantage of advocating the simplest, most efficient course. But that’s not what the law provides for. The course established by law is not as efficient as a perfunctory review would be. It is somewhat messy by design. Now that is not to say there are no constraints on your discretion. Indeed, there are. You cannot make arbitrary, baseless decisions. Each of your findings and your overall determination on any application must be reasonable and even a project that presents significant adverse impacts must be approved if the impacts are minimized by reasonable mitigation. Whether or not a proposed mitigation measure is reasonable is what you must decide, and you must provide an explanation which supports your decision. You do not have the option of avoiding an issue because, as I’ve heard some suggest, "It’s too subjective an issue to be capable of resolution." You must address these tough subjective issues and make findings on each of them based on information before you and your individual and collective experiences as residents of this community. It’s a very human impulse to avoid disagreement and conflict over things about which reasonable people can disagree, but the law says you have to negotiate with each other and work toward some consensus.

Speaking of consensus, I need to address the matter of the Comprehensive Plan, and what guidance it has to offer us on this matter. The comments I’ve heard at your meetings and hearings and the statements in the current version of the FEIS regarding the Comprehensive Plan remind me of the proverbial observation that anyone can find any statistic in support of any point they want to make. As someone who served for a time on the Comprehensive Plan Committee, and who advocated its adoption, I was amazed when I first heard it said that this proposed shopping center is totally consistent with the Comprehensive Plan. By the way, has anyone else noticed that some of the biggest cheerleaders for this project who claim it’s exactly what the Comprehensive Plan calls for were also the loudest opponents of the Comprehensive Plan? Ah, the irony. Look, I could stand here and turn the pages of the Comprehensive Plan and cite word for word each provision which supports my recollection and sincere belief that the Comprehensive Plan, from the time it was conceived and through the whole process of the committee’s work, was intended to ward off exactly this sort of project – this project embodies what we wanted to avoid: large, retail, non-local development that would overwhelm smaller-scale local businesses and monopolize limited commercially-zoned acreage in a way that would preempt and preclude the Town’s fledgling efforts to nurture and attract local or smaller-scale businesses that might provide goods & services which town-wide surveys and feasibility analysis suggested we wanted to see – businesses such as those in the tourism, agriculture, non-retail sales, distribution and service areas, small specialty or niche businesses; future projects were supposed to be pursued and nurtured with a goal of complementing and coordinating the various economic and infastructure needs of and among the Town and the Villages of Valatie and Kinderhook. The goal of having our community try to shape our economic destiny and seek to have individual development projects proceed in accordance with a larger, coherent, scheme rather than in the hodge-podge fashion we’d been experiencing is expressed throughout the document like a drumbeat. I know that at least four other former Comprehensive Plan Committee members have publicly expressed that, in their opinion, this project is not consistent with the Plan, Mayor Dunham, former Supervisor Van Alstyne, Marilyn Kaplan, and Charlie Shattenkirk. In addition, two others from that committee, including its chair, sit on this Board. Certainly they can speak to these issues.

So, how has it come to pass that those who opposed the Comprehensive Plan as the beginning of the end of all good things in Kinderhook now come waving it like a banner in support of exactly what we didn’t want? How is it that the Comprehensive Plan has come to be cited by people taking very different positions on this project?

I’ve given it a lot of thought, and I think I understand it. Maybe it’s not so bizarre after all. You see, after the Comprehensive Plan was drafted and became the subject of public review and debate, and the implementation of the plan commenced with zoning code changes and the political process -- when all the horse-trading, negotiating, compromising, consensus-building capitulating messy process that is our democratic process kicked in, the inevitable last-minute, eleventh-hour changes were made. Naturally some of those changes were subject to more careful consideration and analysis than others.

