Spirit, or Letter, of the Law?

After one board votes on project, another proposes moratorium      

When the Philipstown Planning Board last month allowed the proposed Hudson Highlands Reserve to clear a major procedural hurdle, it sparked concerns that following the letter of the law subverts the spirit of the law. It also inspired a call for a moratorium on similar development until the town can re-evaluate zoning regulations.

By a 4-2 vote on April 21, the Planning Board signed off on a state-mandated Final Environmental Impact Statement (FEIS), a 167-page discussion of the 24-home complex and its compatibility with the law and the environment. 

Introduced to the Planning Board in 2014, the project involves a 210-acre parcel off Route 9 north of Cold Spring bounded by Horton Road and East Mountain Road North. It is the first conservation subdivision applicant considered by the town after enactment of the 2011 zoning code, which generally tightened land-use rules but now prompts fears that it falls short on regulation of conservation subdivisions — a form of development that in return for protecting nature might have more buildings than a typical suburban housing project could erect. 

“I would highly recommend a moratorium” on conservation subdivisions, said Jan Baker, a Conservation Board member, at its May 10 meeting. “We know the current [code] language is ineffective. It doesn’t achieve the result the town wanted. That sort of cries out for a moratorium.” 

Town Board Member Jason Angell, the liaison to the Conservation Board, said the situation indicates “that if the letter of the law is not living up to the spirit and main intent” for conservation subdivisions, “we should go back and see if it could be tightened.” Angell added that “because this major project set a precedent,” town officials should act “before another large project comes along.”    

The HHR property includes a pond, woods, a circa-1815 barn (slated to become a clubhouse) and other environmental or historic features. The developer, Horton Road LLC, run by architect Ulises Liceaga, initially proposed an equestrian center, but that has been dropped. In addition, according to the FEIS, the project designates 163 acres for conservation “in perpetuity.”

horton-road-map

On this map of the proposed development, the black dots represent homes and the dark green is land that won’t be developed.

Each of the 24 homes would be 2,500 to 3,000 square feet, on a 1-acre lot, accessible by its own driveway off a street or cul-de-sac. 

Over the last eight years, HHR has generated intense interest from neighbors and others who filled public hearings and wrote letters in opposition. Several complained to the Planning Board, after its vote, that HHR “fails to deliver on the intent of a conservation subdivision” as defined in the town code. Moreover, environmental groups, as well as members of the Conservation Board, expressed skepticism. 

The Philipstown code encourages conservation subdivisions, “in which units are clustered or sited on those portions of a property most suitable for development, while leaving substantial portions as undeveloped,” a practice that “results in the preservation of contiguous open space and important environmental resources while allowing compact development, more walkable neighborhoods, and more flexibility than conventional subdivisions.”

The FEIS says that HHR employs “a clustered layout and preserves large areas that currently function as wildlife corridors.” Yet, as mapped, the homes do not appear to be particularly close to one another. The town code does not define clustering and notes that conservation subdivisions may include a variety of lot sizes.

HHR’s proposed layout reflects that of adjacent neighborhoods on Horton Road, Horton Court and Mill Road, the developers argue. But old tax rolls show that at least some of those properties were developed well before the town adopted the current zoning code. 

Using smaller lots or making the homes contiguous or recasting them as townhomes would conflict with Philipstown’s desires to retain a rural character, according to the FEIS. And decreasing the number of houses — even from 24 to 19 — while enlarging lot sizes “will make the project [financially] infeasible,” it states. 

Two Planning Board members who voted against the FEIS, Heidi Wendel and Peter Lewis, cited their reservations about the project’s impact on wildlife, whether it qualifies as a conservation subdivision and concerns that a homeowners’ association could ignore conservation requirements.

“We have no assurances those provisions will actually go into place,” said Wendel. Lewis added: “The homeowners’ association disturbs me. I’d like to see a full-time administrator, who can’t look the other way.” Lewis also said that “I’m sad there’s no public access. It gives me a feeling like it’s a gated community.”

