a few things the Gazette forgot to mention

GazetteFrontPage03Aug2014

very nice press, if you can get it

    Rush Street Gaming [RSG] got a lot of free public relations puffery on the front page of yesterday’s Sunday Gazette. See “Schenectady Casino Group Praised“, August 3, 2014, by Haley Viccaro; subscription required to view online) Haley’s article is filled with quotes from local development and business officials and Rush Street Gaming’s CEO Greg Carlin, without a word from their detractors, such as Casino-Free Philadelphia, or the Worchester MA citizens group  that was successful in keeping RSG out of their city, nor even from the Stop the Schenectady Casino group.  Perhaps the article is the Gazette‘s penance and mea culpa to Casino proponents for an earlier article titled “Officials in other cities warn of pitfalls, failed promises by Rush Street“? (June 8, 2014, by Bethany Bump).

Rather than let all the lily-gilding go unanswered, I left a lengthy, red-eye Comment at the Gazette website around 1 A.M. Sunday, which I am reproducing here, minus typos, plus minor supplementation and citations.

comments

dagiacalone says (August 3, 2014, 150 a.m.) …

It sounds as if the Gazette has only talked to casino boosters — Chamber of Commerce, Economic Development staffers, and the like — who sound like Schenectady’s development professionals, with not a bad word to be said about any development. What do casino opponents and advocates for the poor say?
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Here are a few things your readers should know about SugarHouse in Philadelphia.

(1) Rush Street Gaming [RSG] had scaled down its casino in Philadelphia in response to community concerns about its size, but only four years after opening, it has broken ground on an “addition” that is much larger (at 152,000 sq ft.) than the original casino’s 108,000 sq. ft., with its CEO saying “we’ve waited a long time to do this.” (see philly.com article)
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(2) RSG’s CEO Carlin brags that the folks at SugarHouse encourage their customers to stay at surrounding hotels. Of course it does: SugarHouse has no hotel of its own and must help customers find suitable lodging nearby.
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(3)  As to crime near SugarHouse, Alan Greenberger, Philadephia’s Deputy Mayor for Economic Development, is quoted saying “The immediate area actually got safer now that the casino is here.” and the article states that “Rush has disputed claims the casino would negatively impact the city with an increase in crime.” RSG forgets to mention (as does the Gazette) that Philadelphia PD has created a 14-man unit that solely patrols a one-half mile radius from the casino (which does not include the rear of the casino, because it is on a river). A patrol that size would cost over $1 million annually in total compensation in Schenectady. The special casino unit in Philadelphia surely accounts for all or most of any drop in crime.  Unfortunately, however, there has been “displacement” and the area just past that half-mile radius (analogous to our Stockade neighborhood and Union College’s College Park area) has seen very large increases in vehicle theft and vehicle break-ins.

For discussion of the recent study of crime near SugarHouse since its opening in 2010, which describes the dedicated police patrol and crime displacement to close neighborhoods, see our posting “did crime go up around the SugarHouse casino?”.
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That study also says that ““Violent street felonies increased in the target area compared with the control area.” The authors of the report say the increase was not significant, but it clearly undermines any claim that the area “got safer”. [Id.]
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(4) At SugarHouse, RSG has specifically targeted young gamblers by creating a less-complicated form of craps, called “Props & Hops.” [see Sugarhouse Develops a New, Simplified Craps Game For Younger Players“, CBS6, May 2, 1014; SugarHouse Props & Hops Brochure] It has also recently added a large number of poker tables. They plan to have 12 poker tables in Schenectady, at a casino only a block from a major undergraduate Union College dorm, and a few blocks from Union’s campus of poker fanatics. We can surely expect a lot of promotions aimed at Union students who are 21 years old or about to be.
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Finally (for now), RSG claims in its Application that there will be no increase in the prevalence of problem gambling in Schenectady, because our residents can already go to Racino in Saratoga, or to Foxwoods in Connecticut, or Atlantic City. Apparently, no one on the Applicant’s team has read the many reports showing that gamblers go to casinos a lot more often when there is one conveniently nearby. In fact, studies show that the number of problem gamblers doubles in the area within ten miles of a new casino.  [See, e.g.,  The Impacts of Gambling on Local Citizens ; 2)”Why Casinos Matter: Thirty-One Evidence-Based Propositions from the Health and Social Sciences” (A Report from the Council on Casinos, Institute for American Values, 2013), especially at 18.]
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What other claims has Rush Street Gaming been making that have no basis in fact?
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Find more about Schenectady’s casino at stoptheschenectadycasino.com [now known as Snowmen at the Gates.