One area that was not the subject of sufficient review was the significant increase in square footage allotment in the B-1 district. The impact of the square footage change is huge, not just in that the buildings themselves could be much larger, but, more significantly, because the types of businesses that would be attracted by such zoning bring with them significantly more traffic volume impact. At the time of its adoption, no traffic analysis had been done to evaluate or provide guidance to those negotiating and voting upon the Plan and the zoning amendments. The Plan called for future study of existing roadway conditions and capacity, and noted that significant traffic volume issues were facing the Town even then. Citing NYS Department of Transportation data and analysis, on pages 93 and 94, it is noted that Route 9 north of Main St. Valatie was at that time carrying over 10,000 vehicles on average per day, that that volume represented 80-90% of road capacity and that sections of Route 9 were close to capacity then – Though the date of the study is not noted, the Comprehensive Plan was published over 4 years ago and other DOT data cited suggest that the foregoing DOT analysis is 9 or 10 years old. Additionally, examples of DOT data regarding growth volume percentages – an issue critical to your evaluation of this project -- were cited: between 1992 and 1995, there was a 15% increase in volume in Route 9 near Bonds Funeral Home; on Route 9, near Wilderness Drive, there was a 12% increase between 1990 and 1994; and other changes in traffic volume generally showed increases ranging from 4 to 6% in other locations. Bear these percentage increases in mind when you consider whether Widewaters’ utilization of a projected increase of only 2% for the next 20 years is something you can endorse with a straight face.

Supervisor McGivney and others have observed that professional guidance regarding traffic considerations would have been helpful at the time of the adoption of the Comprehensive Plan and the zoning amendments related thereto. At the time that the application for the Widewaters’ project was first filed, the ink was barely dry on the Comprehensive Plan zoning amendments – indeed, some of them were still being made – and none of the traffic planning called for by the Plan had gotten underway before this project was on the table.

So, where does that leave us? Where does that leave the future of our community in general, and where does that leave you for purposes of your deliberations in particular? First, I think it appropriate that more honest references to the provisions of the Comprehensive Plan be made in the FEIS. There’s no reason why the document cannot include specific examples of how this project is at odds with the provisions of the Plan. At the very least, statements such as "On the one hand certain aspects of this project can be said to be consistent with the Comprehensive Plan . . ." and, "On the other hand, various aspects are not." Second, you should reject any suggestion that your careful consideration of each of the impacts of this proposed project has been preempted by the commercial zoning designation and the language of the Comprehensive Plan. The underlying premise or gist of the argument made by those who would have had you approve this project long ago is that somehow you are second-guessing the will of the community as expressed in the Comprehensive Plan and related zoning amendments. That is nonsense. In addition to the fact that that position conveniently ignores pages of Comprehensive Plan provisions and zoning code regulations, it defies both the law and logic – Nothing in the Comprehensive Plan or the zoning code amendments preempts or excuses you from the hard look you’re supposed to take at the specific impacts presented by each application before you. Moreover, the fact that no traffic planning was done or has been done at the behest of the Town makes it all the more incumbent upon you, the planners, to proceed prudently and most thoroughly. As a tax-paying resident of this community, I must insist that you proceed with great care here – We all know Widewaters is proposing to pay only its "fair share" (whatever that means) for the traffic light necessitated by the extent to which the increased traffic volume triggered by its project will exacerbate the troublesome Main St./ Route 9 intersection. So who’s going to pay for the inevitable expansion of the roundabout from a single-lane to a two-lane facility?

I ask that you proceed conservatively here for another reason. As a board comprised of Town residents, familiar with our history, our community, our roadways and other matters related to Kinderhook, and as the Lead Agency on this project application, only you can bring to this process a fully-informed, big picture understanding of the issues raised by the proposal. Even if every individual and agency participating in this project review had conducted their involvement impressively and admirably, I would still urge you to play the role of the protector of our interests and our purses, but the fact that our community has been badly served by others in this process makes your care all the more essential. I’m not talking about Mr. Marzocchi – He’s been chastised a bunch by a lot of other people for his behavior throughout this process. (Although I it did strike me as somewhat funny when I noticed a lengthy letter from him in one of our local papers recently – Despite the fact that he has chosen not to respond to questions raised by many in meetings and letters to the papers during the past couple of years, he saw fit to finally communicate directly with us about what? To provide a lengthy defense of his conduct with our upstate neighbors in Ithaca (with whom he’s engaged in litigation).) Anyway, he is answerable to Widewaters’ stockholders or principals be they individuals, or Pyramid or another corporate entity – it doesn’t really matter – he functions on their behalf and at their behest. While he probably could have managed to both represent Widewaters’ interests aggressively and present Widewaters as a better corporate citizen in our community, that tends to be a matter of style more than substance. He’s had his job to do, and I’ll leave it to others to quibble about his conduct.

