Growth In Milan

Training Opportunity - Saturday, March 6th, 2010 - 8:30am - 1:00pm‏

land-use planning:opportunities for collaborative ecological stewardship

A Briefing on New Energy Efficiency and Alternative Energy Initiatives
and Funding Strategies for Municipalities
How Your Municipality Can $ave Money and Make a Real Difference for
Its Residents and Businesses by Choosing $ustainable Energy Options
Sat., Feb. 27, 9 AM - 1 PM
SUNY/New Paltz Lecture Center 102
(SNOW DATE: Sat., March 13)

Marcellus Shale Drilling -- State-wide rally and lobbying day
Albany -- Monday, January 25!

JOIN US! Let the Governor and other policy makers in Albany know of your concerns about hydrofracking.
This statewide rally is being coordinated by folks from Catskill Mountain Keeper, Environmental Advocates and many local groups. Appointments are being set up to meet with state legislators who will be key to this issue.

The current master plan guiding Milan’s development was adopted in 1986; the new Comprehensive Plan completed by the Milan Comprehensive Plan Special Review Board in 2005, was originally adopted by the Town Board in January 2006. It was declared null and void by the State Supreme Court in Dutchess County in February 2007 following a law suit by Red Wing Sand and Gravel. The Plan was readopted in August 2007. In a very disappointing, poorly written - and the Town believes, flawed – ruling, the 2007 Plan was declared null and void in March 2008 by the same justice who declared the plan void in the 2007 ruling.

The Republican administration agreed to appeal the ruling only when assured that the costs of litigation would be borne by private citizens, if necessary, not the Town budget. Utilizing a previously unexercised indemnification provision of the Greenway Compact to which Milan is a party, the State of New York, after reviewing the merits of the case, determined to support the town by having the Attorney General’s office assume the responsibility for the Town’s appeal at the State’s expense. All papers have been submitted; a schedule for oral arguments and a decision by a 3 judge review panel are pending from the Supreme Court Appellate Division. This will most likely come after the current election cycle is completed.

A Comprehensive Plan is the basis for the establishment of zoning regulations in a town, and the State Courts give great deference to the interests of town citizens when properly established. The 1986 Comprehensive Plan encourages mining. While containing much analysis and many recommendations, a critical element of the 2007 plan is that the new plan establishes the clear basis for elimination of the floating light industrial zone in Town, the zoning regulation that permits the conversion of residential property to industrial uses including mining. Thus, Red Wing’s persistent law suits against the Comp Plan. In parallel with the Comprehensive Plan, the Town Board adopted new zoning regulations to do so when it enacted the Comprehensive Plan. That zoning law was also challenged by Red Wing and has followed a similar course, and is part of the Town’s appeal. In short, the court’s ruling violated Milan’s right to home rule.

Pawling, in our own county, had a similar experience with the courts when they banned new mining. They lost in Supreme Court, but their law was reinstated upon Appellate review. There are strong precedents in other counties as well.

It is critical that the Comprehensive Plan and zoning regulation be reinstated, otherwise there will be a clear path for mining companies. Not only is there the proposed Turkey Hill mine, but Red Wing owns another potential mine property at the intersection of Academy Hill and Willow Glen roads. Other commercially viable mining deposits have been identified on Red Wing maps off Shookville and Milan Hollow roads, and numerous other sand and gravel deposits they chose not to identify as commercial.

There are elements of the plan that current members of, and new candidates for the Town Board do not support. That is their prerogative and changes can be made in the plan following additional community input. However, first reinstating the 2007 Plan before making those changes is necessary to protect the Town from becoming the mining center of Northern Dutchess, and to protect our right to home rule.

Every candidate for the Town Board should be asked their position on the appeal and on mining in Milan!

In Part I (see Growth Issues) of this review on the Comprehensive Plan, I covered the status of the plan (it was declared null and void in the matter of Red Wing v. The Town of Milan by Justice Brands of Supreme Court, Dutchess County, and is on appeal and awaiting decision by the Appellate Division of the State Supreme Court), and what is at stake in this matter (the ability to prevent further mining in Milan and the right to home rule). Part II of the review focuses on the background of this situation and outlook for success of the appeal and the town’s ability to successfully preclude additional mining.

