New Paltz’s wetlands law annulled by judge

Wetlands off Route 299 West in New Paltz. (photo by Lauren Thomas)

For a second time in less than a decade, a state Supreme Court judge has thrown out a New Paltz wetlands law. Justice Raymond J. Elliott III’s Sept. 4 decision annulled the town’s 2011 wetlands law in full for being unconstitutionally vague.

In his decision, the judge wrote that the Town of New Paltz’s law failed for one big reason — it didn’t include a map.

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“Maps displaying watercourses, wetlands and buffer areas are crucial to a town resident in determining if his or her property is subject to the wetlands law,” Elliott wrote.

New Paltz’s law sought to protect smaller-than-average wetlands — swamps 0.1 acre or larger in size and vernal pools, a kind of seasonal wetland used a breeding grounds by frogs and other amphibians. State law only protects wetlands 12.4 acres or larger. Justice Elliott did not scrutinize that smaller size restriction as being a problem — it was the lack of a map.

“The town did not identify what properties in the town are subject to the law’s restrictions,” he wrote.

Without a clear map showing exactly where those smaller wetlands reside, enforcement of the law is also an issue — since it “places the burden on the property owner to determine if his or her property lies in a wetland designation area.”

Elliott wrote further that the law was vague because no reasonable person of ordinary intelligence could read the law and know exactly what was disallowed. “In this instance, the court finds the wetlands law vague as it invites arbitrary or discriminatory enforcement or application.”

When asked to comment on the story, Supervisor Susan Zimet did not have much to say other than that a decision to appeal, or not, needed to be made by the full Town Board.

“The board has not had any discussion on the next step,” Zimet said. However, a discussion of the law’s annulment will be on the Town Board agenda.

In 2007, a similar wetlands law passed in 2005 was also thrown out by the Supreme Court. Back then the judge scrapped the law on procedure — town officials hadn’t properly filed the law with the Ulster County Planning Board as required.

Back then, the Article 78 lawsuit was filed by many of the same players who contested the 2011 law.

Peter Bienstock, the president of land investment and development firm Shawangunk Reserve Inc., is one of the people who sued over the law.

“We had previously sued and prevailed in annulling the prior wetlands law. The town turned around, ignored the specific language of the first decision on precisely this same point, and adopted essentially the same statute,” Bienstock said. “Thus the people of New Paltz have been subjected to perhaps $100,000 in legal fees and other costs in difficult economic times because the Town Board insisted on foisting on property owners an unconstitutional statute, which they should have known would not be upheld by the courts.”

It might surprise some to hear that Bienstock, who is the vice chairman of the Open Space Institute’s board, sued to overturn a law that could protect open space in the form of wetlands. He said he did so to get rid of an overly punitive and poorly written law.

“I see nothing inconsistent about being a strong supporter of land preservation and being an opponent of bad laws relating to land use,” he said, adding that New Paltz’s wetlands law was “one of the worst land-use laws I’ve ever seen.”

As for who was at fault for the law, Bienstock also placed the blame squarely on former Supervisor Toni Hokanson’s feet.

“The second passing of the law was pushed through, in the last hours of her tenure, by a lame-duck supervisor who had been rejected by her party and the voters,” he said.

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