5/13/09 -- Two accomplished New York land use attorneys have confirmed the opinion that the Village of Potsdam in its haste and lack of written analysis to approve the Health Care Zone - 15 (fifteen) plus acres around Waverly Street - has impermissibly violated many state environmental rules to date, even as it contemplates approval of the zone at its May 18th meeting after a public hearing at 7 PM. The Health Care Zone has the potential to create major changes in a residential area over the near and long term - permitting doctors' offices, a new emergency facility, cancer clinic, parking lots, etc. - and yet the village has acted as if no environmental impacts are foreseeable. That is impermissible under state law. Under New York State Department of Environmental Conservation regulations for proper public adoption of zoning changes and other projects, the State Environmental Quality Review (SEQR) law specifies multiple mandatory procedures and actions that the Village of Potsdam has completely ignored:- The determination of environmental "significance" that is at the core of the DEC rules is to take place "as early as possible in the design or formulation of the action." Potsdam originally described plans for a Health Care Zone in its 2006 comprehensive plan. The village - through its planning department -- has been redesigning the details of the plan since at least late 2008. Yet to date, the village has made no written or verbal review or determination of environmental "significance" of the rezoning. (DEC Regulations Section 617.6 (b)(1)(i))
- Village officials have claimed they will review changes to the neighborhood resulting from the rezoning on a piecemeal basis as site plans are submitted. But the law states that where a plan such as a rezoning has a clear roadmap - which we know from published documents means parking lots, an emergency room, doctors' offices, etc. - it is illegal to "segment" the review and pretend various developments are not "reasonably expected" to follow the rezoning itself. (DEC Regulations 617.3 (g), 617.3 (g)(1), 617.4 (a)(1))
(The process of rezoning itself must consider "the entire set of activities" provided for by the rezoning since the whole range of developments (doctors' offices, pharmacy, parking lots, ER, cancer clinic, etc.) is "reasonably expected" right now. (DEC 617.3 (g), 617.4 (a) (1))- The village has drawn up a 'short-form' Environmental Assessment Form (EAF) , but because everything on the public record indicates the Health Care Zone proposal can be "reasonably expected" to lead to "physical alteration of 10 acres" or "expansion of existing nonresidential facilities" of more than 5 acres, the rezoning is undeniably a "Type 1" action that requires complete analysis by the full Environmental Assessment Form, almost inevitably leading to a full Environmental Impact Statement (EIS). (DEC Regulations 617.4 (a) (1), 617.4 (b) (6), 617.6 (a) (2), 617.7 (a) (2))
- The short form EAF (attached) the village has improperly prepared (see above) fails to meet even the minimal standards that do apply to that highly abbreviated form. The village form is devoid of any environmental assessment, yet the law is clear: "A properly completed EAF must contain enough information to describe...potential impacts on the environment." Instead, the Potsdam form does not describe ANY environmental issue - whether traffic, garbage, community character, water usage, light and noise, etc. The Potsdam form contains only bare administrative information. (DEC Regulations Section 617.2 (m))
NOTE: We submitted a Freedom of Information request at the direction of the Village and were given the form (attached) by the Village in its stated complete condition last week. It is a month old anyway. A follow-up call to the village clerk today indicated no additional information has been put on the record for the zone proposal.
- Village board members have said a vote may occur on May 18th, but such a vote would almost invariably require a full Environmental Impact Statement (EIS) be prepared to be legally-sufficient for proper local policy-making under SEQR rules. An EIS is required when such impacts "a substantial adverse change in ...traffic," "impairment of ... existing community or neighborhood character," "substantial change in use or intensity of use of land," and "encouraging or attracting of a large number of people" are "impacts which may be reasonably expected to result" from the rezoning in the immediate-, medium- and long-term."(DEC 617.7 (a) (2), 617.7 (c) (1) (i), 617.7 (c) (1) (v), 617.7 (c) (1) (viii), 617.7 (c) (1) (ix), 617.4 (a) (1)).
The "reasonably expected" developments within the Zone - doctors' offices, parking lots, new emergency room and cancer clinic, etc. - have been repeatedly reiterated on the public record by the hospital, the planning board, village officials, and public testimony.- The rezoning conflicts with 2006 Potsdam Village Comprehensive Plan stated objective to "revise its zoning ordinances to better reflect smart growth land use principles" and hence is in "material conflict" with "current plans or goals as officially approved", and therefore creates a significant impact reviewable only by a full Environmental Impact Statement. (Village of Potsdam Comprehensive Plan 2006, p. 24; DEC Regulations 617.7 (c) (1) (iv))
Regulations of the New York State DEC cited here are available online http://www.dec.ny.gov/ regs/4490.html#18109PotsdamSmartGrowth.org continues to argue that temporary measures including demolitions could be used address the current parking problems while village and institutional leadership analyzes the possibility of an alternatively sited Health Care Zone on the old Clarkson University campus.Such an alternative, about which Clarkson President Tony Collins said he was meeting confidentially with Canton-Potsdam Hospital President David Acker in January, could offer a crown-jewel healthcare-education/healthcare/commercial/ transportation center that would benefit the region. It is an alternative that must be publicly aired and explored, not hidden in a secret meeting.Furthermore the alternative plan would free up the current hospital campus for redevelopment with low-rise energy-efficient apartments or condominiums, senior citizen housing, and green space - a financial boon for Potsdam and an environmental achievement.Meanwhile the current plan promises to destroy the viability of a core residential neighborhood and push residential growth outside the village, leading to sprawl and far greater carbon emissions over the decades to come. Potsdam Smart Growth (PotsdamSmartGrowth.org) is seeking volunteer plaintiffs and attorneys who will challenge any vote on rezoning the Village Board takes based on the current deeply flawed and legally improper process. Please contact us at rb.1006@yahoo.com.Please note: The environmental attorneys we consulted provided information on a non-client basis at no charge and were therefore not willing to have their names divulged. Both attorneys have been in practice 10 or more years and have substantial academic or litigation credentials. One is senior law professor and the other a successful litigator.
Prepared by Richard Brummel, Organizer
Potsdam Smart Growth
5/13/09
|