’80s subdivision green lighted
In 1988, Ronald Reagan was president, Milli Vanilli ruled the pop charts and Glickenhaus Brewster Development Inc. proposed to construct 139 houses on a 310-acre site in Putnam County. Almost 20 years later, the project, known as The Meadows at Deans Corners, appears finally destined to go forward.
A court decision stating the town of Southeast Planning Board erred in approving the project was overturned Nov. 19 by the state”™s highest court, the New York State Court of Appeals. The bickering was over environmental reviews.
One reason the review process dragged on so long is that the project would be located in the watershed of the Croton Reservoir, which provides about 10 percent of the water to 9 million New Yorkers. After the developer completed the environmental impact statement (EIS), as required under the State Environmental Quality Review Act (SEQRA), in 1991, the city of New York changed its regulations for the permitting process in order to meet stricter federal safe-drinking mandates.
Glickenhaus Brewster responded by reducing the size of the project to 104 units and replaced its plan for a conventional wastewater treatment plant to a more rigorous system of sewage disposal: Instead of having the treated effluent flow into the reservoir, it would be discharged into the ground. The phosphorus would be absorbed into the soil. It also proposed constructing a series of water retention pools for storm-water runoff to reduce the amount of phosphorus leaving the site.
The developer submitted a supplemental EIS to address the wastewater treatment, but several environmental groups, including Riverkeeper and the Croton Clean Water Coalition, said an additional review was needed, given the change in the regulations. They pressed the Southeast Planning Board to require the New York City-based developer to submit an additional supplementary EIS, but instead it approved the project.
The groups subsequently sued the planning board and Glickenhaus Brewster. Initially, the Westchester County Supreme Court ruled in the environmentalists”™ favor, requiring the planning board to revisit the issues identified by the opposition. The planning board explained why the supplemental EIS was unnecessary. The required permits were granted by other agencies and the planning board approval the project. The environmentalists sued again, and this time the state Supreme Court sustained the planning board”™s decision and approval. The environmentalists appealed to the Appellate Division of the Supreme Court of the Second Department, which overturned the lower court”™s ruling. The planning board”™s and developer”™s attorneys then approached the Court of Appeals.
Rick O”™Rourke, an attorney at Keane & Bean P.C., based in White Plains, who was one of the lawyers representing the developer, said the Court of Appeals”™ opinion was a win for business interests, demonstrating that the SEQRA review process can allow for economic development.
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“All too often, opponents to projects will attempt to delay them by claiming that additional environmental reviews are necessary. This is costly and puts the state at an economic disadvantage,” he said. “This opinion is a signal to the lower courts that the standard of review remains firmly in place. A court”™s role is limited to deciding whether the agency identified relative areas of environmental concern, took a hard look and made a reasoned determination of that. It”™s not the court”™s role to second guess that of the agency.”
But James Bacon, a New Paltz-based attorney who represented two of the environmental groups, the Croton Clean Water Coalition and the Putnam County Coalition to Preserve Open Space, said in fact the planning board hadn”™t taken a hard look. The planning board had failed to include important records, such as a storm-water pollution prevention plan, in the files. While Bacon acknowledged the developer had made favorable changes to the project, the review process hadn”™t been transparent, as required by law, and so another supplemental EIS was necessary, he said.
Furthermore, he said the “issue of fact” at the heart of the case should have been resolved by the lower courts and was outside the Court of Appeals”™ purview. “The proper thing would have been to send the case back down to the lower court for the fact finding on that issue. We were expecting the Court of Appeals to say, ”˜Was a hard look taken?”™ What they did instead was go back into the factual controversy, relying on the developer”™s version of the facts.” The information in the EIS files is complete now, but it wasn”™t during the review process, when it should have been, he said.
Bacon said he planned to make a motion to re-argue the decision. “We”™re asking the court to take a second look at the decision. It”™s the last chance to revisit the planning board”™s ultimate decision.”
Jim Glickenhaus, a principal of Glickenhaus Brewster Development, said the length and expense of the review and litigation process had unfortunate consequences on the housing market. “The cost of the lawyers, the cost of the courts, re-approving things you got approved 20 years ago, it all gets passed down,” he said. “The dirty little secret is that in the end it really raises the price of housing.”
“Quite frankly, we met the requirements of the watershed a long time ago,” he said. “The idea that anyone would have the intention to purposely defile it is absurd. People are staring at hundreds of acres of land they don”™t own, and they begin to think it”™s theirs.”
Glickenhaus described his company, which is owned by his father and himself, as a Wall Street firm that ventured into real estate. It has completed projects in Scarsdale and Chappaqua, but real estate had proved to be “a monumental waste of money and time. In 20 years we turned $1 into 99 cents. We earned 15 percent for our client on Wall Street. We build nice stuff. There should be regulation and oversight, but at a certain point there has to be closure.”
O”™Rourke said he hoped the court”™s determination would result in some “fine tuning” of the SEQRA process. “There”™s a recognition that the courts are not to inject themselves in the local decision-making process,” he said. “The court also recognizes that just because the passage of time occurs, that doesn”™t equate to more review.
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“I know many prominent developers, engineers and consultants who develop lands in and outside of New York,” O”™Rourke said. “Many of them have decided to pursue their interests outside New York, particularly in Connecticut, where the environmental regulatory process, while thorough, is less expensive. If we get more decisions like this, the process might move forward.”
But Ann Fanizzi, chair of the Putnam County Coalition to Preserve Open Space, said that careful review is paramount, given the pressure of development. While The Meadows “was always too big and dense,” her group “does not have a no-build position. What we said was not that the project be doomed, but that the developer should submit a supplementary document to the planning board, taking into account the 20-year period. An awful lot has changed.”
Bacon added that the environmental groups can”™t take sole blame for the delays. He noted it was the developer who decided to pursue the case to the highest court, further delaying the review. After the first trial court ruled in the environmentalists”™ favor in 2003, the planning board could have required the developer to submit another supplementary EIS, in which case “the developer would have been done and over in nine months to a year. It would have had an ironclad approval and given the public an opportunity to comment and hopefully address the concerns.”
Bacon also said he had contacted the state attorney general”™s office about the case and “they agreed it presented issues of statewide importance with regard to cleaning up the reservoirs. The whole reason for this review is that the New York City reservoirs are impaired and violate the Clean Water Act. The towns have to reduce the amount of phosphorus to bring the water back into compliance.” Although a filtration system is planned for the Croton Reservoir, too much phosphorus “fouls up” the filtration, he said.
Fanizzi said several other large developments are in the planning stages in the Croton watershed, all within a short distance of each other. One is a subdivision, known as the Campus at Field Corners. Another is a 273-townhouse development called Kent Manor, and a third is 381 units of senior housing in Carmel. Also proposed are two commercial, big-box developments. “Our reservoirs are along some of the roads, and there”™s a collision between the effort to develop and maintain quality drinking water. It”™s not easy.”
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