After he was hit with a stop-work order last fall for disturbing more than the acre of land that his site plan permitted, Route 212 landowner Kim Kiniry of Kiniry Excavation LLC hired two engineers to draw up a new site plan and a corresponding stormwater protection plan.
But this may not be enough for neighbors Mark Kanter and Heather Hutchinson, who argued at a Feb. 18 public hearing before the Saugerties town planning board that Kiniry’s activities on the site, which include land clearing and the excavation of rock and other materials, were disturbing both the environment and the neighborhood. The couple, who live on Adams Road, 40 feet away from the 1752 Route 212 site, complained of “noise of the crushing of rocks or separating, the backup alarms, all from 6 o’clock sometimes in the morning, all day long.” They also described “significant dust” that caused Kanter respiratory issues and said the foundation of their home was shaking due to excavation work.
Kiniry aims to place a small shop, which he intends to model after a “country store,” on the 1740 Route 212 property; this hearing was only meant to address that site. However, the activities on both sites were the topic of discussion, even though Kiniry says “1752 has been pulled” and they “just want to get our shop up and running” before addressing the issues at the 1752 site where the excavation was taking place.
“They’re coming back asking for you to give approval for something retroactively that they’ve done that they weren’t allowed to do,” said Kanter to the board. “If this is the pattern that I’ve seen over the last two or three years, if the planning board isn’t proactive … there’s going to be more of this.”
“We believe we’re meeting the criteria of everyone’s concerns,” said Kiniry’s engineer, Christopher Chiaro, who drew up the new site plan and stormwater protection plan along with Kim Snyder of North Engineers & Design Associates. “We believe that we’ve met the concerns of the neighbors.”
The new site plan for the 1740 site was initially scheduled for a public hearing on Jan. 21, but Kiniry withdrew the plan in response to online backlash, which he found “disappointing and upsetting.” This time, Kiniry brought a small posse, including his wife, family members, his lawyer, Michael Moriello, and engineers Chiaro and Snyder. About 15 concerned citizens attended — a significant reduction from the group of about 40 that came to last month’s meeting.
Both sites are in a Highway Business district, where manufacturing, which includes forestry and mining according to the town zoning code, is not permitted. According to Moriello, only excavation is taking place on the property — the activity would only be considered mining if the material were sold or used offsite, but all of the shale that has been attained from the 1752 Route 212 property has been used to grade the 1740 Route 212 site.
According to town assistant building inspector Kevin Brown, who carried out the initial stop-work order at the 1752 Route 212 site, the only unpermitted activity was Kiniry’s excavating more than the just-less-than an acre he was allowed to.
“Per zoning, [excavation] is a permitted use,” said Brown. “It is a fine line of the definitions [between mining and excavating.]”
Emily Svenson, lawyer for Kanter and Hutchinson, expressed concern for a perennial stream that originates and runs across the westernmost of the two parcels. Kiniry wrote on the Environmental Assessment Form that the project would not “physically alter, or encroach into any existing wetland or water body,” but the stream on the site is not mentioned. Svenson argued that Kiniry would need to receive a Protection of Waters Permit from the state Department of Environmental Conservation before work could legally proceed. The stream does appear on the DEC’s “Environmental Resource Mapper” tool; however, according to Kiniry, he has contacted the agency and been told that “to their knowledge, there is not a protected stream there.” Confirmation of this from the agency was not available at press time.
A downstream neighbor reported that a small lake on their property has begun filling with mud and refuse since operations have started on the site; the source of this mud was also scrutinized, and planning board member Dan Elsworth said that it could come from the “Central Hudson site across the street.”
Chiaro argued that the excavation was beneficial because the shale cliff face from which rock was being harvested was “loose and dangerous.” Kanter rebutted that he had video showing heavy machinery traversing without incident the “supposedly shaky shale.”
“I’ve been doing this for over 40 years — when the shale face is open and it fractures back, it fractures back more than you think,” said Ron Biscoe, who also runs an excavation business in West Saugerties. “It was loose, OK?”
Chiaro also argued that Kiniry has improved the quality of the site: “I’m sure I don’t have to remind anyone on the board who has lived here for so long, this is a former dump site. Mr. Kiniry spent a lot of time cleaning the area up.”
“Did I ever come to the planning board and ask if [the previous owner] could clean that up? No,” said Hutchinson in response. “I don’t think I have to exchange my health, well-being and property value for gratitude for something that I never asked to be done.”
Planning board member Ken Goldberg was sympathetic to the project’s opponents. “The original site plan was under one acre of disturbance, it was supposed to be a building and the building was supposed to be for storage purposes,” he said. “I did not read of anything else happening … Am I incorrect that, if Mr. Kanter didn’t bring this to the building inspector’s attention, we wouldn’t be here? Did anyone doing this think that you are violating the approved conditions and consider coming to the planning board to amend the usage? Was there anything in the original site plan … the noise, about the dust?”
The public hearing, the board said, will stay open until the next planning board meeting at 7:30 p.m. on March 17 at the Frank Greco Senior Center.
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