The state Supreme Court in Ulster County vacated the Hurley Planning Board’s denial of a site plan for a Dunkin’ drive-thru at the corner of Routes 28 and 375 in West Hurley and the town plans to appeal.
The applicants, Southern Realty and Development LLC and Brown Cow Rental LLC, filed an Article 78 petition on February 9 challenging the Hurley Planning Board’s January 10 decision, claiming it was arbitrary, capricious and contrary to law. It asked the court to direct the Planning Board to approve the site plan.
Judge Kevin R. Bryant did not order site plan approval, but in his June 24 decision, he vacated the denial and remanded it back to the Planning Board for further review.
The town has retained special counsel Victoria Polidoro of Rodenhausen, Chale & Polidoro LLP in Rhinebeck to help town attorney David Gordon with the appeal. A decision by the state Supreme Court Appellate Division, the state’s highest court, is expected within the next six months.
Justice Bryant concluded the Planning Board proceedings did not include complete record-keeping, violated town law by exceeding the time limit to make a determination and violated open meetings law by deliberating outside of regular Planning Board meetings.
Bryant ruled the Planning Board failed to consider the project in a manner consistent with applicable law.
“While this failure is best illustrated by the absence of an actual resolution denying site plan approval, the board’s failure to follow appropriate meeting protocol was consistent from the outset of the 17-month review, a review that continued for over a year beyond the time limits for a decision set forth in the Town of Hurley Code,” Bryant wrote.
He also noted members of the Planning Board circumvented the state Open Meetings Law, particularly by attending a gateway meeting held by the Ulster County Planning Board at which items related to the Dunkin’ site were discussed.
There is no record of a formal agenda nor any public notice of the meeting and no indication of whether the meeting was open to the public, either in-person or electronically, Bryant wrote in his ruling.
“The discussions at this meeting and the information exchanged should not have been considered by the board in rendering its determinations and the information that was considered is not and cannot be made part of the record in this proceeding. It is the finding of this Court that the deliberations and determinations of the Planning Board were irreparably compromised and cannot be cured at this juncture,” Bryant wrote.
“…Public bodies may not escape public view by claiming that they did not formally convene when, in fact, a meeting took place at which business of public interest was discussed,” wrote Bryant, citing Goodson Todman Enterprises v. Kingston Common Council, a 1990 N.Y. Supreme Court Appellate Division case in which the Kingston city corporation counsel refused a Daily Freeman reporter’s access to a meeting in his office attended by several city aldermen. Goodson Todman owned the Freeman at the time.
“While it is not clear from the record whether a quorum of either Planning Board was present at the gateway meeting, this Court is particularly troubled by the descriptions set forth in the pleadings,” Bryant wrote, referring to the Ulster County Planning Board meeting.
“Any post-recommendation discussions of the UCPB’s August 4, 2021 letter and any communications with NYSDOT or other consultants, absent an exception to the Open Meetings Law, should have been conducted at a public meeting in order to ensure that the public business is performed in an open and public manner. Similarly, any discussions with NYSDOT or with the traffic consultants regarding traffic issues should have been conducted at a public meeting or taken place in writing and made part of the formal record.”
In its denial of the Dunkin’ site plan, the Planning Board cited traffic and safety concerns despite state Department of Transportation approval of the site plan.
“I know the DOT has their opinion on this but the DOT makes mistakes,” then-Planning Board Chairman Mitch Cohen said at the January 10 meeting where the board unanimously denied the Dunkin’ site plan.
“If we approve a project that in the long run is going to turn into a problematic issue with traffic problems, it’s going to be on our head,” said Planning Board member Tony Bonavist at that meeting. “So the DOT can say what it wants, but it still comes to rest right back down in here in Hurley.”
The January 10 denial came after many meetings at which members of the public doubted traffic counts from the applicant’s engineer and complained that an already dangerous intersection will be made worse by cars holding up traffic while waiting to get into the drive-thru.
The proposed Dunkin’ drive-thru was slated to go on the Northwest corner lot in place of a vacant building formerly occupied by property owner Virginia Barthel’s travel agency Booked by Barthel and an Allstate insurance office.
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