Actually,what’s been much more disturbing than anything Mr. Marzocchi has done has been the conduct of our public servants at DOT. Almost two years ago, Supervisor McGivney wrote to DOT and asked for assistance. The letters he wrote are available for anyone to see, as they are part of his official correspondence. In his letters, he noted the recent development proposals or inquiries, including those regarding a Hannaford grocery store, a donut shop and a Stewarts, and he requested DOT’s assistance in a coordinated approach to the whole Kinderhook Route 9 corridor. This approach would have been in keeping with the stated goals and mission of the Comprehensive Plan, and, in any event, reflected a concern for the overall impact on traffic and safety that each of these proposals were reasonably anticipated to have and that, as Supervisor McGivney and others realized, needed to be addressed as a whole and not on a piecemeal, case-by-case basis.

So what happened next? Did DOT representatives meet with Supervisor McGivney and other Kinderhook officials to discuss the Town’s needs & plans as expressed in the Comprehensive Plan? No. Did DOT representatives offer to come work with our officials in an effort to facilitate our implemention of our local planning in accordance with DOT’s professed mission to work with local communities? No. Did DOT offer to send someone to take a look at pending applications with an eye toward helping us devise appropriate, reasonable roadway accommodations? No. Did DOT do any analysis or devise alternate traffic circulation options in response to Supervisor McGivney’s request for assistance at the behest of Kinderhook? No.

Now maybe Kinderhook just wasn’t on DOT’s priority list – surely the agency can’t respond with a full court press every time some town supervisor comes knocking. Communities wait years for DOT to be able to budget for and address their needs.

But what happened when Mr. Marzocchi went knocking? Did DOT review the traffic situation posed by his application? Yes. Did DOT devise a plan in an effort to accommodate Widewaters’ development needs and goals? Yes. Did DOT representatives attend meetings in Kinderhook at Mr. Marzocchi’s request and at the behest of Widewaters. Yes. It bothered me when taxpayer funded public servants, DOT engineers, accompanied Mr. Marzocci like his lackeys to meetings in our town.

DOT chose to involve itself only with respect to the Widewaters matter, not the whole 9/9H corridor.

Whose needs seem to be on DOT’s priority list? What’s gone on here? Can you conclude that a plan has been proposed by DOT at the behest of the Town of Kinderhook that is designed to address the needs and goals of the Town? No. A plan has been proposed by a developer at the behest of the developer that is designed to address the needs and goals of the developer. And DOT has apparently endorsed this plan to shoehorn a major roadway alteration into the busiest intersection in town despite the fact that we can calculate its failure, utilizing Widewaters’ own numbers and other data before you, not long after the pavement dries. Does that strike you as sound planning? Does that adequately and appropriately address Kinderhook’s needs? Is it fiscally responsible? No. No. and No. What does it accomplish? It gets the deal done & off their desks. Is that good enough for you? Is that good enough for Kinderhook? Is that a standard of care and level of work-product you want to embrace and support?

I’m not opposed to roundabouts. It has occurred to me that a roundabout conceived & designed to address the current and future needs and plans of the community might be a nice option for the 9/9H//State Farm Road intersection. Something designed by engineers and planners whose only concern, or client, is the Town of Kinderhook. Please note that when Widewaters’ repeats like a mantra throughout the FEIS that DOT would likely construct a roundabout here in any event, we’re talking about 2 different animals – One a 4-legged roundabout, the other a 5-legged roundabout plus 2 additional driveways. The former would address a currently-existing knotty traffic problem. The latter would be for the sake of a developer in order to salvage a proposed project that was otherwise going to die. Even if a 5-legged roundabout is on the horizon, it doesn’t follow that it has to be in support of a project of the scale and high traffic-generating nature of this one.

