THE HURLEY HEADACHE: THE CASE FOR PLANNING BOARD TRANSPARENCY AND PROFESSIONALISM
(originally written for local non-profit Ulster Strong, published by Hurley Up)
Following a series of contentious battles over development and three court cases lodged by developers who claim the town unlawfully sought to torpedo projects which conformed to planning and zoning criteria, Hurley officials have sought new approaches to limiting commercial development in the town. First, a temporary ban on new subdivisions and building permit applications to the town Planning Board (a proposal rescinded after public outcry and resistance), and now a comprehensive plan that has thus far included no business input and appears to limit commercial activity in Hurley, including projects like those it has recently fought in court. Note, Hurley’s current zoning assigns less than 2% of its land available for commercial development (277 acres within Hurley’s 23,040 total acres).
When it comes to the complex and costly process of navigating state law and local land use regulations to win approval for new residential and commercial projects, developers in the Hudson Valley must rely on the professionalism and impartiality of a patchwork of local planning boards made up of volunteers. These boards are charged with steering new development proposals through a transparent process with consistent results. That is to say, if an investor follows the zoning code, conducts necessary studies on issues like traffic and environmental impact, obtains needed approvals from the state and county, and follows reasonable suggestions and directives from town planning boards, their projects will cross the finish line to approval. The stakes are high, both for developers who must sink significant money into the process, and for communities where planning and zoning decisions can impact a Town’s character and economy for generations.
But recent events in the Town of Hurley have called into question whether town officials are committed to a neutral viewpoint process. A process that simply ensures that a project has checked all necessary boxes in accordance with state and local protocols, or willing to veer off-script under the sway of small bands of local opponents, or even individuals, who inevitably turn out to oppose virtually any new residential or commercial development in their neighborhood.
In the case of Hurley, the issues of land use oversite protocol include alleged violations of state Open Meetings Law, the alleged use of delaying tactics to force developers to miss deadlines and begin the approval process over again, and in one case allegations that a board member acted as an advocate for project opponents in clear violation of the Town’s ethics code. Those lapses have forced the town to contend with mounting legal expenses, and a burgeoning reputation among developers for an inconsistent and opaque decision-making process.
According to Town Supervisor Melinda McKnight, these additional legal costs are chalked up to efforts to avoid future litigation by giving planning officials an early warning about potential conflicts in the approval process.
“The budget for attorneys has increased as the amount of money the Town spent on attorneys has increased,” said McKnight who took office in January 2021. “But we would like to have attorneys involved earlier in the process to avoid some of the pitfalls rather than later to clean up a mess; which ends up costing more money.”
The town’s legal entanglements include three development projects which predated McKnight’s administration and the subsequent turnover of majorities on both the Planning Board and the ZBA. These include The Twin Lakes Resort that would replace a vacant former motel off of Lucas Avenue with a 59-unit luxury camping and cabin destination. The second is a development of the former West Hurley Elementary School by Cedars East, which has been vacant since 2005, and includes plans to create a 46 unit apartment complex. And Warwick-based development firm Southern Realty and Development that has been working since 2020 to build a drive-thru Dunkin Franchise at the corner of State Route 28 and State Route 375 in West Hurley.
All three projects faced opposition from some neighbors. In local Facebook groups, online petitions, and at public meetings opponents listed a litany of complaints familiar to developers in Ulster County. Opponents complained about potential traffic and changes to the “quiet rural character” of neighborhoods. In the case of the Dunkin proposal, critics expressed disdain for chain restaurants and fretted over competition for local mom and pop operations. But, in each case developers say their projects were in line with the Town’s zoning code, and that they followed all necessary steps to obtain the needed permits. And, in all three cases, attorneys for developers claim that town officials took unlawful steps to shut them down. A closer look at each project would suggest a pattern of obstruction and delay, at a minimum.
Twin Lakes
By the time developer Arizona Investissements purchased the vacant Twin Lakes property in November 2018, company officials had already contacted the Hurley Planning Board to discuss their plan for an eco-friendly “Glamping” and cabin campground at the site of the motel. According to the town’s zoning code, the developers needed a special use permit to proceed with the project. Over the next year, representatives for the company worked closely with the board to produce traffic and environmental studies and fulfill other requirements for approval. In December of 2019 the Planning Board granted a Special Use Permit and site plan approval.
The ink was barely dry on that approval when the project hit its first roadblock, with an Article 78 petition filed by a group of neighbors seeking to invalidate the Planning Board’s approvals. It was the first of three Article 78 petitions targeting the project, and all three were denied in court. By then, developers faced a new hurdle; a global pandemic that virtually shut down state government for the next 18 months. Unable to secure necessary approvals from the state Department of Health and Department of Environmental Conservation, the Arizona Investissements team hunkered down and bided their time.
