On March 16, the Shandaken Zoning Board of Appeals (ZBA) voted, for the second month in a row, to extend the public hearing on the request from Catskill Mountain Railroad (CMRR) for a use variance to build a rail yard and 2000-square-foot maintenance shed on its property along Station Road in Phoenicia. Faced with conflicting information from Harry Jameson of CMRR and Rod Futerfas, attorney for residents opposing the variance, the board decided to consult with the town’s lawyer before continuing its deliberations.
Jameson presented the board with a citation from New York Railroad Law, asserting that railroad corporations, “without limitation of the powers given by the business corporation law,” are permitted to “erect and maintain all necessary and convenient buildings, stations, fixtures and machinery” required for their business. The railroad is also permitted to buy property and build on it as necessary. Jameson interpreted these regulations to mean that CMRR is not required to seek a use variance for its proposed building and yard, although the site is zoned residential, while the railroad’s activities are considered light industrial.
Futerfas zeroed in on the phrase “powers given by the business corporation law,” which he said referred to a portion of the law requiring publication of a certificate of corporation (which CMRR has) and a certificate of convenience and necessity, which must be issued by the Public Service Commission (PSC). Without the second certification, the permissions cited by Jameson do not apply, said Futerfas, adding, “It’s farfetched to think the Catskill Mountain Railroad would get permission from the PSC to put up a facility against zoning law. A use variance here is not permitted. The court of appeals has said when you buy a piece of property knowing its zoning and intending to use it for another purpose, you have created your own hardship and may not get a variance.”
The CMRR wants to use its 2.5-acre property, sandwiched between Empire State Railway Museum (ESRM) land along High Street and the Esopus Creek, to store and work on antique trains for the tourist railroad running between Phoenicia and Mount Tremper. High Street residents are concerned about such issues as pollution of soil, air, and water from the renovations and creating an eyesore through storage of railroad cars in disrepair.
Jameson considers these concerns unwarranted. He said detailed plans are in place for handling and disposing of any toxic substances released during renovation. The railroad has been working on trains for years in the ESRM yard, and their own yard will be hidden from the homes on High Street.
Although Jameson considered the reasons for the use variance moot because of the railroad law he cited, he went on to defend the application, supplying evidence that not obtaining a variance would prevent the railroad from earning a reasonable return on investment, among other criteria. Futerfas called his evidence insufficient and also reminded the board that the recommendations of the Ulster County Planning Board, which questioned CMRR’s proposal, were labeled “required modifications. A majority plus one of the entire board must vote in favor to overrule.” With one board member, Joe Michaels, recused as a member of CMRR, the ZBA must therefore vote unanimously to override the county’s recommendations, which include concerns about the rail yard’s location in a floodplain.
Jameson also disagreed with Futerfas’s allegation that the Kingston rail yard had failed a Phase One environmental study. If the CMRR loses its lease on the county-owned tracks (see Page 21), expiring on May 31, the Kingston yard may be closed. Opponents to the Phoenicia yard fear it will take on the cars from Kingston. Said Futerfas, “I think there’s a significant possibility you are going to get not a tourist attraction but a railroad graveyard.”
According to Jameson, if the CMRR loses its lease, the railroad will sell the Kingston cars for scrap rather than spend the vast amount of money required to move them to Phoenicia. If the lease is renewed, the county plans to seek another location near Kingston for the cars so the current yard can be turned into a linear park.
The public hearing on CMRR’s application will continue next month at the Wednesday, April 20, ZBA meeting at 7:30 p.m. at the Shandaken town hall.
Tracks almost clear
Meanwhile, CMRR has been busy clearing tracks. In 2013, Ulster County attempted to terminate the lease agreement on the tracks, alleging the railroad had failed to maintain the rails. Since then, CMRR volunteers have been clearing saplings and brush from the right-of-way and are almost done with the final stretch along Phoenicia’s High Street.
Brush crew foreman Ryan Lennox said the rails are now fit to carry trains all the way from Kingston to Highmount—except for the missing Boiceville trestle and about a mile of intermittently washed-out track west of Phoenicia. “When the railroad leased the tracks 25 years ago, it was really just a club,” he said, “and they allowed it to get overgrown. Now we’re more organized, and we’ve gotten a lot done.”
While there’s been a groundswell of support from a group called Explore the Catskills to revive the railroad along the whole stretch of Route 28, Lennox is currently focused on the county’s plan for a rail trail. He envisions hikers enjoying the pathway along the Esopus Creek. CMRR hopes to retain its lease with a proposal submitted to the county for its continued operation of the two tourist railroads.
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