State right to take on Milan zoning case
The Town of Milan will be the first in the state to use one of the promised benefits for communities in the Hudson River Valley Greenway Compact, which is reassuring to any of the others trying to make sure their areas grow properly.
The state attorney general's office has decided to take on the town's ongoing battle with Red Wing Gravel over a mining operation the company wants to locate in the small northern Dutchess County community.
The court battles with Red Wing began when the town's 2006 comprehensive plan was adopted including language calling for the elimination of mining. With residents concerned about the traffic, noise and dust from a mining operation, the town repealed the floating light industrial zone that allowed such operations to be approved despite zoning hurdles.
A state judge this year voided the plan, saying town officials did not strictly follow environmental laws in drafting the plan or in repealing the floating light industrial zone. Concerned about the legal cost of an appeal, the town turned to the state environmental conservation law.
It says Greenway communities will be provided with an indemnity against lawsuits resulting from adoptions or use of zoning laws or ordinances reflecting the Greenway's conservation and land-use principles.
It's never been tested before, and the state has done the right thing in making Milan its first case.
Case costly for town...Since 2006, the town has spent more than $40,000 on various legal fees on the case. It needs the additional expertise the state can provide as local officials figure out how to get land-use planning back on track.
The situation in Milan has provided the Greenway with the opportunity to make good on one of the incentives offered to municipal officials willing to adopt the Greenway planning philosophy for their communities. That philosophy includes developing strong town centers and protecting some open space and farm land - and taking into account community concerns about development. The Milan case will have to be judged on the legal merits, but there's no question that if the state dangles incentives to communities to embrace certain principles, it should live up to its obligations when opposition arises.
Poughkeepsie Journal Editorial (Aug 15)
Keeping Milan Mining Ban Is Worth Legal Fees
Much of the coverage of the Town of Milan's appeal to re-instate its ban on industrial-scale mining in residential areas focuses on the cost of the appeal: $33,500. Very little is devoted to the cost of not appealing.
And yet the costs of not appealing are why citizens of all stripes are contributing to a legal defense fund for the town, working in a nonpartisan way with all five members of the town board to offer financial help.
While inaction would save $33,500 on the town's budget line this year, the true cost of inaction would be paid for generations. The cost of decreased property values. The cost of increased traffic risks to drivers, bicyclists, runners, dog walkers, children getting mail from mailboxes and school buses. The loss of the quiet enjoyment of our homes.
Red Wing Properties' proposed Turkey Hill Road mine would put 22-wheel dump trailers on Milan's small, winding roads every five minutes for 12 years. And it wants to open a similar, massive exporting mine on land it already owns on Academy Hill Road. And it has identified 23 sites totaling 641 acres across the entire town as potential sand and gravel mines.
We have good advice from leading land use lawyers, who say the town has a very strong case for appeal. We hope money will be refunded to citizens when the Greenway Compact provision covering the costs of legal action comes through. E-mail firstname.lastname@example.org for more information. The cost of inaction is too high.
Bill Jeffway, President, Milan Concerns, Milan
Letter to the Editor Poughkeepsie Journal (July30)
Environmental specialists' findings reveal big gaps
Milan Concerns has just released seven environmental reports it commissioned to assess traffic, water, noise, pollution, habitat, archaeology and visual impacts from Red Wing Sand and Gravel’s proposed 69 acre mine on Turkey Hill Road.
You'll find words like, "travesty," "glaring omissions," "unsafe conditions," and "flawed," in reference to Red Wing's application. Here are some excerpts:
assessment finds two "glaring omissions" and says the State should "reconsider the completeness or adequacy of the Red Wing reports."
SEE THE REPORT
"clear noise impacts [would result] to the community where the applicant is stating that there will be none." If done properly, their studies "would be completely different."
SEE THE REPORT
[we've found] "unsafe conditions for the trucks … including insufficient shoulder widths, steep grades and limited corner and stopping sight distances"
SEE THE REPORT
"An emissions inventory was not provided anywhere," and an out-of-date reference document was used which ignores "newly developed scientific information."
SEE THE REPORT
The "…habitat assessment performed by [Red Wing's contractor] is a travesty."
SEE THE REPORT
"…surface and ground water systems have not been properly described or defined." And "extraction activity will be felt by Lake Warakamack.”
SEE THE REPORT
"The whole viewshed analysis is flawed."
SEE THE REPORT
The largest omission of all is the issue of town character and the fact that mining is prohibited in Milan.
Milan residents have determined through two local elections and an open and comprehensive planning process that industrial-scale mining across town is inconsistent with their wishes. This is a major issue for the town as Red Wing has formally submitted maps identifying 23 sites totaling 641 acres across town as having “potential as a sand and gravel mine.”
Mining has always been prohibited at proposed sites.
For a mine to operate, an applicant needs both state approval and local zoning approval. The town's right is paramount, however, through New York's municipal "home rule.” Mining was prohibited at both Red Wing’s proposed Turkey Hill Road and Academy Hill Road sites through local zoning when they bought the parcels in 2002 and 2004 respectively. And mining has been prohibited at those sites ever since.
But Milan went further and adopted a town-wide ban on mining in January 2006, eliminated a zoning mechanism that could have allowed industrial-scale mining in certain places if certain conditions were met. Despite all this, state laws allow the Department of Environmental Conservation (DEC) to continue processing Red Wing’s application. DEC staff went so far as to recommend on July 18, 2007 that a permit be issued for a 69-acre mine Turkey Hill Road that would extract 3 million cubic yards of gravel with 22-wheel dump-trailers going in and out every 5 minutes for 12 to 15 years.
