In the opinion of the Town of Shandaken’s legal counsel, Larry Wolinsky, the Catskill Mountain Railroad (CMRR) has not met the four legal criteria required to be granted a use variance to build a rail yard and 2000-square-foot maintenance shed on its property along Station Road in Phoenicia. On April 20, however, the Shandaken Zoning Board of Appeals (ZBA) voted to extend the public hearing regarding the request into a fourth month, giving the railroad time to supply further documentation justifying the variance to allow a light industrial use in a residential zone.
During the meeting, several neighbors of the proposed rail yard gave esthetic objections to granting a variance, one gave evidence in support of legal objections, and one spoke in favor of the rail yard. With the CMRR’s lease of the Ulster County tracks expiring on May 31, and with no certainty that the group will be chosen to continue operating the local tourist train line, both CMRR and Phoenicia residents are concerned about where the existing rolling stock, now stored on the county’s tracks, will end up.
Wolinsky’s statement, which was read aloud, first rejected CMRR’s assertion that its status as a railroad corporation exempts it from land use regulations, according to New York State Railroad Law. “The sections cited by the applicant confer powers upon the railroad to acquire and use property to further the purpose of the railroad; however, nothing in those sections allows those powers to be exercised in an unregulated manner,” wrote Wolinksy. He added that CMRR’s own business plan indicates that it expects to follow all zoning laws.
He stated that CMRR has submitted insufficient evidence to prove the first of four legal criteria for granting a use variance: that the applicant can’t get a fair financial gain from a permitted use. Wolinsky said this assertion requires “economic data from certified appraisers or other licensed professionals who have familiarity with the market and can demonstrate that all uses permitted in the zoning cannot be conducted profitably on the property.”
Another consideration is whether there exists a self-created hardship in relation to the request. “Finding a self-created hardship bars the ZBA from granting a use variance even if all other criteria are met,” wrote Wolinsky. “If at the time of acquisition of the property, the property owner knew, or should have, that the requested use was prohibited, then a self-created hardship exists.”
Building inspector Warren Tutt said he could not confirm that the CMRR parcels were zoned residential at the time of their purchase in 1990 and 2001. He will go into the town records to research the past zoning of the land.
Harry Jameson of CMRR reported that he had a letter from New York City Department of Environmental Protection (DEP) stating that it would require no permits or approvals for protection from contamination or degradation of the New York City water supply and its sources. Opponents of the project had expressed concerns about pollution resulting from work on railroad cars on land adjacent to the Esopus Creek.
Jameson also reacted to what he called “misleading and erroneous statements” made at the previous hearing by Rod Futerfas, attorney for the opponents, referring to contamination at CMRR’s Cornell Street railroad yard in Kingston. “Ulster County Department of Public Works did an initial walk-through of the yard on March 21 to 28,” said Jameson, “and another one 12 days later. We have not received any findings.” The yard is scheduled to be cleared for use as a linear park.
Anique Taylor, who lives near the proposed Phoenicia rail yard, observed that at the previous meeting, CMRR had alleged that its property had previously been in use as a rail yard, but her research contradicted that statement. She submitted sworn affidavits from three residents stating that since the 1950s, the property had been a different times wild, used for cross-country skiing, and used for raising horses.
Alan Fliegel stated that he lives across the street from the Empire State Railway Museum (ESRM), which is located between the CMRR property and High Street. ESRM, a separate entity from CMRR, recently build a maintenance shed and has been storing train cars with the intent to refurbish them. “We’ve been fans of the railroad since we moved here in 1986,” said Fliegel. “But the railroad station is no longer cute or inviting. There’s a giant building already. Today I see rusty trains lined up that need a lot of work. It looks like a junkyard. The railroad wants to fix up trains, expand what they’re doing, ride trains on property. I’m against the expansion and restructuring of the land, and I do not want it used for industry.”
Don Casale, another neighbor, expressed concern about the impact on property values. Meg Carey of Glenford, however, told the board, “If you have the authority to grant a use variance with restriction that it’s for railroad purposes only, I urge you to do so.”
The ZBA deliberated briefly after hearing comments. Chairman Keith Johnson said, “Based on advice from our attorney, we could give them additional time to prove financial need, or — one of our primary functions is to keep us out of court. We don’t have information enough to make a valid decision. If we did anything other than deny the permit, we wouldn’t be able to defend it. Does the board want to allow the hearing to stay open?”
ZBA member Rolf Reiss said he would be open to giving CMRR more time to supply “computations for each and every allowable use” of the property. Mark Loete and Gary Gugliemetti agreed, and the board voted unanimously to extend the public hearing. Joe Michaels, who was absent, is recused from voting because of his membership in CMRR.
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