Zoning

In a court decision dated February 6, Judge Christopher Cahill dismissed the Friends of the Shawangunks Article 78 lawsuit against the Town of Gardiner Zoning Board of Appeals and the Wustraus, who own the property at issue.

The Friends of the Shawangunks does not believe that the Court substantively addressed our contentions regarding the scope of the Gardiner Zoning Board of Appeals' authority to grant a variance from certain of the Ridgeline restrictions. We continue to believe that the language of the Ridgeline local law precludes certain variances that the ZBA granted in this case.

GRIP copied the information above in blue from the "friends" website, announcing their appeal of the loss of their court case against the Wustraus and the town of Gardiner. They are appalled at the nerve of a landowner to try and put a 3,500 foot driveway on their property so that they can access the land and use it!!!

The paragraph below, on the other hand, is from the Mohonk Preserve website. Mohonk Preserve partners with the "Friends of the Shawangunks" group on their environmentally zealous actions against property owners. As you can see, the Preserve has many many miles of "carriage roads" that they are using our tax dollars to renovate and preserve. The differnce between a carriage road and a driveway are merely technical...but the purpose of each is to allow easy access to property so that people can enjoy it beauty and use it. However, Mohonks' carriage roads are projected as historic wonders deserving of preservation, and their existence is celebrated by all of the land trust groups. However, a single driveway, constructed by landowners of more than 100 years, is considered "scarring" the landscape and a potential environmental disaster.

This is hypocrasy at its highest level. We believe that the Wustrau family will prevail again in the courts, as is only right. "Friends", what will you do when NY State starts to put in a campground with roads galore? We hope that you are as fast to take the state to court as you will be the Wustraus!

A generous grant from the New York State Department of Transportation and the support of members and donors is funding the first major restoration of the Preserve’s 25-mile carriage road network in its more than 130-year history.

Begun in the fall of 2003, the first phase of the project includes the restoration of almost 9 miles of carriage roads in the southern Preserve. This phase is expected to be completed in 2007.

In 2006, the Preserve teamed up with ridge partners to plan expanding this to a multi-agency effort, including restoration of carriage roads on the neighboring Minnewaska State Park Preserve. Through this collaborative effort, partners hope to restore 62 miles of carriage roads over a projected three-year construction phase.

The Preserve's partners in this effort include the Palisades Interstate Park Commission and the New York State Office of Parks, Recreation and Historic Preservation.

Through January 2008, the Town of Gardiner has paid Joel Russell (consultant land planner/attorney) a total of $98,836.00 to help write our new zoning restrictions!

At the 3/4 Town Board meeting, the board voted to approve the restrictive zoning law for Gardiner by a 4-1 vote, with Joe Katz being the only NAY vote. Immediately upon voting in the law, Nadine Lemmon came up with a list of 9+ areas of the law that had negative comments by the public, and they should be addressed as revisions. Laurie Willow in the audience had another issue that was not on the list regarding the grandfathering of rebuilding on existing lots. We feel that a huge injustice and bad deal was made for everyone in Gardiner by passing this law, and there was never any real need for it in the first place, other than a NIMBY cry from small special interest and "environmental" groups.

At the 3/11 Meeting, it there was a sham discussion and voting on whether or not to address immediate ammendments to the sections of the law that had the most public outcry, and that the board promised to revisit. We are not surprised that each and every area of contention by citizens, including the inclusionary housing, and the driveway length restrictions, were voted to keep as is...no discussion, final. Shame on the town board and especially Nadine Lemmon, who was the chief whiner to pass the law as is PROMISING that citizens concerns would be addressed right away.

Discordant drive
FOS to appeal loss in ZBA, Wustrau lawsuit

by Mike Townshend
A battle over a controversial driveway in Gardiner might continue for some time.

Last week the Friends of the Shawangunks decided to appeal the Ulster County Supreme Court's dismissal of their Article 78 lawsuit.

During the summer of 2007, the Friends filed the lawsuit against the Gardiner Zoning Board of Appeals (ZBA) and the Wustrau family. At issue is Joan and Werner Wustrau's plan to build a 3,130-foot driveway to their North Mountain Road lot.

The Friends' lawsuit accuses the ZBA of "segmenting" the State Environmental Quality Review Act (SEQRA) process by allowing a driveway without considering any plans for a possible future house on the lot.

The Wustraus have said they don't plan to build a house at that site.

On February 6, Ulster County Supreme Court Judge Christopher Cahill threw out the Friends' lawsuit. Cahill wrote in his decision that the ZBA had gone above and beyond the call of duty during the SEQRA process.

