As the crowd had dwindled from over 200 to about 50 by the time I got to give Part 2 of my remarks at the public hearing Monday night, and since it was ruled by the two chairs, Wes and Dwight, that I could not have a Part 3 even though the meeting adjourned a half hour before its scheduled time, I thought I would revise and extend my remarks here.
This also gives me the opportunity to make my case in a more leisurely fashion than the hurried way I was forced to try to combine Parts 2 & 3 together. By way of introduction, however, I will briefly summarize Part 1 which was given at about 6:20 and thus was missed by people who came in later and those who didn’t attend at all.
Any discussion of PDD zoning must begin with NYS Town Law 261-c which authorizes the use of the technique. That laws holds that Plan Development Districts can be used to “provide for..land uses…in which economies of scale, creative architectural or planning concepts and open space preservation may be achieved in furtherance of the town comprehensive plan and zoning local law or ordinance.”
In many obvious ways, the Newman PDD application is not “in furtherance of the town comprehensive plan and zoning local law or ordinance”of The Gateway District. (These discrepancies have been amply documented by PDDG and will be submitted again as part of the written comments.) As such, I am convinced that should this application go forward and ultimately be approved it would be defeated in court as illegal spot zoning.
This is a simple statement of legal opinion that has nothing to do with whether I think a Lowe’s should be in Geneseo. In my campaign, and again Monday, I have expressed sympathy for those who want the Lowe’s. I understand the desire for shopping convenience and for keeping our sales tax in the county.
Wanting the Lowe’s to come, however, no matter how badly, does not change the fact that the PDD process is being illegally misused. My message to the developers and their supporters was “You can’t get there from here!” I urged Newman to withdraw its application and resubmit it after a new master plan and new zoning is adopted that allows for their proposed use.
Naturally, I don’t expect Newman to follow this advice, especially considering the source, but that will be a mistake I believe they will live to regret. As I told Mr. Kamlet and Mr. Greiner, “In politics, the hardest thing is to figure out who your real friends are!” Thus ended Part 1 of the sermon.
Before beginning Part 2, almost four hours later, I sought clarification from the Chairs as to whether I would be able to have a Part 3 if I was unable to complete my remarks, and there was time remaining before 11. After being informed by counsel that they did not have to provide me extra time, the Chairs ruled that I would have to finish up in just one 5 minute period.
Turning my attention to the town board, I urged them to “end the madness” and dismiss the PDD zoning request on the same basis as I had argued in Part 1 that the developers should withdraw. Naturally I don’t expect the current board, the architects of this failed policy, to do any such thing.
Turning my attention to the DEIS itself, I pointed out that the 1100-page document did not meet the requirement of SEQR regulation Sec. 617.9 (b) 2 that”EISs must be clearly and concisely written in plain language that can be read and understood by the public.” I characterized the DEIS as “intended to obfuscate rather than elucidate.”
I then urged the planning board to resist the predictable cry from the developers that there is no reason to go forward to a Final EIS and they should simply vote that there will be no adverse environmental impact. I further urged the planning board to take control of the drafting of the FEIS by hiring their own engineers and charging a fee to the applicant as authorized by SEQR regulation Sec. 617.13 (a).
That regulation allows the town to charge a fee of as much as 1/2 of one per cent of the total cost of the project including land costs, which will probably be at least $20 million, yielding a fee of about $100,000. I further characterized letting the developer’s engineers work on the EIS was akin to “putting the fox in charge of the hen house.” I then noted that under SEQR regulations, the lead agency only has 45 days from the public hearing to produce the Final EIS, so they need to get busy!
Turning back to the town board, I noted that some of them might not survive next week’s election. If that happens, I cautioned the board against taking any lame duck action to pass the PDD zoning before the Planning Board finishes its work on the EIS. I pointed out that any such action would be a clear violation of the Geneseo PDD law itself.
Section 106.60 of that law requires that before approving the PDD application, “The Town Board must also determine that there will be no significant environmentally damaging consequences…” For the town board to attempt to make such a finding while the lead agency has not yet concluded a year-long study of that question would clearly be premature and improper.
Although I ran out of time to make my final point, there is also clear language in the SEQR regulations which prohibits any such action. Sec. 617.11 (c) provides that “No involved agency may make a final decision to undertake, fund, approve or disapprove an action that has been the subject of a final EIS, until … the agency has made a written findings statement.”
The regs give the planning board up to 30 days to make the findings after completing the FEIS and also require that the findings can not be made until at least 10 days after the final EIS is adopted.
To summarize then, the calendar looks like this: The Planning Board should decide at its Nov. 12 meeting to prepare a Final EIS with their own engineers (and at the applicant’s expense). If they do, they will have until Dec. 13 to complete it, although the SEQR regs do allow for extensions.
Assuming the board completes the FEIS on time, they can adopt written findings on the project any time after Dec. 23, but they don’t have to until around Jan. 12. Only after those written findings are made, and assuming the findings are favorable to the developer, can the Town Board vote to approve the PDD zoning.
Throwing a wild card into this whole scenario is the probability that the whole mess will have to make a return trip to the County Planning Board before the town can vote. Although it is clear that the fix is in at the county, this all takes time.
That should make for a Merry Christmas for everyone!