The Town of Hurley has lost its latest legal battle to uphold the denial of a Dunkin’ drive-thru at the intersection of routes 375 and 28.
On July 6, a state appellate court ruled that the board still needed to engage in further proceedings, deciding a lower court had erred in ruling otherwise on the basis that part of the planning board’s proceedings had violated the state Open Meetings Law.
Ulster County Supreme Court judge Kevin R. Bryant had ruled June 27, 2022 to annul the town planning board’s site-plan denial and remanded it back to the board for further review. Bryant said the board had conducted meetings out of public view in violation of Open Meetings Law, particularly at a gateway meeting with county planners.
The appellate judges disagreed.
“Petitioners did not articulate in their petition the manner in which the substances of discussions at the gateway meeting were an attempt to avoid public scrutiny of the project or whether a quorum of the board was actually present,” they wrote. “Moreover, had petitioners pleaded and established an Open Meetings Law violation, we find that petitioners failed to demonstrate good cause-requiring nullification, as they effectively rely on discussions that occurred at the gateway meeting with various parties as well as statements made by members of the board at the meeting in support of their contention that the board’s denial was arbitrary and capricious.”
The appellate division further wrote that the lower court’s order vacated the planning board’s denial rather than granting approval of the West Hurley application. “While the board clearly failed to set forth its decision and reasoning in a written resolution, the January 10, 2022 meeting minutes memorializing the board’s vote provide adequate indicia of its reasoning for denial.”
But the justifications for denial were “unsupported by the record.”
The planning board’s consultant, Nelson Pope Voorhis (NPV), had said that DOT-approved shoulder widening on the northbound lane of Route 375 to allow for vehicles to pass those waiting to make a left turn into the site was “not an acceptable practice.”
Members of the planning board remained vocal in their opposition despite DOT approval of access to the site.
“I know the DOT has their opinion on this, but the DOT makes mistakes,” then-chairman Mitch Cohen had 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,” explained 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 court said the applicant’s consultant had addressed the board’s contentions.
“The remaining concern that ‘the long southbound queues may still cause the northbound left-turn queues to extend into the intersection of Route 28 and Route 375 creating traffic congestion and safety issues’ were addressed [by CM applicant’s consultant [Creighton Manning] on various occasions, primarily noting that this traffic condition would continue regardless of the project, and that video of the intersection revealed that the southbound queue would clear entirely after each traffic light cycle,” the court wrote.
The court also found concerns about stacking capacity in the Dunkin’ lot were without merit. Creighton Manning analysis of Dunkin’ locations with similar traffic volume found the longest observed queue was 14 vehicles, while the town’s consultant concluded, based on observation of a Saugerties Dunkin’, that the West Hurley location required a stacking capacity of 21 vehicles.
The court attacked this reasoning, “However, the 21-car queue length observed by NPV was only present for 15 minutes of the eight hours that the Saugerties location was studied. Moreover, although CM disputed the methodology employed by NPV in determining the need for such a large stacking capacity, it nonetheless provided site plans depicting a queue of 21 vehicles, which was acknowledged by NPV,” the court contended.”
Considerations beyond traffic conditions permeated the decision-making process of the board, rendering it arbitrary and capricious.
“The board’s decision appears to have been in response to local public opposition, evidenced at least in part by the comment at the gateway meeting indicating that a ‘mom and pop’ restaurant would be more desirable than the project and would have an easier permitting process,” the court wrote. “It is well established that such concerns are not a proper ground upon which the board may base the denial of an otherwise permitted use.”
The appeals court found that the traffic-related concerns were adequately addressed and the ensuing reasons relied upon by the board in denying the application were “conclusory and unsupported.”
Hurley has the option of appealing the decision to the Court of Appeals, the state’s highest court.