I know Haley Vicarro is a good investigative reporter.  Let’s hope her bosses let her do a sequel to Sunday’s puff-piece on Rush Street Gaming that doesn’t sound like it was penned by RSG’s public relations department.

follow-up (Aug. 14, 2014): How do customers of one of RSG’s urban casinos feel about their experiences? Take a look at Google Customer Reviews of SugarHouse Casino in Philadelphia (see Google’s column on the right side of the page).

arts venues want more than a fair game

SlicingThePie It’s been twenty-five years since I practiced antitrust law at the Federal Trade Commission in Washington, D.C.  But, it’s still a good bet that when a bunch of major competitors get together and start throwing the word “fair” around, they are hoping to limit competitive pressure on themselves by placing restrictions on market forces that are helping to give consumers more choices and lower prices.  It seems to me that is what is happening with the Fair Game campaign that the UpState Theater Coalition for a Fair Game has turned into “joint negotiations” with casino owners.

follow-up (March 8, 2017): An article in today’s Schenectady Daily Gazette, “Rivers Casino, Proctors team up for entertainment: ‘In no way, shape or form do I feel like we’re competitors” (by Brett Samuels, A1, March 8, 2017), suggests that my fears expressed below and in a subsequent post were warranted. See “a wicked concert cartel?” (March 8, 2017).

It was one thing — and probably a useful thing — for the major arts venues across Upstate New York to lobby the legislature and the Gaming Commission last year. They were successful inserting into the casino application process the requirement that applicants take into account the needs of local arts and entertainment venues, and attempt to enter into partnerships that would help assure the casino does not take away so much business or garner so many big acts that they cause grievous injury to important local entertainment venues.  It is quite another for the Fair Game folks to morph into a joint negotiation team with a long litany of restrictions and financial obligations they hope to impose on all casino operators.  They are now using the tight deadlines of the application process as a club to strengthen their powers of “persuasion”.

trustbuster Teddy Roosevelt

trust-buster

Antitrust law frowns on the use of collective action or coercion by competitors to impose their will on others and to keep the group of competitors marching to a single beat.  That’s why I wrote yesterday to the N.Y. State Attorney General asking that the Antitrust Bureau look into the lawfulness of the activities of the Fair Game group, which includes 13 major arts venues located across Upstate New York, including the five major theaters and entertainment centers in the Capital Region (Proctor’s in Schenectady, whose CEO Philip Morris is chairing the group.; SPAC and Saratoga City Center; and the Palace and Times Union Center in Albany), plus organizations in nearby Bethel, Kingston, Binghampton and Utica.

If Schenectady is saddled with a casino and its operators have greatly limited their ability to compete with the biggest arts venues, the average resident of our City and County will lose (at least) twice: saddled both with the casino and with fewer choices and higher prices likely at Proctor’s and at the other large entertainment centers in Albany, Saratoga, the Region and beyond.  Here is the explanation that I wrote on June 27 in my Complaint to the Attorney General (slightly edited for clarity):

   Fair Game is taking advantage of the Casino Siting process, which includes criteria concerning the formation of partnerships with affected local entertainment venues.  Fair Game is using collective action among the largest theater venues in the State to pressure casino applicants — who are major potential competitors with such entertainment venues — into accepting a stringent, uniform set of restrictions and financial obligations in order to demonstrate Local Support in the Application process.  That pressure is greatly magnified by the very tight and imminent deadlines for all Applicants. 

    As seen in news articles such as the one that appeared in today’s Schenectady Gazette, Fair Game members not only seek to eliminate competition with casinos for top talent and productions, but also have agreed among themselves to a formula for dividing the revenues received from casinos. See Coalition asking for a piece of casinos’ actionby Haley Viccaro (June 27, 2014, at A6; see also “Coalition, casinos yet to sign deals”, at A1)

     This appears to go far beyond any possible State Action defense under legislation establishing the casino licensing process for restricting competition among themselves and with casinos.  The major entertainment venues are encouraged under the Act to enter into partnerships with “local casinos”, they are not given the freedom to eliminate competition among themselves, nor to prevent competition from all casinos within a large (seemingly unlimited) region.

    For example, in explaining the concept of Partnerships with Live Entertainment Venues, the Request for Applications for Gaming Facilities [RFA] seeks “copies of any and all contracts, agreements, MOUs or other understandings with live entertainment venues that may be impacted by the Gaming Facility.” (at 60). Also, in their applications, each applicant must include, in Ex. IX.B.2, copies of “agreements with impacted entertainment venues” and any declined agreements.  (RFA at 74-75)  One omnibus agreement with a coalition of venues is clearly not anticipated (nor, separate agreements which merely take collective terms and apply them in a separate contract with each venue).