In April 2022, developers filed for a demolition permit with the town. The permit came through, but only after 45 days and multiple calls from the developer, prompting the planning board’s secretary to ask them to “stop calling for updates on the status of the permit.” By contrast, when the company sought permits to begin renovation of existing structures at the site, town Code Enforcement Officer Dave Allen responded within 24 hours telling the developers that the Special Use Permit (SUP) and site plan approval were invalid because they had missed a one year deadline to obtain a building permit. The developer has appealed the decision to the town’s ZBA.
Arizona Investissements principal Jordan Bem declined to comment on his experience with the Planning Board citing potential future litigation. But in an open letter published in November, Bem wrote; “After four years of going back-and-forth with the town, and more importantly, two years of constant roadblocks since the original SUP was approved in December 2019, it has become obvious that the town officials do not believe the law applies to them. These actions not only increase costs to developers, but also to the people that make up the Town of Hurley. Now is the time for change and time to bring positive development to the town of Hurley.”
Allegations of a concerted effort on the part of town officials to kill the resort project extend to the town’s Zoning Board of Appeals where former member Jana Martin (who now sits on the Town Board) was accused of colluding with project opponents in violation of the town’s ethics code which bans board members from advocating on behalf of any party in a zoning appeals case. That complaint stems from a May 2021 meeting of the ZBA to hear an appeal filed by one Lynne Bailey, a Twin Lakes neighbor and lead plaintiff on all three article 78 petitions targeting the resort. Bailey appealed a Planning Board ruling that the proposed campground fit the definition of a “cabin or cottage development.”
The May Zoom meeting included Bailey - who had previously worked with Martin as part of a citizens group opposed to the West Hurley Cedars East project - and other opponents of the resort, as well as Bem who was on hand to answer board members questions. According to a transcript of the meeting, tensions began to rise when Martin repeatedly returned to the issue of whether the mobile cabins should be properly classified as cabins or Recreational Vehicles, an issue raised by Bailey in her litigation against the development. The line of questioning continued, even after fellow board members and town land use attorney Daniel Stafford pointed out that the town’s Code Enforcement Officer has already made an official finding that the units were cabins, and that the Planning Board’s only decision was whether project fit the “cabin or cottage development” designation. At one point, Stafford said that Martin appeared to be asking the same questions over and over in an effort to delay a vote on the issue. Eventually the board voted 6-1 to approve the cabin resort designation, with Martin casting the dissenting vote.
The meeting was so problematic that. it became the focus of an investigation commissioned by the town after Martin, who had resigned from the board, leveled allegations of gender-based discrimination against Board Chair Joshua Vogt, Stafford and others based on their alleged “mansplaining” and interruptions during the contentious meeting. Meanwhile, former Town Supervisor John Perry made his own allegations against Martin alleging that she had been communicating with Bailey during the meeting, by cell phone, and effectively serving as her advocate on the board.
The report, prepared by attorney Elena P. Pablo, found that Martin had engaged in some testy email exchanges with Vogt and others as she tried to get members to read and consider a petition circulated by Bailey to support her appeal, despite the fact that the public comment period on the subject had closed and that the board was barred from considering mass petitions (as opposed to individual written comments). At one point Vogt expressed concern that Martin’s communications regarding the petition could be construed as a violation of the state Open Meetings Law, which forbids members of public bodies from deliberating outside of a public forum.
The report’s findings dismissed the gender bias claim, but found that some board members and town employees may have violated the town’s fair treatment policy and recommended bias and sensitivity training for the ZBA. As for Perry’s allegation that Martin had colluded with project opponents, Pablo found that while it could not be determined conclusively that Martin and Bailey had been in contact during the meeting, there was “some evidence” that Martin had acted as Bailey’s advocate in the appeal. Pablo recommended that the matter be referred to the town’s ethics board. No further action on the matter has been taken to date.
Dunkin
At the same time that Arizona Investissements resort project was struggling with the town’s approval process, Southern Realty principal John Joseph was experiencing his own issues with the planning board in his attempts to build a Dunkin franchise at the corner of Route 375 and Route 28. By January of 2022 the project, which is “as of right” under the Town’s current zoning code, had received all necessary approvals from the state Department of Transportation and county Department of Health when the planning board denied site plan approval, citing concerns about traffic safety and congestion at the drive thru. The denial came despite a DOT finding and a traffic study commissioned during Perry’s Administration that the intersection could accommodate the business. A second opinion, sought by the new Planning Board in 2022, offered an informal comment that there “may” be issues with congestion at the site. In explaining his decision, Planning Board chairman Peter McKnight (Town Supervisor McKnight’s brother in law) said “I know that [The State Department of Transportation] has their opinion on this, but the DOT makes mistakes.”