The town had said that the long driveway was an "unlisted" action under the state law, which means that the property faced a light environmental review. Judge Cahill said that the driveway proposal was a "Type II" action -- which means it should not have faced any environmental review.

"This court rejects any contention that the ZBA did not have the authority to grant an area variance," the judge wrote.

A statement released last week by the Friends of the Shawangunks says that Judge Cahill was just plain wrong.

"We continue to believe that the language of the Ridgeline local law precludes certain variances that the ZBA granted in this case," the statement reads. "The SEQRA violations were numerous."

The ZBA's original July 26 notice of decision said that the extra-long driveway would not affect the environment. It also said that because most other neighbors have similarly large lots -- the Wustraus own about 40 acres -- many of them would not be even be able to see the driveway from their houses.

ZBA chairman Mike Beck did not immediately return a phone call requesting a comment on the Friends' appeal.

Werner and Joan Wustrau said they weren't pleased that the Friends had decided to continue the legal battle.

"We won this year, but we've got a lot of work to do," Werner said. "They're fighting for their rights; we're fighting for our rights."

The property in question was inherited by Joan from her aunt, and that land has been in her family since the 1800s. Joan is a descendant of the Enderly family, and many of her ancestors are buried nearby in the family's cemetery. She was born in a house a little more than a mile away from the North Mountain Road property.

Joan said she felt that the original Article 78 and now the appeal basically disregarded her family's long ownership of that land and their history in the area.

"Are we in Russia or someplace where we can't have our rights? This is stupid," she said.

According to Friends of the Shawangunks president Neil Zimmerman, the Article 78 was never meant as a personal assault against the Wustraus. Instead the group's issue is with the conduct of the ZBA, he said.

However, Werner said he didn't buy that logic and said that the ZBA had done a good job.

"They don't want nobody to do nothing with the land up there," he said. "It's going to be a costly process again for us."

The Wustraus first sought a variance from the town before the new Shawangunk Ridge protection law went into effect. After that law, the couple had to re-apply for the driveway variance. The current zoning on that lot would normally limit a driveway to 2,500 feet.

The Friends of the Shawangunks contend that the ZBA should not have been able to grant a variance for such a long, winding driveway on such a steep slope.

"Our issues were right in the beginning," Zimmerman said. "And there's no reason to think they're any less right right now."

According to Zimmerman, the late February meeting where the group voted to appeal was pretty typical. While most members wanted to appeal, the Wustrau driveway vote wasn't unanimous -- a handful of members who live in Gardiner near the North Mountain lot sat out, he said.

It is unclear if a judge will pick up the appeal. Zimmerman admitted that "a successful appeal is quite rare."

However, the Friends president said the group was hopeful that their appeal would be considered. "Our lawyer felt we had a really good case."

The following is an update "News" directly from the "Friends" website. It shows their arrogance in wanting to direct the activity on land that does not belong to them, and their desire to prevent any future signs of humanity on the ridge. We let their words speak for themselves:

News

FOS Appeals Ruling in Case Against Gardner ZBA

In a court decision dated February 6, Judge Christopher Cahill dismissed the Friends of the Shawangunks Article 78 lawsuit against the Town of Gardiner Zoning Board of Appeals and the Wustraus, who own the property at issue.

The Friends of the Shawangunks does not believe that the Court substantively addressed our contentions regarding the scope of the Gardiner Zoning Board of Appeals'; authority to grant a variance from certain of the Ridgeline restrictions. We continue to believe that the language of the Ridgeline local law precludes certain variances that the ZBA granted in this case.

We also believe the Supreme Court was simply wrong when it concluded that the "action" was a Type 2 action under SEQRA (NYS Environmental Quality Review Act) because the ZBA determined that it was an Unlisted action. In addition, we think that the segmentation arguments that we made should have prevailed.

As we continue to believe that the ZBA decision granting the variances was in violation of both the Ridgeline local law and SEQRA, we have decided to appeal the decision.

Friends of the Shawangunks filed a lawsuit in 2007 against the Gardiner Zoning Board of Appeals over the ZBA's granting of four variances to build a driveway and over its failure to abide by the New York State Environmental Quality Review Act, or SEQRA. This is the first test of Gardiner's Shawangunk Ridge Protection zoning regulations, adopted in 2006.

The property owners sought the variances because:

* The proposed driveway was 3,130 feet long but the code sets a limit of 2,500 feet.

* The new SRP regulations prohibit construction of more than 250 feet of driveway on slopes of between 20% and 30%; the proposal called for 1,031 feet of driveway on such slopes.

* The proposal also calls for building 200 feet of drive on slopes greater than 30%, while the regulations prohibit construction on slopes of more than 30% under any circumstances.

* The grading and cutting required were well in excess of the eight-foot-wide limitation.

The SEQRA violations were numerous. Most significant was approving the driveway without considering plans for a proposed house site. This is known under SEQRA as "segmentation" and is clearly prohibited, as the ZBA had been advised by its attorney.

FOS decided to bring this suit not only because the ZBA had clearly not done its job properly but also because approval of this project would set an unacceptable precedent for other property owners to use in seeking developments that would harm the Ridge.

An Ulster county court passed judgment on an Article 78 lawsuit filed by "Friend of the Shawangunks" again the town of Gardiner ZBA and Werner and Joan Wustrau. The suit was over variances given to the Wustraus' regarding their request to create a driveway giving them access to their 40 acre property on the Ridge. This suit shows that sometimes justice prevails, and the judge saw clear to rule against a group who only wants to prevent any and all signs of humans on the ridge. Our congratulations to the Wustraus' in hopes that they can continue to get the permits needed to go forward with their driveway!

Dear GRIP Supporters:

A victory, possibly small and temporary, but a victory nonetheless, was won last evening at the final Town Board meeting of the year. The board was unable to get the consensus to come to a vote on the proposed zoning last night. Some town board members were putting a good deal of pressure out to try to finalize and pass the sweeping restrictive zoning laws before the not-soon-enough-for-us departure of Supervisor Zatz and Councilman Bialecki. Although the board was able to get through and resolve "issues" brought up in public comments and both the County and Town Planning Boards at last Monday's meeting, the clock ran out on them before they could get their legal ducks in a row. Questions still remain as to the agreed to changes are "substantive" enough to necessitate the writing of a new draft that would once again go to public hearings in the new year. Of course GRIP believes that any changes to the law without giving the public a chance to speak is wrong.

However, the real glimmer of hope during the deliberations was when Joe Katz announced that he was unable to make any decisions on density acreage for subdivisions without more information about how the proposed law would impact build-out figures, traffic patterns, and the general tone and quality of our towns "rural character" that was so much discussed during the election.

We know that many of you were able to submit 11th hour comments to Town Hall stating your concerns about the issues above, and if there was a real need for such restrictive and punitive zoning in our town. We'd like to think, and we do think, that your voices were heard, and at long last listened to!

Although there was no vote last night, and any decisions going forward will be made by a hopefully more people and property-owner friendly board, now is not the time to get complacent. Many of you have continually spoken out over the last year about the numerous problems the new zoning would cause and how unfair much of the current SP Ridge Zoning is to so many property owners. Now, more than ever, is the time to continue to speak out about your concerns over the zoning, and the devastating impact it will have on every single property owner in Gardiner. We'll keep you posted on upcoming doings of the Board regarding zoning and other matters of importance to property owners.

Congratulations on making your voice count! Both Marion and I wish you all a very Merry Christmas, with hopes of a freer New Year in Gardiner.

Marion & Pam

Dear Grip Supporters:

The Public Hearing on Monday night for the proposed Zoning law changes was well attended...in fact the room was full. Indeed, the room was full of people who had little if nothing to say positive about the changes in the current law, and a lot to say about how many ways it could harm and destroy property rights of so many in Gardiner.

Questions from the public came out regarding the need for many of the restrictions,and also the arbitrary nature of the acreage required to subdivide a property, which
keeps changing with each revision and is still in question.

In spite of the continuous loud public outcry against the law, the town board closed the public hearing, and began deliberating on how many, if any, changes they needed
to or wanted to make to the law.

Councilmen Bialecki and Kern were ready to pass the law on Monday night, disregarding public comments as well as comments back from the Ulster County and Town of Gardiner
Planning Boards, along with the NYS Dept of Ag and Markets. Clearly, although they were required to accept comments, they didn't feel the need to actually take them under consideration.

However, because of the hesitation to pass the law "as is" by the rest of the board and attorney Joel Russell, who was in attendance, it was decided to try and resolve any issues with the law in a marathon meeting next week, followed
up by an evening meeting less than a week before Christmas, in an attempt to try and push the law through before Zatz and Bialecki leave the board at the end of the year.

The "deliberation" meetings will be held at Town hall on Monday December 17 from 3PM to 7 PM, and another meeting is set for Wednesday, December 19th at 7PM for the purpose of giving us a horrible zoning law as their parting Christmas
gift!

What can we do at this stage? Although the public hearing is closed, the town accepts written comments for a short time after. We urge anyone to write a brief letter
to the town board at PO Box 1, Gardiner, 12525, expressing concern about how no studies have been done to determine what impact this law will have on the nature and character of the town, as well as things like traffic, water quality, government services, etc. Please do this TODAY! Also, if you can make the meetings above,it will help to show that people in Gardiner are concerned and worried about the
impact of this law.

The public outcry has made a difference, and the press is beginning to pick up on it. Lets keep the pressure up, and not allow a few people to push a law on us that will be bad for so many!

Thanks for your continued support,

Marion and Pam

The article below appears as "News" on the Friends of the Shawangunks website, where they are attempting to rationalize their very unfriendly lawsuit against both the Town of Gardiner ZBA and the Wustraus who own property on the Ridge.

As we reported earlier, the Wustraus wanted to be able to have easier access to their property, and asked for and were granted variances by the town ZBA to build a driveway....no more and no less.

The self-appointed defenders against all things having do do with land use on the ridge have also sent a letter to the New Paltz Times (11/15/07 issue) chastising reporter Annie Pyburn and the paper for not getting the facts straight.

So, we'd like to turn the tables for a moment on the "friends", and look at the accuracy of the statements that they make in attempting to justify their lawsuit. In his Letter to the Editor, H. Neil Zimmerman, President of the Friends of the Shawangunks states that "the ZBA was required under the State Environmental Quality Review Act SEQRA to conduct an environmental review of both the proposed driveway and the house at the same time. That the ZBA failed to do so, despite the plans submitted, was a clear violation of SEQRA."

We went to the SEQRA website, and under the FAQ's section, found the following:

"Does a zoning board of appeals, when interpreting a zoning law or ordinance have to apply SEQRA? No. As part of their appellate jurisdiction, zoning boards of appeals (ZBA) are specifically authorized to render interpretations of local zoning laws. Interpretations of the local zoning law by zoning boards are classified as Type 11 actions, which are exempt from SEQRA review."

The fact that the plans submitted to the ZBA showed a home site as well as a driveway (which we're taking their word for, since we haven't seen them) is irrelevant, since the ZBA only was asked to and ruled on the variances for a driveway.

Mr. Zimmerman also states in the letter that "our Article 78 lawsuit against the Gardiner Zoning Board of Appeals (ZBA) a suit against a particular property owner, when it really is about the ZBA's failure to do its job properly." According to the Gardiner Town Website, the whole purpose of the ZBA is to issue variances to the zoning laws when they are inappropriate, punative, or create an unreasonable hardship for a property owner.

The president of the "Friends" also quotes from the intent of the Ridge law, insinuating that the ZBA ruling somehow goes against it. We were present during the whole time that the Shawangunk Ridge law was being written by the consultants and town board, and time after time, property owners were verbally assured that the intent of the law was not to punish individuals or to keep them from use of their land. The Town Board members said over and over that property owners only needed to get variances from the ZBA to build on or use their land.

As much as they will try, the actions of the Friends of the Shawangunks are pretty hard to defend on any level, but especially in the court of humanity and fairness. If the rationale they use in the courts is as flimsy and shallow as what they present to the public, we have faith that the Gardiner ZBA and the Wustraus will prevail in this matter.

News - taken from the http://www.shawangunks.org/

Lawsuit in Gardiner

Friends of the Shawangunks filed a lawsuit on Sept. 24 against the Gardiner Zoning Board of Appeals over the ZBA's granting of four variances to build a driveway and over its failure to abide by the New York State Environmental Quality Review Act, or SEQRA. This is the first test of Gardiner's Shawangunk Ridge Protection zoning regulations, adopted in 2006.

The property owners sought the variances because:

* The proposed driveway was 3,130 feet long but the code sets a limit of 2,500 feet.

* The new SRP regulations prohibit construction of more than 250 feet of driveway on slopes of between 20% and 30%; the proposal called for 1,031 feet of driveway on such slopes.

* The proposal also calls for building 200 feet of drive on slopes greater than 30%, while the regulations prohibit construction on slopes of more than 30% under any circumstances.

* The grading and cutting required were well in excess of the eight-foot-wide limitation.

The SEQRA violations were numerous. Most significant was approving the driveway without considering plans for a proposed house site. This is known under SEQRA as "segmentation"; and is clearly prohibited, as the ZBA had been advised by its attorney.

