It doesn’t take much driving around the Town of Gardiner these days to notice that a vocal opposition has developed to the Heartwood eco-cottage resort development currently proposed for a property on the north bank of the Shawangunk Kill in Tuthilltown. Opponents calling themselves the Friends of Gardiner have gotten organized to the point of creating a stopheartwood.org website and printing eye-catching “Stop Heartwood Now” yard signs. Ironically, these signs may turn out to be part of the reason why their campaign to impose a moratorium on the project does not seem to be catching fire with the Gardiner Town Board.
At the September 5 town board meeting, when the grassroots group’s request for a moratorium was brought up for discussion, town supervisor Marybeth Majestic reported on her consultation with the town attorney on the subject. She explained that, according to guidelines published by the New York State Division of Local Government Services, land use moratoria must meet certain legal constraints, including that they “cannot single out a single developer.” According to the attorney, if a moratorium on issuing permits for lodging facilities were to be enacted, it would not only have to be imposed on proposals for campgrounds as well, but also probably on any type of subdivision, Majestic said.
“It would require essentially a moratorium on everything until we get everything perfect, and that’s not going to happen,” agreed councilwoman Laura Walls. “We’d have to ensure that the moratorium would not be solely about this project. On the other hand, we also have a responsibility to residents that the quiet enjoyment of their homes is not affected.”
Councilman David Dukler said that, because a specific application for a Special Use Permit for a so-called “glamping” facility is already under review by the Gardiner Planning Board, the situation is not analogous to the recent decision to call a moratorium on commercial solar installations until the zoning code could be rewritten to deal more clearly with “solar farms.” In the case of the solar law, he said, the town board knew of several potential applicants interested in pursuing the construction of solar farms, but none had actually applied.
Both Dukler and Walls pointed out that, if the moratorium on lodging facility permits went into effect and was perceived to be targeted at a single applicant — those “Stop Heartwood” signs likely becoming Exhibit A — the town could be setting itself up for a lawsuit by the Heartwood developers. And if the applicants won such a legal challenge, any amended zoning law would not apply; their application would have to be grandfathered under the version of the law in effect at the time that it was submitted. None of the town board members seemed enthusiastic about the town coffers having to absorb the cost of defending such a lawsuit.
The question to be resolved under the proposed moratorium essentially boils down to a clarification of the difference between a campground and a lodging facility, town officials said. Building inspector/code enforcement officer Hank Vance determined that the Heartwood proposal most closely met the definition of a lodging, since it would offer year-round rather than seasonal accommodations. When this definition was challenged, Gardiner’s Zoning Board of Appeals came to a split decision, 2-2, after several hours of debate, so that Vance’s determination was not overturned. Resident Laurie Willow pointed out that the ZBA was essentially deadlocked on the issue, calling it “a perfect illustration that we don’t have laws that govern this.”
“It’s not a content issue,” said Dukler, acknowledging the validity of some of the concerns expressed by neighbors of the proposed project. “We have to protect the integrity of the process. A moratorium is not going to address these concerns, so why go down that road?”
Several present pointed out that enforcement of provisions already in the building code, such as noise constraints, has sometimes been lacking. “Code enforcement hasn’t been what it should be. What we’ve done hasn’t solved the problem,” Dukler went on. “The takeaway is that the code is not clear. I’ve read the code, and you could interpret it in different ways. Do we have a role to play that will solve this problem?” “We can follow the law and we can revise it at the same time,” Walls responded. “We don’t have to put the whole town into complete deadlock.”
Majestic and Walls both noted that in the issuance of a Special Use Permit, the planning board has considerable discretion as to the addition of limitations and conditions, such as how many potentially noisy events the site operator can book each year. But McKinstry Road resident Bridget Reagan, who said that she was “going to be profoundly impacted by this,” professed a lack of faith in the planning board’s commitment to put meaningful constraints on the project. “There’s no capacity to enforce the laws that we have, so why should I trust the Special Use Permit process?” Reagan also suggested that the applicant might not be the only party willing to take the town to court over the project.
Walls admitted that Gardiner had “dropped the ball” with regard to the zoning law. “We need to own our responsibilities as a town for the enforcement of the code,” she said. Perhaps not coincidentally, at the same meeting the town board accepted “with regret” the resignation of Hank Vance as building inspector/code enforcement officer, and voted unanimously to hire Andy Lewis as his replacement. He was expected to report to work that same week — and presumably to hit the ground running.
Discussion of the moratorium request was scheduled to resume at the next town board meeting on Wednesday, September 15. A public hearing on the Heartwood project application will take place at the next planning board meeting on Tuesday, September 19.
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