If the cost in time and money is not too high, developers hope to meet the “late arising” demands of the state DEC without resorting to litigation, said an attorney for Woodstock Commons, which received DEC directives requiring additional permit work for its project eight months after the process was supposedly officially finished.
Though both sides said they hope to resolve the permit matter quickly, it could still leave unresolved the issue of whether towns have the right to make their own laws in creating boundaries and tax regulations for special districts such as water districts.
The Woodstock Commons dispute apparently arises because the parcel in question is only partly in the town”™s water district. Woodstock town law specifies that such properties are considered entirely within the water district and levies taxes accordingly. The owners of the land where Woodstock Commons is to be built have paid full water-district fees. But the DEC said that if a property is not fully within the water district, the town must apply to revise its water-supply permit before providing water to that property.
The project uses nine acres of the 28-acre parcel and is clustering development on the part of the property outside the water district. The$14 million 52-unit Woodstock Commons affordable housing project was set to break ground in the spring. Developers received a notice earlier this month that the project needed additional permit approvals eight months after the official closing of the FEIS environmental and regulatory review process.
Based on completion of the FEIS process, the project had received $13 million in financing from the state in July and was granted site plan approval by the town in August.
The project”™s is now uncertain in the wake of the DEC letter. Yet there is a deadline to complete significant building milestones by August, or risk losing project financing, said Larry Wolinsky, an attorney with Jacobowitz and Gubits working on the case pro bono for the nonprofit Rural Ulster Preservation Co., (RUPCO) the project sponsor.
In March 2009, the DEC said that no more permit work was needed. That position was not challenged when the FEIS document was officially closed in April 2010.
But in December, the DEC letter changed their earlier position, because they said the subject property is only partly within the town water district. The town of Woodstock must now apply to modify its water-supply permit, a process which could take months.
Willie Janeway, DEC Region 3 director, said in its March 2009 determination no additional permit action was needed. DEC staffers were not aware only a portion of the property was within the formal boundary of the town”™s water district. He said the department initially received incorrect information. He did not explain what prompted the DEC to review the matter months later.
Janeway said he believed the matter could be resolved quickly, although he gave no time frame. He would not discuss why it took the DEC eight months to state their objections. He refused to provide staffing levels for the DEC Region 3 office, saying that would require a Freedom of Information request to be addressed to DEC headquarters in Albany. Such a request is pending at deadline.
“We don”™t see it as being a problematic review and we are encouraging the applicant (the town of Woodstock) to apply for the permit revision,” said Janeway, adding the process “is unlikely to be onerous.”
But for businesses considering developing projects in New York, it is “disheartening and discouraging,” said Wolinsky, who has been working informally with Pattern for Progress and the DEC in a joint effort to improve the SEQRA process governing New York”™s environmental review process.
“From the SEQRA perspective it is particularly irksome,” said Wolinsky. “It is a example of how the process doesn”™t function properly and is anti-business. Here”™s a case where everything is disclosed very early and then bam, months after the process is over you get a letter from an agency that says ”˜Hey, you still have to do this.”™”
“That is the kind of issue that causes problems for developers,” Wolinsky said. “There is no one single thing that discourages businesses from doing business in New York; it”™s a combination of things, this being a pretty big one.”
He said RUPCO was awaiting further information from the DEC on what was needed to successfully navigate the permit process. The developer was willing to comply if it did not cost too much money or take too much time, he said, but RUPCO was reserving its right to litigate matters if necessary.
“From a legal standpoint, I think DEC is probably incorrect. I don”™t”™ think this would require a water-supply permit revision,” Wolinsky said. “We”™re trying to understand what it is DEC actually wants.”
Absent a court ruling, he said, the seeming contradiction about Woodstock town law and DEC permit regulations will remain unresolved.
“The jurisdiction issue could recur again, because a lot of municipal codes have provisions” similar to the Woodstock law governing water districts.
