Four suits reach court…at once

Opponents, company spar over Ginsberg’s warehouse project

HUDSON—Attorneys for all four parties who have filed civil law suits involving the warehouse and office building proposed by Ginsberg’s Institutional Foods, Inc. and DNJ Properties gathered for a hearing April 1 in the courtroom of Columbia County Court Judge Richard Koweek.

Ginsberg’s, a regional wholesale food distributor of in Claverack, is seeking approval to build a 50-foot tall warehouse and office facility and a garage on a 33-acre site a short distance up state Route 66 from the company’s current headquarters. The site straddles the line between the Towns of Claverack and Ghent, and that has meant the project must meet the planning and zoning requirements of both towns.

Neighbors opposed to the project have sued the Ghent Planning Board for determining that  the project would have no significant environmental impact. In three separate pleadings they are seeking to have the environmental decision, called a negative declaration, and other actions by the two towns overruled.

Despite its decision on the environmental impact of the proposal, the Ghent Planning Board voted late last year not to approve the project. In response Ginsberg’s Foods filed an Article 78 action of its own against the Ghent Panning Board.

Much of the legal debate last week focused on the impact of the removal of 183,7000 cubic yards of earth as part of the excavation for a 294,366-square-foot refrigerated warehouse and retail food distribution center. The plan also calls for parking spaces for 297 cars and 168 tractor trailers, with another 8,583-square-foot truck maintenance building nearby. The company expects it will take up to 10 years to build all these facilities.

The removal of 9,000 or more truckloads of soil during and after site preparation is one of several aspects of the plan that would have a “moderate to large impact.” At issue is whether level of impact automatically triggers a detailed, lengthy and expensive environmental review.

The petitioners, Thomas Runyon, Ronald Cardis, Richard Harrison, Cecile Harrison, and others who own homes located close to the site have followed approval process in the Towns of Ghent and Claverack since the project was first presented in fall 2013. The neighbors, represented by attorney Ken Dow, have filed three Article 78 proceedings against the boards of both towns.

The first suit challenges the Ghent Planning Board’s determination that the project will cause no adverse environmental impact. The second suit concerns area variances granted to Ginsberg’s by the Ghent Zoning Board of Appeals, allowing the removal of 50,000 cubic yards of soil from the section of the project located in Ghent, and allowing a structure 15 feet taller than the 35-foot limit specified in Ghent’s zoning code. The third suit is against the Claverack Planning Board, challenging its approval of the Ginsberg’s site plan and the granting of a special exception use permit.

The neighbors and Mr. Dow argue that the Ghent Planning Board did not follow the process required by the State Environmental Quality Review Act (SEQRA), and that the other boards made errors in applying their respective town zoning codes.

“The Board cannot simply say that an application complies with the law or the zoning code; it must address the specific requirements set out in the Code, and the written decision must identify the facts in the record that were relied upon to reach the decision,” Mr. Dow said in a court document.

“It’s not what they did do… but what they did not do,” he said in court., going on to say that the Ghent Planning Board’s decision should be “annulled” because the board failed to follow the procedure required under SEQRA. “It should not just be railroaded through and approved, it needs to be looked at.”

The neighbors seek the annulment of the negative environmental finding, site plan approvals, and special use permits.

The suit filed by Ginsberg’s Foods against the Ghent Planning Board was filed after the Ghent Planning Board, the lead agency for the project, voted against the project December 3, 2014. The plaintiffs’ attorney, Charles Malcomb, argues that “a board cannot render findings in issuing a SEQRA negative declaration and then reverse itself on those same issues to justify a denial of the underlying application.” He also argues that the Planning Board’s claims of inadequate water supply and inappropriate use for the site are “improper rationales.”

“The issue is you can’t just walk away from the previous findings and deny the project without explanation, and that is what happened,” Mr. Malcomb said. “There is no evidence of how the Ghent Planning Board got to their conclusion.”

Attorney Jeffrey Baker, representing the two towns being sued by Ginsberg’s, described an exhaustive process by both towns in which “all issues were carefully addressed, all the potential impacts were fully exhausted.”

But Mr. Dow disagreed in the case of Claverack. He said that while the Claverack code has a specific list of items to be addressed the Claverack Planning Board “did not make itemized findings. They just said the code is satisfied. They fell short,” he said, calling it a “failure to comply with requirement of the law.”

Mr. Baker called the case unique and unprecedented. “Two administrative entities came up with opposing conclusions,” he said, and he described the demand by the neighbors for a full environmental impact statement “an absurd extra expense.”

The Ghent Planning Board had to determine whether the project met the criteria for a special use permit, Mr. Baker said. But he said the criteria were “not amenable to quantification.” The scope of the proposal “dwarfs everything else in the area,” he said, adding, “They felt it was not appropriate to the area.”

Mr. Baker argued that the granting of the permit is determined on a case by case basis. In this case, he said, “it was too large for the area and did not meet criteria for a special use permit.”

“The surrounding area includes industrial uses. It is consistent with town comprehensive plan, it will result in employment. Changing in thinking alone isn’t enough,” Mr. Malcomb.

At the close of last week’s hearing Judge Koweek granted Mr. Dow two additional weeks to prepare a reply to the Ginsberg’s suit, and Mr. Malcomb two weeks after that to prepare a response. No decision is expected until after that process is complete. And whenever a decision is released it is likely the losing side or sides will appeal.

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