While this was a setback, it was offset by the DEC’s agreement to extend the process into a legislative hearing, issues conference and adjudicatory hearing process that began on August 14. So the DEC town governments and citizens. Red Wing wants an approval from the State as another mechanism to challenge home rule and wear down the town’s will.
The cost of doing nothing is greater
"The cost of letting industrial-scale mines in Milan is much higher than any cost we feel now,” said Milan Concerns’ president Bill Jeffway. “Imagine multiple massive mines exporting gravel to Westchester with trucks every five minutes for 15 years. Then, as in Beekman, Red Wing brings in a developer like New Jersey’s Sharbell Corporation to sprinkle several hundred cookie-cutter homes on the abandoned mine. We
would lose what makes Milan Milan.”
"So first, keep your town laws up to date.
If there is one message I could send to other towns it's this: keep your Comprehensive Plan and zoning up-to-date – reflecting citizens' wishes and prepared for 21st century demands. Otherwise you are throwing away precious home rule rights to deep-pocketed developers. You are handing over the keys to your town. Taxes will skyrocket as town government becomes bigger
and infrastructure requirements grow."
"We had to replace a Comprehensive Plan that was almost 20 years old and very out of line with residents' wishes. It left the town very unprepared for the big developers that are already in town. Red Wing and the Durst Organization own about 900 acres in Milan alone, that we know of."
"Second, we need to change state laws that favor big developers over small town, home rule rights.
We have been working with U.S. Representative Kirsten Gillibrand, Governor Spitzer's office, the NYS DEC, the town of Milan and the preservation group Scenic Hudson to do so."
"We successfully lobbied to get this to an issues conference and adjudicatory hearing. It has taken a lot of work from a lot of citizens and a very active participation from the town of Milan to get these issues looked at in depth.”
"Milan Concerns is applying for 'party status' so we can be an official part of the state process and we hope to get a decision on this soon. If we can’t get the state to stop processing the application, then we want to state to deny the permit based on community character and the town’s home rule rights.”
What residents can do
Milan Concerns is asking residents to continue to lobby both Milan's State Senator Vincent Leibell and State Senator Steven Saland who is the sponsor of Senate bill S448 that would shut down the state's processing of mining applications when towns like ours prohibit it. This bill was passed by the Assembly last session by 98% in favor (bill #A07119). But has been held up in the State Senate since 1995!
In Milan, the town has officially re-adopted its Comprehensive Plan,including the zoning changes that ban mining after a judge threw it out on a procedural technicality in a suit initiated by Red Wing. Throughout the challenge, Milan’s ban on mining remained intact. Other towns that have banned large-scale mining include Saugerties, Pawling, Nassau
and Schoharie. The later two towns, similar to Milan, have the state processing mining applications in the face of their local prohibition on mining.
In the upcoming election, Milan residents need to continue to elect Town Board members who understand the issue and will defend the town’s right to home rule. I will conclude with the language from the "justification" from the bill that has languished in Albany for 12 years that would put an end to the state process:
New York State has a strong tradition of municipal home rule. Particularly in the area of land use control, New York statutes cedes virtually all control to local governments, which are better suited to respond to the needs of its inhabitants with respect to the character of their community. In the area of mining mineral resources, the state should not abrogate this philosophy…
Milan residents are being tested by outside developers. We hope each and every resident stands firm in defending home rule rights. Otherwise, why do we have them?
Background Information on this issue...
"In the second lawsuit, Red Wing claims that only a small number of citizens spoke against the FLI and to Red Wing's proposal for a mine during the public forums on the comprehensive plan."
excerpt from Daily Freeman
Town adopts comp plan, wetlands law
"Because of the mining issue, the county asked for a supermajority for the comprehensive plan vote, which we got," said Supervisor John V. Talmage.
Register Herald ( Aug 24)
Town board revisits FLI elimination law
With one lawsuit from Red Wing Sand and Gravel recently decided and another just begun, the Town of Milan is cautiously making sure to pass every law dealing with mining according to procedure.
"This is a safety precaution," said Supervisor John "Van" Talmage...
Register Herald (June 6)
Public gets more time for input on Milan mine
Traffic, pollution among concerns
Story no longer available on line
Poughkeepsie Journal (May 30)
Milan fine-tuning comprehensive plan
The Town Board expects to have a revised town comprehensive plan ready for adoption later this year, without concern that mining issues will stand in the way.
Daily Freeman (May 27)
The people's will
Even though Red Wing has every right to attempt to sway the public and discuss alternatives with the board, such as a mineral overlay zone, it seems obvious the company is fighting a losing battle.
Numerous lawsuits will not solve an issue of the people's will. Simply put, mining is not allowed and residents couldn't be happier.
Register Herald (May 18)
Milan Residents United In Stand Against Mining Application
With standing-room only, in a meeting that went on for over three hours of residents giving their views -- every single person opposed the Turkey Hill Road mine and industrial-scale mining in general in the town and told the DEC to deny the permit. The only person speaking in support of the mine was the mine owners sister. Not a single resident spoke in favor. Many commented on the fact that the DEC's processing of this application is a waste of state and resident's time, money and resources since the town has banned mining and NY is a home rule state. An outdated law at the DEC says they believe the applicant over the town when zoning is disputed. The town says zoning prohibits mining. The applicant says zoning does not. What sense does it make for DEC to believe a mine applicant and not the town on zoning issues!
Residents jam town hall to protest another Red Wing bid
Register Herald (May 11)
Red Wing files second lawsuit
Register Herald (May 4)
Milan presses to stop mine
Daily Freeman (April 15)