A quick look at the numbers illustrates the inevitable short-term failure of the roundabout. At pages 41-45 of the FEIS I found Widewaters’ responses to the Planning Board’s traffic consultant’s comments and questions very interesting. I didn’t expect more than short shrift in response to my comments, but one would have thought Ms. Johnston queries would generate more thoughtful responsive answers.

In one comment, it is noted that Ms. Johnston determined that under Alternative 2 (the proposed solution to the traffic problem), the total volume of traffic entering the roundabout is going to be at times greater than 2,100 trips when all four volumes shown on each of the five legs approaching the intersection are added together. Reference is also made to the ideal capacity of a single lane roundabout being 2,200-2,400 vehicles. In Widewaters’ response, it is said that the roundabout will degrade to a level of service E in approximately ETC+ 20 years when the total traffic volume would be approximately 2,800 vehicles, calculated on the basis of an assumption of 2% growth volume per year. Actually, if you do the math, using the factor of 2%, the roundabout will degrade, or fail, at year 15. In the revised traffic study which accompanied the SDEIS, Widewaters states that actual volume increase has been 2.4% (the source of this number is not provided). Applying a 2.4% factor to Widewaters’ estimate of 2100 vehicles in year 1, the roundabout would exceed the 2800 level and therefore reach Widewaters’ own judgment of degradation during year 13. What happens when we apply a 3% factor? Roundabout exceeds 2800 in year 10 or 11. How about 4% (a number starting to approach the actual growth volume experience of the Town as determined by DOT and cited in our Comprehensive Plan)? Failure in year 8. Look at the Dunkin Donuts study you were provided a couple of weeks ago. According to that report, total percentage change in traffic volume from March 2003 to February 2004 was 5.6%. This represents the most current data available. Widewaters’ numbers are stale. Applying that 5.6% actual growth factor to Widewaters’ numbers, we have roundabout failure sometime in year 6. Now that’s using a 2800 vehicle standard, not the 2200-2400 range of ideal capacity for a single lane roundabout.

Ms. Johnston put some questions to DOT also. Take a look at the responses she got: handwritten sentence fragments scrawled on a copy of her letter. (See Appendix J.) I cannot believe that this can be regarded as meeting any reasonable standards of quality, professional work. In any event, the response to Ms. Johnston’s first question should give you pause. She notes that the main site driveway for the shopping center will be the fifth leg of the roundabout and asks if there are any specific operational concerns associated with five-legged roundabouts. The four-word answer she gets: No – since single lane. Well doesn’t that beg the obvious question? So what happens in 4 years or 7 years or whenever within the next 15 years when this has to be expanded to a two-lane roundabout?

In her 2^nd question, Ms. Johnston asks if it is acceptable that two legs of the roundabout will intersect at less than 90 degrees. The answer? Two words: Yes – unavoidable. Well, no it’s not. It’s only unavoidable if you permit this proposal to continue careening on its way to the traffic morass it promises to yield.

While it’s true that DOT has jurisdiction to construct roadway improvements on certain of the roads within the town, it is absolutely the case that you have to satisfy yourselves and make written findings that each of the impacts of this proposal are reasonably addressed, including traffic, and you are not bound to ignore obvious facts and problems or to accept non-responsive answers to relevant questions.

Now has Widewaters provided you with a credible, persuasive basis for concluding that their proposed mitigation of the adverse traffic impact of this project is sufficient and reasonable? If a two-lane roundabout is not just foreseeable, but inevitable, shouldn’t you be evaluating that? That creates an entirely new picture in terms of scale, safety, traffic impact, impact on rural character, and all those areas you are supposed to be taking a hard look at, doesn’t it?

I keep hearing people say this is a done deal. It’s not done until you say it is, and it should conclude only on the basis of your reasoned findings following a hard look at all the data. We deserve more than a cursory glance, and you’ve spent too much time on this already to ignore all the loose ends and intractable issues in the interest in getting it done. Mr. Marzocchi has had plenty of time and leeway to get this done right. He hasn’t done so. Now it’s time for you to deny the application.

Thank you,

Meg Moran

Comments of Marilyn Kaplan, Architect

Comments of Marilyn Kaplan, Architect

as presented at the Site Plan Public Hearing March 4, 2004

Notes: