Millerton supermarket: New lawsuit stops project in its tracks

Some may say it was bound to happen. Others may have been taken by surprise. Either way, the reality is there’s now a big bump in the road for Southern Realty and Development LLC (SRD), the applicant behind the proposed supermarket off Route 44 East, believed to be a Hannaford (though that has never been confirmed by the developer).The lawsuitThat bump is in the form of an Article 78 lawsuit, filed Tuesday, June 25, at the Supreme Court of the State of New York, Dutchess County, in Poughkeepsie. The action was filed against SRD and the North East Planning Board. “An Article 78 proceeding is used to appeal the decision of a New York state or local agency to the New York courts,” according to www.lawny.org. The move comes roughly three weeks after the board unanimously approved SRD’s site plan, after more than two years of detailed review. It also comes on the heels of the board’s decision to issue a negative declaration, which implies there will not be any adverse environmental impacts as a result of the project. The negative declaration passed with a vote of 4 to 3. SRD principal John Joseph said the lawsuit landed on his desk the morning of Friday, June 28.“It’s going to take time and money,” he said. “It’s another little bump. We’re going to drive over it and keep going.”The playersThe lawsuit was filed by the Ten Towns to Preserve Main Street, the Housatonic Environmental Action League, Anne Veteran and Sharon Kroeger. Kroeger and the Ten TownsThe Ten Towns to Preserve Main Street, of which Kroeger is co-chair along with retired Connecticut attorney Cyril Moore Jr., and Veteran is a member of, includes: Pine Plains, Washington/Millbrook, Amenia, Stanford and Wassaic in the Harlem Valley, and Sharon, Kent, Cornwall, Salisbury and Falls Village in neighboring Connecticut. Kroeger’s affidavit stated the 10 towns “will receive a heavy blow” from the supermarket as proposed, and charges the Planning Board did not adequately review the application. She also spoke about the negative impact of such a project on the region.“If a big box store owned by a corporation with a distant headquarters is built on Route 44 at the state line, local resources will be sucked out of the region forever. Megastores of the 36,000-square foot size being requested do not sell only food. They also sell pharmaceuticals, whatever alcoholic beverages are legal in a given state, plants, books and even clothes,” stated Kroeger, who owns and runs her own shop, Calsi’s General Store, in the hamlet of Wassaic. “The family-run food stores will lose their margins within a year, and their collapse will make it very hard for any of the main streets to stay alive, since their products and services will be duplicated at much lower cost.”Kroeger added that personally, she believes the Planning Board “could have at least shrunk the construction and planned for the right size buffer for wildlife, if they had wanted to.”Kroeger also addressed the possibility of SRD pursuing the existing Grand Union space, which Joseph has said all along was his first choice.“That is irrelevant to this situation, which is whether a huge structure of 36,000 square feet should be forced into that particular sensitive wetland,” she stated. “The answer ... is that it should not, that it is illegal, that it is immoral, and that it is not in the public interest. What SRD decides to do in another place at another time is not before us or before the court.”HEALAnother petitioner in the lawsuit is Housatonic Environmental Action League, Inc. (HEAL), a nonprofit 501(c)(3) grassroots environmental and natural resources conservation organization with members stretching along the Housatonic River and Ten Mile River watersheds (including residents of North East, Amenia, Dover and Pawling). Both Kroeger and Veteran are among its membership.HEAL claims the Planning Board did not take the welfare of the five bog turtles found on adjacent property, across the state line, seriously enough. “In this situation, it is impossible to give the necessary ‘hard look’ without acknowledging the reality that the endangered species may move in a normal fashion throughout the habitat, which overlaps two states,” wrote HEAL President Audrey Cole. “Furthermore, the wetlands should be protected by a 300-foot buffer, as are all the other such habitats within the Ten Mile River Watershed.”Cole went on to charge the Planning Board “has not done its work properly by trying to avoid the preparation of an Environmental Impact Statement [EIS],” which is part of the State Environmental Quality Review Act (SEQRA) process when a more detailed environmental review is required.Biologist Michael Klemens, a bog turtle specialist who did a report and spoke out against the proposal, agreed. He swore in an affidavit as to why he thought the project should be reworked.“The supermarket could have large and significant adverse impacts on Wetland MT-12 and on the bog turtle because of the proposal’s failure to comply with the Federal Recovery Plan’s 300-foot buffer to protect bog turtle habitat from development,” he stated.After much back and forth among the board, the applicant and many experts, the wetland buffer was allowed to remain at 100 feet, as proposed by the developer. Joseph said the buffer issue has been “regurgitated and negated” and the process has been completely transparent. It’s also won the approval of both his and the town’s engineers, he emphasized.The bog turtle issue had also been settled, Joseph said, and the land cleared for development.VeteranThe only petitioner in the lawsuit from the town of North East is Veteran, who had spoken during the review’s public comment. She also submitted letters and photos to the Planning Board about her concerns.Veteran’s complaint, specifically, is that a stream flowing from Kelsey Brook onto her property might flood once the 10-plus acre site where the 36,000-square foot supermarket will be built is developed.