The inherent tension of municipal planning was on display during the December 15 village planning board meeting in New Paltz. Longtime local developer Floyd Kniffen is seeking to build two houses on land at the end of Millbrook Road. The law generally constrains planning boards to maintain a narrow focus on specific applications. On the other hand, science supports looking at the big picture and because the non-human environment provides economic and aesthetic benefits.
Though two members expressed concern about the impacts of the proposed project on nearby, environmentally-sensitive areas including the Mill Brook Preserve, the board’s attorney cautioned that not much could be considered beyond the site itself.
Challenges of participation in public hearings were also highlighted during this meeting. No one offered testimony, but some members of the public posted comments alongside the live video stream of the meeting advising that they’d had technical challenges trying to post comments. By a three-to-two vote, the board chose to close the hearing, disregarding the request of village trustee William Wheeler Murray to leave it open; Murray is of the opinion that during the pandemic it was worthwhile to take extra time because of the complications of weighing in online rather than attending a meeting in person.
After accepting a motion to close the hearing, board chair John Litton began to move on with review of the site plan without taking a vote. Murray weighed in, saying, “We’re hearing from residents that it’s very difficult at this time to keep up with things with the village,” citing a ZBA meeting from earlier in the week during which several residents who should have received notices of a hearing in the mail had not.
Proper notification
“How long, in theory, should we keep open a public hearing on this issue, or other issues, because not everyone in the public has had the opportunity?” asked Litton. “I think that probably the applicant has followed the rules, and made sure that the notification is out. I think that it’s been posted on our website as well. I think that there’s been quite a bit of notification for this over the past period of time; this is the third meeting that we’ve been working on this …. At some point we have to believe that the public has had adequate notification, and adequate opportunity to speak.”
This meeting was the first opportunity for members of the public to speak regarding this application. Litton then asserted, “We have actually already closed that public hearing.” Based on the video of the meeting, this was not the case, No vote had yet been taken up until that point.
Even if the oversight had been caught, it likely would not have made any difference. Member Zach Bialecki argued in favor of holding the meeting open, saying that environmental policy input was needed. Rachel Lagodka was of the same mind, saying that this placing the bright pink notice on the property itself did not, in this case, provide much notice at all, because it was at the end of a dead-end street. People who might be interested in weighing in who were not nearby residents were sent a notice in the mail.
Julie Seyfert-Lillis, executive director of Mill Brook Preserve, Inc., was unavailable that night. She later expressed the expectation that others similarly engaged would have weighed in during the hearing.
Ultimately, Bialecki and Lagodka voted in favor of holding the hearing open until the next meeting/ with Litton, Denis McGee and Rachel Carrion preferring to move ahead without additional opportunity for testimony.
Carrion said that the board was bound by time frames, and said that “just to be fair to the public and to the applicant that we have to adhere to,” and that if there were more input. “I don’t understand why we’re not hearing it.” State law in most cases provides no time frame as to how long a public hearing may be kept open.
Giving testimony
Toward the end of the meeting, Bialecki noticed comments posted by some residents who advised they’d had difficulty logging in to post their thoughts, or expressing that they felt the hearing had been closed too quickly. Bialecki noted that the live stream is actually broadcast with some amount of delay, meaning that testimony wasn’t being taken for quite as long as board members might have believed. Bialecki urged consideration of leaving hearings open longer in consideration for that technical issue.
The conflation of the terms “public comment” and “public hearing” confused Litton, who explained that the former was a period when members of the public to weigh in on virtually any issue, while the latter is a time for taking testimony about a specific project. Testimony at public hearings becomes part of the record for that application, while the public-comment portion is provided as a courtesy only, and what is said at that time carries no legal weight.
Board secretary Alana Sawchuk advised that emails sent to planningzoning@villageofnewpaltz.org were reviewed quickly, and that testimony and comments provided via email was shared with the board swiftly. Sawchuk also said concerned groups can also appoint a representative to provide testimony \ for a larger number of people.
Lagodka asked whether there is any way that a member of the public would know about the email option — it’s not, for example, laid out in the agenda, Sawchuk replied that people can take the initiative to email her. There’s only so much we can do.”
Attorney Richard Golden affirmed that the efforts taken in this village exceeded those in some other municipalities.
The two Kniffen applications are adjacent to a stream — the Mill Brook — that’s already thick with fecal matter. There’s concern that more pavement and buildings nearby will lead to more runoff and more problems. Samples collected by citizen scientists and submitted to Riverkeeper show enterococcus — a microbe that is evidence of fecal contamination — is thriving in the Mill Brook.
State regulators have determined that it’s unsafe to swim in water where more than 60 of these microorganisms are found in a 100-milliliter (roughly three-and-a-half fluid ounces) sample; the last time a Mill Brook sample was under that mark was in October 2013, and that appears to have been an aberration. Out of 47 samples collected from June, 2012 through October, 2019, the count was over 200 all but three times, and exceeded 2000 on ten occasions, most recently in May 2019.
A complicating factor in this case is that the subdivision was approved in 2013, and according to Golden that’s when many of these questions should have been addressed. An applicant “gets vested in their approvals, and you can’t revisit that, just because it may have been done incorrectly.” Stormwater can still be addressed during the site plan review, but it’s no longer under the auspices of state environmental laws.
Kniffen is required get an engineer to review the stormwater flow projections to ensure that there won’t be more flow off the property than there is now. That report will be reviewed by the village engineer.
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