CAC Recommends Approval of Controversial Wetland Permit

By Michael Turton

After years of revised plans and postponements, the Philipstown Conservation Advisory Committee (CAC) recommended at its Oct. 7 meeting that a hotly contested wetlands permit be granted to Robert Jordan. The approval is conditional upon the town wetland inspector ensuring that several other outstanding permits be approved first. The heart of the dispute has been a driveway to be constructed across a Class ll wetland, giving the Jordans access to the portion of their East Mountain Road North property on which they intend to build a family home. In May, the Jordans received a wetland permit required by the New York State Department of Environmental Conservation (DEC); however, neighbors have argued that the DEC permit should not have been issued and have pleaded with the CAC to deny the wetland permit required by the town. That local permit is issued by Philipstown’s wetland inspector, Dave Klotzle, upon recommendation of the CAC.
       The approvals that the Jordans must still be granted before beginning construction include a stream disturbance permit and a storm-water permit from DEC as well as a federal wetlands permit. Klotzle must also be satisfied that the project meets requirements of the State Environmental Quality Review Act (SEQRA).
       At the meeting, David Clouser, a professional engineer hired by several of Jordan’s neighbors opposed to the construction of the driveway, argued that the CAC could not recommend issuing the wetlands permit until the other outstanding permits have actually been approved. Updated plans had recently been submitted by the Jordans. The CAC ruled that it could recommend approval — conditional upon the other permits being granted. The vote was taken only after impassioned statements were heard from both sides of the conflict and after those plans were reviewed by the CAC and deemed acceptable by Ron Gainer, an engineer working on behalf of the town.
       One of the first to address the CAC was Alice Krakauer, a neighbor. “For Mr. Jordan, this is about building on his property. For me, it’s about Mr. Jordan building in a wetland that’s as much on my property as it is on his. But I don’t get a say it in. I can’t protect the rare shrub bog on my own property, or its billion inhabitants. And that hurts,” Krakauer said. The bog Kralkauer referred to lies just downstream of the Jordans’ portion of the wetland and is considered rare in Putnam County.
       Neighbors have argued that Jordan was aware that he did not have the required wetland permit when he bought the property in 2005. “If you approve Mr. Jordan’s permit, you will give future applicants justification to expect a wetland permit no matter what they knew in advance. Stop the vicious circle. Step up. With courage say `no,'” Krakauer pleaded. Later, she said that the project amounted to “”¦putting lipstick on a pig. It (the driveway) puts 7,000 square feet of junk in a wetland.”
       Another neighbor, Paulette Schneider, took a different approach. “Help the permit applicant gain access to his lot by means of an existing driveway,” Schneider said. She was referring to the driveway on an adjacent property which could give the Jordans access to their property, eliminating the need for a second driveway across the wetland if an agreement could be worked out with between Jordan and the existing driveway’s owner. Schneider asked Interim Chair Eric Lind if the CAC was ignoring “the best way for them (the Jordans) to get onto their property”¦?” Lind responded that the Jordans could not be forced to use the adjacent driveway. When CAC member M.J. Martin commented that neighbors could help make that happen, Steve Loria, another neighbor who opposed the application, said that “the neighbors have gone down that path — and gotten nothing back.”
       After his neighbors had spoken, Robert Jordan addressed the CAC. “The bottom line is that we have met all requirements. We’ve gone above and beyond to ensure the least impact. This is about us accessing our property,” he said. Jordan said that he had spoken with the adjacent property owners about using their existing driveway but that their response was: “We’d like to help you out, but no”¦ it’s our property.”  He also said that he was approached by Loria about the possibility of a group of neighbors buying him out but that they were unwilling to pay fair market value for his property. “Don’t expect me to lose money,” Jordan said. “We think it’s time we built our home.”
       The Jordans’ project has clearly caused the CAC considerable discomfort. Lind commented on the committee’s role in dealing with what has been a very stormy wetland permit application — one that has not only pitted neighbors against each other but has put a spotlight on property owners’ rights and hard-to-justify planning decisions made decades ago. There has been widespread agreement that building lots such as the Jordans’ that include narrow strips of land, or “flag poles” that cross significant wetlands in order to provide access to buildable higher ground, would never be approved today. “We’re trying to make the best of a bad situation,” Lind said. “My feeling is that we are sometimes perceived to have a greater role than we do. It is pretty much confined to what is in the Town Code.”
       Klotzle referred to the Town Code in stating that the role of the CAC is to “ensure that the benefits of wetlands not be lost”¦but the intent is not to prevent property owners from using their land.” After he commented that the wetland in question was “not pristine by any means” someone in the audience asked if the proposed project would further degrade the wetland. Klotzle’s reply was a simple “Yes.” 
       In the end however the CAC was convinced that the Jordans application would minimize impact on the wetland, protecting it “to the extent that is reasonably practicable.” When the vote was finally taken, the resolution to support recommending approval of the permit passed unanimously. Lind said that the CAC’s recommendation to issue the wetland permit “”¦does not exempt the Jordans from meeting all other (permit) requirements,” which now include approval of a storm-water permit — a regulation that came into effect only two years ago.
       The CAC did add new stipulations to the project — including requiring the use of recycled material in constructing the driveway and requiring that it be completely finished before construction of the house could begin in order to reduce environmental impact. Jordan will also be required to establish an escrow account to cover the cost of project monitoring, which will be conducted by Klotzle and Gainer.