“We live in an area where the water table is quite high,” Veteran stated in a letter dated March 22. “Could a 36,000-square foot imprint shift where the water normally sits and push it off to the wetlands and then the creek? Of course it could, and it will. And where will we be left when that happens? Suing our town for not protecting us?“I don’t think anyone wants that,” she continued. “But we don’t want to lose our property either; I’d rather drive 30 miles for a big box supermarket than watch my property continue to erode from the creek.”But Joseph said that he and his engineer, Rich Rennia, tried to quell Veteran’s concerns when she spoke during a Planning Board meeting. Rennia even offered a business card and his time, to explain the project’s water retention system and drainage/run-off plans. The engineer also offered to visit her property if need be. Joseph said he put the offer out too.“I offered. We had never heard or seen her before and Rich and I offered to go and see her property,” Joseph said. “All of the water is deep in the ground, deeper than if raining, and will not affect her. She said since the gas station and jewelry store were built her property floods, and showed a picture from 2008. I don’t know when those were built; I’d have to do a little research. “We offered to give her all the documents showing her all the engineering and see what’s causing the flooding, and that it’s not anything we’re doing,” the developer added. “I suspect there were a couple of bad storms and the inverts or culverts were probably not large enough to handle what’s coming down the way.”According to the lawsuit, building the new supermarket will only make things worse.“Construction of the supermarket, with its large expanse of impervious surfaces and potential negative impacts on the wetland, threatens to exacerbate this problem,” it states.Negating the neg. dec.According to the lawsuit, “the heart of the petitioners’ complaint is that the town of North East Planning Board failed to comply with the State Environmental Quality Review Act [process] in issuing a negative declaration for a proposed 36,000-square foot supermarket to be located approximately a mile east of the historic village of Millerton. The petition also challenges the Planning Board’s approval of the site plan for the supermarket given on June 5, 2013 in reliance on the negative declaration.”The complaint continues to state that the negative declaration was reached despite a few factors: that the supermarket is surrounded on three sides by wetlands; the wetlands provide benefits, including flood control and bog turtle habitats, which will be threatened by construction; and that the supermarket will disrupt the village’s character, which includes the federally-registered “Main Street Historic District” designation.“[The petitioners] accordingly ask the court to annul the negative declaration and the site plan and direct the Planning Board to prepare a full environmental statement [EIS] before it takes further action on the project,” reads the lawsuit.Reactions“I’m in uncharted territory,” said Joseph. “Nowhere in my 29 years as a developer have I had an Article 78 filed. I think everybody should be very disappointed in this, it will drag on for years, or at least until the Grand Union goes out of business.... I hate to try this in the press, but it’s so frustrating. I’m in complete disbelief as to where we are.”Planning Board Chairman Dale Culver said he wasn’t terribly surprised by the news of the lawsuit.“I had reservations since the night everybody stepped forward. This is a complicated project and there’s a lot to it,” he said. “There’s a lot of fine-line work. I think our experts did a good job; I don’t know how the job we did will stand up but I hope it was thorough and complete. We did the job we were supposed to do. It’s just it is what it is.”As far as concerns about Veteran’s property flooding, Culver said he went with the advice he received from the town engineer.“I have our town engineer’s opinion and SRD’s engineer’s opinion,” he said. “I’m not an engineer or storm water expert, but if both of them concur I would give heavier weight to their opinion. Again, I don’t want to see this personalized at all. It’s been way too personal and way too touchy. Down the pike …“It’s a complicated project ... and to me [the Article 78] is an action taken up by a group of people about the process and everyone has that right,” Culver added. “If we did our job right our work will stand up. If we didn’t do our job correctly I assume our work won’t stand up.”Joseph had his own feelings about the lawsuit.“This could hold it up for years because we have to respond,” said Joseph of the complaints listed in the Article 78. “There will be a hearing and then we’ll wait for a decision, and then they could appeal. I’m firmly 100 percent comfortable that we will prevail. We have all the documentation and permits from the DEC [Department of Environmental Conservation], the bog turtle studies, the town took a hard look — I think they reinvented the hard look — I’m just very disappointed that one local citizen who’s concerned about flooding didn’t work with us to understand what’s going on.”