    At its website, Fair Game brags about its “collective impact” in ticket receipts, jobs created, moneys invested, etc.  Major theaters such as Proctors and SPAC and the Times Union Center already have ticket prices for major acts and productions that are far out of reach of large percentages of residents of our region.   By acting jointly, they are likely to increase their ability to raise prices, not only by eliminating future competition from casinos, but also competition within the siting application process with eachother to form advantageous partnerships with local casinos.  (The ability of the East Greenbush applicant to achieve agreements separately with local venues shows that a joint bargaining team of theaters is not needed.)

    The partnerships envisioned under The Upstate New York Gaming Economic Development Act (Chapters 174 and 175 of the Laws of 2013), appear to favor the largest theaters, further disadvantaging the small and “mom-and-pop” venues and businesses that are likely to see the disposable income of many customers spent instead at a local casino.

    For the past couple of weeks, Philip Morris has gone public with his pressure for applicants to accept the collective terms of the Fair Game members.  Clearly, Fair Game hopes to use the looming June 30 application deadline to pressure-coerce casinos to sign onto their scheme.   I hope the Attorney General will make some sort of statement today cautioning Fair Game from attempting to wield such undue coercive power.

  Thank you for considering this last-minute appeal for action.

 Jim Odato covered my AG Complaint yesterday at the Times Union” at the Capital Confidential weblog, Anti-casino lawyer complains to AG about arts groups and antitrust(Capitol Confidential, June 27, 2014), and a related TU article.  The article ends:

“Morris said he would await word from Schneiderman before commenting, although he said he did not get legal advice before pursuing the agreements with casino teams on behalf of his coalition of entertainment entities.”

The Gazette carried an article by Haley Viccaro this morning, “Schenectady casino foe says Fair Game pact would be illegal” (June 28, 2014, C3).

NYg update: State Action: See our posting  “10 of 17 casino applicants accept Fair Game’s-terms“, reacting to “Entertainment coalition nets majority of casino bidders“, The Times Union Capitol Confidential Blog, by James M. Odato, July 1, 2014. The posting contains an analysis of the application of the State Action Doctrine to the actions of the FairGame coalition: that is, whether any action by the State or the Racing Commission has given the Coalition immunity from the charge that their collective negotiation violates the antitrust laws.

Even if Fair Game does not hammer out agreements with the casinos before submission of their complete applications on Monday, June 30, the groups may continue in July to pressure casinos who want to strengthen their demonstration of support by the local arts and entertainment venues.   An admonition or cautionary statement from the Attorney General might lessen that pressure.

Yesterday afternoon, I also sent the following email message to a Gaming Commission spokesman. It concerns a Statement made in October 2013 about Fair Game that some may suggest blesses the collective negotiations by the theater group:

Continue reading

Schenectady County ignores its voters and Plain English

smallquestionmark  What is going on at the County Building? Why are the leaders and legislators so willing to become cheerleaders for the casino, and to ignore the will of their voters, which was expressed only 7 months ago, rejecting casinos in Upstate New York? And, why are they unable to see the plain English wording in the Gaming Facility Siting Board’s Request for Applications, which makes it clear that the County is not a “Host Municipality” and cannot provide the required local legislative resolution of support for the proposed casino?

First, the Election Results: In his posting “Schenectady casino vote 2013,” blogger and Stockadian Tom Hodgkins crunches the results from the November 2013 vote on the constitutional proposition permitting gaming casinos, and comes to a conclusion as to its meaning.

Here is a summary of the vote in each municipality: abacus

  • NISKAYUNA: Every single one of their 20 election districts voted against the casino. The no vote overwhelmed the pro-gamblers by 25.7%: with 61.0% No to 35.4% Yes, and an undervote on Proposal One of 3.6% (those not answering the question)
  • GLENVILLE: The people opposed to new casinos garnered 55.3% of the votes on Proposal One, while the Yes votes received 39.6% (a 15.7% margin). Even more decisively, 25 of the 27 or 92.6% election districts voted against the casino
  • DUANESBURG:  4/5ths of the election districts in Duanesburg were conclusive, and on the whole 54.4% of the people voted against the casinos, and 42.1% voted No. This was a margin of decisiveness of 13.3%, while the under vote was only 4.5% of the electorate.
  • PRINCETOWN: Both of their election districts voted against a new casino in the Capital District, and the margin of decisiveness was 14.1%, with 53.7% voting No and 39.5% voting Yes; the undervote was 6.8%.
  • ROTTERDAM: In aggregate, people who supported increased gambling won by 6.7%, but the undecided or the under vote was 7.6%. . . On the whole, the only conclusion we can draw is that the vote in Rotterdam is suggestive of moderate support for a new casino.
  • CITY of SCHENECTADY:  The City has the most muddled results of all the municipalities in the County. Only 7,723 voters or 25.8% of the electorate turned out to vote; . . .  Election district under votes ranged from 3.7% to 48.3%, and accordingly the certainty of a decisive vote in an election district could only be determined in 22/42 districts. As a City, people who supported a new casinos upstate won by 2.3%, but the under vote was 10.3%. People living around Schenectady High School and in the Stockade were conclusively against more casinos upstate, while people in Mount Pleasant and Belleview supported new casinos.