Southern Realty appealed the denial in state Supreme Court arguing the board’s denial was arbitrary and capricious. In July, State Supreme Court Judge Kevin Bryant threw out the denial and ordered the Planning Board to once again review the site plan. In his ruling Bryant found that the board had not kept an adequate record of its deliberations, and had violated state Open Meetings Law by sitting down with county planning officials and a representative from DOT outside of a public forum. The Town has appealed Bryant’s findings, with anticipated legal arguments in April of this year. Meanwhile the Dunkin project remains on hold.
Interestingly, a January 14, 2022 email exchange between planning board member Bob Biamonte and planning consultant Georges Jaquemart discussing the development of an updated Comprehensive Plan for the Town, called into question whether traffic was the real issue driving the board’s rejection of the Dunkin project. In the email, sent just four days after the planning board rejected Southern Realty’s siteplan, Biamonte and Jaquemart discussed how to preserve the “character” of Route 28 from development. Jaquemart references a residential development project in the neighboring Town of Olive that was allowed to move forward despite local opposition because it conformed to Town zoning codes. Georges went on to suggest the new comprehensive plan should include language about the character of the Route 28 corridor that could prevent similar projects there.
“It is these character definitions that will help us in controlling future developments more than technical traffic issues,” Jaquemart wrote.
Cedars East
The five-year battle to develop the former West Hurley Elementary School, known as Cedars East, illustrates the difficulty of the approval process for residential as well as commercial projects. By the summer of 2021 developers of the 46-unit apartment complex had already weathered a series of lawsuits by local opponents of the plan, and an effort by the Town Board to pass a zoning code amendment that would have killed the project. Finally, on August 30, 2021, the developers received conditional site plan approval contingent on the developers addressing a few outstanding issues. In April 2022, the developers applied for a building permit. Code Enforcement Officer Dave Allen responded two months later denying the permit because, he claimed the developers lacked a valid pollutant discharge permit from the DEC, and a valid signature from the Chair of the Planning Board.
In an article 78 petition, filed in August 2022, Cedars Development LLC accused planning board officials of using delaying tactics and adding additional conditions to force the developers to miss the August 31 deadline to obtain a building permit contained in the conditional site plan approval. As with the Twin Lakes project, missing the deadline would have forced developers to start the approval process from the beginning, adding significant costs to the project. At one point, when representatives from the company sought a signature from PeterMcKnight on some site plan maps, he told them that he couldn’t sign off on the documents because he was only the “Interim Planning Board Chair”. Developers were told a new permanent chair would not be elected until September, notably after the building permit deadline had passed.
Then on August 6, with the deadline looming and town officials refusing to sign key documents, attorneys for the project filed for a writ of Mandamus, defined in the decision by State Supreme Court Judge Richard Mott as “An extraordinary remedy to enforce a clear legal right where a public official has failed to perform a duty enjoined by law.” In a November 2022 ruling, Mott agreed that town officials had failed to perform their required duties and ordered the Planning Board to approve site plan maps submitted by the developer in July.
The controversy around development in The Town of Hurley has put Town officials on the defensive. In November, Supervisor McKnight published a statement on the town’s website dismissing the notion that Town government had tried to thwart development projects that, under the town’s own regulations, should have been approved. Instead, McKnight said the town was merely seeking to enforce existing law.
“The goal of the town of Hurley is not to stymie the three projects, or any others, but rather to have the developers adhere to state and local laws. This is essential to the town's broader effort to ensure that, moving forward, the process of addressing such proposals is efficient and limits exposure to liability.”
McKnight noted that all three projects predated her administration. She said she had taken steps to make the town’s land use approval process more consistent, including appointing a zoning task force to address “conflicts, inconsistencies and gaps” in the code. The town also replaced longtime land use attorneys McCabe & Mack and hired Dutchess County based attorney Victoria Polidoro - best known in Ulster County for a flurry of unsuccessful legal actions seeking to halt the Kingstonian project in Uptown Kingston on behalf of a rival developer - to advise the Town’s Planning Board and ZBA. McKnight said that her goal was to bring consistency and rigor to the town’s land use approval process and to ensure that the town had consultants and attorneys that officials had confidence in.
“I’m for good development, smart development, but it’s not up to me or any other single person to make decisions on what’s good development and what’s bad development,” said McKnight. “There’s a process for that and we just have to make sure that process is followed in a consistent manner by everybody.”
But John Perry, McKnight’s predecessor as Hurley Town Supervisor, said that the town’s efforts to fight the projects in court was misguided and a waste of taxpayer’s money. Perry, who held the Supervisor’s office from 2017-2021, noted that virtually all of planning and zoning board members he worked with have either resigned out of disinclination to work with the new Town Board or been replaced. Perry suggested that updates to the zoning code, not appeals in State Supreme Court were the best way to give Hurley residents a say in development issues.
“They don’t have a leg to stand on,” said Perry. “If they want to change zoning regulations, they should spend money on that, not on attorneys to fight these legal battles that they’re not going to win.”