Paper Trail

2018
June —The Hudson Highlands Reserve developer submit a state-mandated Draft Environmental Impact Statement (DEIS) to the Philipstown Planning Board.
December — The draft is revised.

2019
May — The draft is revised again.
May 29 — A “notice of completion” is published for the draft.
June 20 — The Planning Board holds a public hearing.

2021
July 15 — The applicant submits a draft Final Environmental Impact Statement (FEIS), “which responded to all substantive comments on the DEIS, and also memorialized changes made to the subdivision layout by the applicant (including removal of the Equestrian Center component).”
Sept. 15 — AKRF, the town’s planning consultant, and the town engineer give the Planning Board and applicant a set of revisions for the draft FEIS.
Sept. 16 — The Planning Board meets and discusses the draft.
Oct. 5 — AKRF and the town engineer provide a set of revisions to the appendices of the FEIS.
Nov. 9 — The applicant submits a revised draft FEIS.
Nov. 18 — AKRF and the town engineer provide a third set of revisions. The Planning Board meets and discusses the draft.
Nov. 23 — AKRF and the town engineer provide a fourth set of revisions.
Dec. 2 — The applicant submits a revised draft FEIS.
Dec. 16 — AKRF and the town engineer provide a fifth set of revisions. The Planning Board meets and discusses the draft.

2022
March 3 — The applicant submits a revised draft FEIS.
March 11 — AKRF and the town engineer provide a final set of revisions.
April 21 — The Planning Board votes 4-2 to accept the FEIS.
May 5 — The FEIS is filed with the town.

In January, the Conservation Board informed the Planning Board that it believes the developer has “not significantly lessened environmental impacts to the extent practicable” and “is evading the intent” of conservation subdivision regulations.

But Stephen Gaba, the town attorney, told the Planning Board on April 21 that “the project meets town code. There’s no question about that.” He said he understands the concerns about honoring the intent of the law but advised the board that “the clearest manifestation of the intent of the Town Board is the language it used” in the code. If HHR “meets the code as a matter of law, it meets the intent of the town,” he said. 

Richard O’Rourke, Horton Road LLC’s lawyer, similarly emphasized that “the intention of the [zoning] legislation cannot override the clear provisions of the law.”

Consequently, the Planning Board felt it had no choice but to accept the FEIS, said Andy Galler, who chairs the Conservation Board, at its meeting on May 10. He recommended that the Planning and Conservation boards convene to determine what revisions are needed for the “somewhat problematic” code.

Work remains before the developer can break ground. For example, the Town Board must change the zoning on 11 acres of the site from industrial-manufacturing to rural residential, review the road plans and authorize creation of a sewer district. Going forward, the Planning Board will review the site plan and exercise other oversight.

One thought on “Spirit, or Letter, of the Law?

  1. After I watched the Philipstown Planning Board vote to move the Hudson Highlands Reserve project along in the approvals process, I could not help but feel disappointed that they were not better able to protect our community. It seems clear that the applicant has taken advantage and exploited a section of our town code, intended to protect vulnerable land, with little regard to Philipstown’s rural character or goals stated in the comprehensive plan.

    The applicant has taken land that is zoned rural-residential and has used the conservation subdivision section of the code to propose a layout that is hardly rural. Without the conservation subdivision section, the developer would have to build fewer houses on 5-acre lots. The applicant has argued that they are following the zoning code, and are entitled to build 24 houses on 1-acre lots, even though the code states that the number of lots provided “shall not be considered an entitlement.”

    It may be too late to realize the well-meaning intentions of the town code with this applicant, but what about future applicants hoping to do the same? There are many swaths of land in Philipstown that may come up for sale that could be targets of this sort of development. What a precedent the Hudson Highlands Reserve could set: If they all build HHR-type developments, Philipstown would be unrecognizable.

    This points to a weakness in the code itself. I would hope that this portion of the code could be reexamined, modified and amended by the Town Board so that it is consistent with the rural characteristics of our town.