There are four reasons why I believe the Town of Milan will prevail in this appeal. First, when the Comprehensive Plan was passed in 2007, the Town Board and its attorney worked diligently to ensure that the all procedural requirements were met, including the completion by one of the leading environmental planners in the region of a Generic Environmental Impact Statement, the most rigorous of the options under the State Environmental Quality Review Act (SEQR); second, Justice Brands of the Supreme Court failed to perform a reasoned analysis based on the evidence presented; third, Justice Brands used the wrong “standard” for evaluating the legality of the Town’s action; fourth, State law and court precedents in similar cases argue strongly for the Town’s position. In effect, the ruling in the case of Red Wing v. Milan denies the town a fundamental of New York State law, the municipal right to home rule.

The Town made some procedural errors when we initially adopted the Comprehensive Plan and the Zoning law eliminating the floating light industrial zone in 2006. When preparing for the first law suit the town found that the Town Clerk had failed to file the legal notice with the local paper for the required public hearings, which was a serious failing. Red Wing had raised this issue only with respect to the zoning law, however, not the Comprehensive Plan. There were a couple of other minor procedural issues that the town and our attorneys believed, incorrectly, would be insufficient to void the Comprehensive Plan.

Our subsequent experience has demonstrated what appears to be the bias of the justice who has ruled on this case. In 2007, the Town Board carefully completed all procedural requirements and re-instituted the SEQR process doing a full EIS to ensure that there was no basis in SEQR for overruling the reenacted plan and law. The written decision of Justice Brands is a travesty: he listed many of the claims Red Wing made without even checking the town’s procedural record, and failed to acknowledge in his decision the towns direct evidence to the contrary – i.e. that we had fulfilled our procedural obligations. Despite the full record of community involvement and written documentation and analysis, he ruled that the zoning regulation was arbitrary and capricious. He determined that the town could have met its goals using “less restrictive means”, a standard that does not apply in this instance. In zoning cases, the courts have used a standard that the regulation must bear a substantial relationship to the objectives the town seeks, a standard much more deferential to local determination. Clearly the town’s law meets that standard.

In short, the ruling violated Milan’s right to home rule. It is my personal believe the court decision was biased and politically motivated. It is interesting to note that Red Wing has been a major contributor to County Executive Steinhaus, and has contributed to Justice Brands in years’ past. I know that Steinhaus discriminated against Milan after a visit from Red Wing officials to his office by refusing to process a planning grant that was approved and referred to him by the Dutchess County Planning Board: I was specifically told it was because the Town intended to ban mining. Further, Milan has twice since then, under two administrations, also been denied well justified community development grants it applied for without explanation.

That doesn’t mean the Town can’t win, but it does mean it will only win if it demands and defends its home rule rights, and the Town Board has the will to do so. If the town ends up allowing additional mining in Milan, it will be because the town board let it happen.

The DEC issues mining permits, but they are subject to the zoning laws of the town. If mining is clearly prohibited, DEC will normally not process the permit. A report with the Administrative Law Judge’s SEQR findings on the proposed Red Wing mine went to the DEC commissioner over a year ago; a final decision is pending. Even were a mining permit to be granted, it would not permit mining unless permitted by town zoning.

The outlook for winning the Town’s appeal is very good. It could mean an outright reversal of the Supreme Court decision, which is what is hoped for (and warranted in light the bias shown in that Court’s initial ruling). This would largely eliminate Red Wing’s options. Red Wing could appeal the decision to the Court of Appeals, but overturning an appellate division ruling would be difficult. They could also sue on new grounds and might try. However, the appellate division decision could also vacate the decision and refer the case back to the Dutchess County Supreme Court with guidance for reconsideration. Given the litigation history in Dutchess County thus far, the Town could anticipate a similar result: Town Board would need to have the courage to represent our opinions and appeal again.

Will you see this process through to the end to prevent further mining in Milan?