FOS decided to bring this suit not only because the ZBA had clearly not done its job properly but also because approval of this project would set an unacceptable precedent for other property owners to use in seeking developments that would harm the Ridge.

The Inclusionary Housing regulation (220-42 ) of the proposed zoning law should be eliminated in its entirety from the zoning regulations. Although the law is cited as a goal of the 2004 Master Plan, nowhere in the plan is his type of housing discussed as being mandated by a zoning regulation. Nor does this seem to be the intent of the Master Plan, which mentions "affordable housing" as only one of a list of possible concessions to the town in exchange for more density by builders.

Indeed, this regulation would cause an immediate increase in the size, power and intrusiveness of town government by creating an entirely new group called the Housing Authority. This department could be appointed from untrained volunteers, or worse, delegated to outside third party entities who would determine who and under what conditions ownership of the homes would be allowed. It sets up the town government as a Landlord, real estate agent and "superintendent of buildings" all rolled into one. This new "authority" will oversee the selection of home buyers or renters and have the power to oversee the selection of who be allowed to live in the community. They will have ultimate authority to permit or deny the sale, renovation, or even emergency repair of homes in the community. Free will and choice are taken out of the homeowners hands. This should not be a proper role of town government but instead driven by a natural marketplace where free will and choice can be exercised by both home buyers and builders.

This regulation is also harmful in that it would cap the investment potential of the properties for buyers, eliminating one of the most basic and important reasons for home ownership, which is to create a secure and stable investment and asset that could grow equity over time.

This section doesn't allow for another basic benefit of home ownership which is the ability to improve and expand ones home as necessary. This regulation discourages healthy family growth, since a homeowner is not allowed to expand the footprint of their property, or make improvements that reflect pride of ownership. Indeed, the regulation institutes perpetual restrictions on occupancy and resale, regardless of the status of neighboring properties in the development or throughout the town.

Homeowners are not the only ones hurt by this regulation. Builders are penalized as well in having this section mandatory, which creates an inequality in housing types in the same neighborhood. This causes non-restricted homes to be more costly which negatively impacts other middle class home buyers. Instead, the town should encourage, but not mandate a diversity of home types by lifting regulations and guidelines, not by creating more. The town should offer tax breaks or other bonus concessions to builders who willingly create lower priced starter and senior homes as part of their developments, but they should not try to force these mandates in areas where there is no proof that these types of housing are either needed or wanted.

The current zoning document that is before the Town Board is a property owner’s nightmare. The restrictions, requirements, guidelines, processes, allowances by waiver, exceptions, conditions, compliances, permits, limitations, approvals, mandated conformities, and prohibitions are all designed to strip property owners of use of their land. This flies in the face of our Constitutional rights to our private property and all it’s uses as stated in the 5^th amendment.

I read over 35 pages of the proposed zoning, but put it down in disgust as virtually every paragraph and clause outlined the myriad methods by which the use of my property could be diminished through zoning. While purporting to “balance individual property rights with the goals of the community”, the scales were unquestionably tipped in favor of communal group rights instead of rights of the individual.

The document attempts to portray the proposed zoning process as “predictable, efficient, and fair. “ Muddied and vague language, with much left to the discretion of the Planning Board, makes this document anything but predictable. Allowing uses by right is by far a clearer way of letting people use their land.

I would hardly call this document efficient, unless the term is used to describe effectiveness in preventing buildings or people from marring the landscape.

And “fair” is the last word I would use to describe the zoning law. When the ARR200 zoning was being changed, this Town Board promised over and over in public hearings that the intent of the restrictions was not to punish individual property owners. They gave repeated assurances that for single home permits in the sacred SP3, the owner merely had to get a zoning variance. As in the recent case of the Wustrau property, where although a variance was narrowly approved, the ZBA and property owners are now subjected to an article 78 lawsuit filed by “Friends of the Shawangunk” who are determined to never allow another building on the ridge. How fair is it when a property owner has to beg permission and then be taken to court over the simple use of his own land? How fair is it when virtually all use but goat farming is banned to property owners who are unfortunate enough to own a piece of the sacred ridge? How fair is it when the interests of outside environmental groups and tourists take precedent over residents and taxpayers? How fair is it that the large landowners who have thus far kept Gardiner beautiful for the rest of us are now the ones being punished?

The proposed zoning gives us prevention in the name of protection, and a weakening of our property rights in the name of strengthening zoning. Please, stop protecting our rights before they are completely taken away.

Pamela J. O’Dell

South Mountain Road

Scenic Overlay District, Coveted Ridge

Gardiner NY