By Michael Turton
Robert and Karyn Jordan want to build a house and they own property on which to build it. That may be the only simple chapter in this story. The Jordans find themselves in the middle of a complicated situation involving the rights of individuals to develop their property; the rights of neighbors whose property may be adversely affected; the importance of wetlands and the extent to which laws should protect them; conflicting engineering studies; and how government should make decisions that attempt to balance individual rights, neighbor concerns, and the community interest.
The complications center on the nature of the Jordan’s property on East Mountain Road North in Philipstown. Their lot includes land suitable to build on. However, the only way to gain access to that portion of the property is by constructing a driveway through a 69 acre wetland that the New York State Department of Environmental Conservation (DEC) ranks as Class II – the second most significant of the four wetland classifications and thus subject to stringent environmental controls. As a result the Jordans were required to get a permit from DEC. That permit was granted in May of this year, largely because the proposed driveway was identified as the only means by which the Jordans could gain access to the buildable portion of their lot. The Jordan’s permit application was supported by an engineer’s report.
Several of the Jordan’s neighbors had objected to the driveway when development of the lot was first proposed to Philpstown’s Conservation Advisory Council (CAC) in 2006. They were upset to learn that DEC had granted a permit this spring. In an article published in the Putnam County News and Recorder Alice Krakauer, who owns property just downstream of the Jordans, was quoted as stating at the June 8 meeting of the CAC, ” I don’t think we’d be having this discussion if the NY State DEC Wetlands Regulations had any teeth,” she said. “If they did, a DEC permit for Mr. Jordan’s project would never have been issued.”
In a July 27, 2010 letter to the Philipstown Town Board, Steven Loria, one of the Jordans’ neighbors objecting to the driveway, stated that the “the applicant (the Jordans) knew that he didn’t have the necessary permits for the crossing, yet he purchased the property, taking a risk that many other buyers may not take. By doing so, it’s apparent that the applicant did not have clear expectations that he would have been able to develop the property.” That view was supported by Rodney Dow, a former member of the CAC, at an earlier meeting of the Philipstown board. Dow said that he had spoken to Mr. Jordan before he purchased the property and outlined what was involved in applying for a wetland permit. While they have received a permit from DEC, the Jordans also need a permit from the CAC, which will likely take up the matter again at its Sept. 21, 2010 meeting.
Loria and other neighbors recently hired the engineering firm of David Clouser & Associates to review the Jordan’s DEC application. Clouser’s report found the Jordan’s DEC application to be lacking in a number of areas. In his letter to the Philipstown Town Board Loria stated that, “This review (by Clouser and Associates) revealed significant discrepancies in the plans and reports referenced in the NYSDEC Wetlands Disturbance Permit submitted by the applicant”¦supporting documents were incomplete, inconsistent, and inaccurate, and the record information is outdated”¦these discrepancies are significant”¦they factually misrepresent the relative magnitude of the proposed driveway and “¦the disturbance that will result if the wetland driveway crossing is constructed in compliance with the NYSDEC permit conditions and criteria.”
This is not the first time that neighbors have used consultants to examine the proposed project. In 2007 Hudsonia produced a report which assessed the impact of the Jordan’s proposed project on a bog just downstream. Hudsonia is described on its website as “A non-advocacy organization (that) serves as a neutral voice in the challenging process of land use decision making.” That report stated, “The bog may be especially sensitive to alterations in the quantity or quality of inflowing water. Construction of a new driveway “¦and a house nearby will contribute to forest fragmentation, and is likely to cause siltation of the wetland and stream, flashier stream flows, reduced groundwater recharge, and pollution of the stream and wetland with road and lawn chemicals. The cumulative effects of this and other such projects in the watershed”¦could harm the very unusual bog community, could accelerate the decomposition of peat deposits, and could render the wetland a source instead of a sink for atmospheric carbon—a major contributor to global warming.”
The Jordans were invited to speak directly to Philipstown.info, and opted to submit the following statement by email: “We are a family that purchased property to build on with a pre-existing Board of Health permit, and as law-abiding citizens, we have proceeded to fulfill the necessary obligations to do so. We have complied completely with all the requirements necessary and look forward to the opportunity to go forward with our right to use our property.”
Interim CAC Chair Eric Lind also e-mailed Philipstown.info to comment on the project and what the CAC will require before issuing the local permit, “”¦ essentially we are looking for assurances that the existing hydrology of the wetland is maintained and for adequate mitigation for the driveway crossing. Another important element is the addition and monitoring of sediment and erosion control or other protective measures during construction. Often, the seasonal timing of the work is important, as well as the materials used for construction of the driveway leading to a single family dwelling. All of this comes, of course, after exploring other access possibilities that may have less impact on regulated areas.”
The “other possibilities” alluded to by Lind could include the Jordans’ use of an existing driveway on an adjacent property to access their lot, a move that would eliminate the need to construct the new driveway through the wetland. While that option has been mentioned at previous CAC and town board meetings it has not been formally proposed. The root cause of the current conflict can be traced to the 1970’s when a number of “flag-shaped” lots were created off of East Mountain Road North. The lots contain a narrow strip of land that runs from the road through the wetland to the higher, buildable ground. While the wisdom of that zoning is now questioned, it remains the law.
In describing the value of wetlands the US Environmental Protection Agency website states, “Wetland ecosystems”¦deliver a wide range of valuable “¦services that contribute to human well-being. They provide safe water supply, fish and fiber, wildlife habitat, flood regulation and recreation, among many other benefits.” The wetland in question is part of the Cove Creek watershed. The Clove Creek aquifer has been called one of the purest in New York State.