Here is Tom’s rather reasonable conclusion:

What we can say with certainty is that the majority of the people that would be most impacted by a new casino in downtown Schenectady expressed clear opposition to more gambling for their families and communities. People opposed to more gambling were 50.6% of the vote in the county, while the people supporting more gambling opportunities for their children lost by a margin of 7.9%. The under vote was 6.6%, so the countywide decision against additional casinos was conclusive. Additionally, 72 of the 120 election districts or 60% voted against more gambling for their families and communities.  The people have spoken, and the answer is no casino.

Of the 30,083 people in Schenectady County who voted on Proposal One last November, 16,316 said No: 54.2%There was a 6.6% undervote on that question (ballots on which no choice was made). When the undervote is added into the total, 50.2% of those who went to the polls said No and 42.7% said Yes.  About 7.5% more of the County’s voters said No to casinos than said Yes. 

 That’s a significant spread, but apparently not significant enough for any of the County legislators to even bring up the subject during casino discussions.

Second, how can the folks in the County Building and at Metroplex make the silly argument that they can give the Schenectady Casino the necessary local legislative support, because they are also a Host Municipality?   I know Gary Hughes and Ray Gillen can read.  Did they bother to peruse the relevant portion of the Request for Applications for Gaming Facilities [RFA], or just ignore it and engage in wishful thinking?   Had they peeked into the RFA or asked a staffer to do so, they would have discovered that the definition of Host Municipality (p. 9) is:

“each town, village or city in the territorial boundaries of which the Project Site described in an Application is located.” (emphasis added)   

And, if that wasn’t enough to quash the itch to approve a casino, the section on Initial Requirement of Local Support is even more explicit (at 7):

For purposes of this requirement, the Host Municipality of a Project Site located in a city is the city. The Host Municipality of a Project Site located in a town, outside a village is the town.  The Host Municipality of a Project Site in a village is the village and the town in which the Project Site is located.” (emphasis added)

Here, there is only one Host Municipality, the City of Schenectady.  The County Legislature cannot void a negative vote by the real Host Municipality by substituting its own vote. The municipal legislature closest to the affected people and businesses is given the task.

Maybe the County Legislature is going out of its way like this to register a meaningless vote to show their electorate just who is boss.  I hope that the specter of the County overriding a negative vote by the City Council did not weaken the resolve this weekend of undecided Council Members to stick to their principals.  With the rumor that the County Legislators are virtually unanimous on approving the casino, a No vote by the City Council could seem merely symbolic and quixotic, and certainly not worth the punishment that would surely come from the Democratic Party and the Mayor.

checkedboxs Like any other nearby government or interested organization, the County Legislature is free to voice its support of the ALCO casino.  But, it cannot override a negative vote by Schenectady’s City Council.  So, it will be interesting to see if any Legislator raises either the November 23 vote or the plain meaning of Host Municipality at their Meeting.

the problem with urban casinos

checkedboxsINTRODUCTION to This Website:  This website will soon have information, materials, and links to documents and articles, that are relevant to efforts to keep a casino from being sited at the location of the old ALCO plant, on Erie Boulevard near Freeman’s Bridge, along the Mohawk River, in Schenectady, New York.  We believe that urban casinos bring more problems than benefits.  See Reference Materials below.

As I wrote in “Don’t accept rosy predictions for downtown casino“, a Letter to the Editor in the Schenectady Daily Gazette of May 13, 2014:

CasinoRosyDAG

Urban casinos are risky endeavors, requiring serious analysis. The New York State Gaming Task Force Report to the governor (1996), which favored upstate casinos, said: 1) Stand-alone casinos draw far fewer people from outside the area than a resort-style casino, meaning relatively few overnight stays and a 150-mile market area impacted by nearby casinos; and 2) Most regular casino customers come from within a 25-mile radius, making the casino simply part of the local leisure marketplace (draining dollars from others offering entertainment, dining, sports, and other leisure activities of all kinds).

SharkGF The report also warned of potential crime problems at and near urban casinos, including “prostitution, panhandling, pick-pocketing and purse snatching”; economic crimes by pathological gamblers; and vehicle-related crimes like DUI and automobile break-ins. Such crime is especially worrisome for the nearby Stockade, which was granted historic district protection specifically to preserve its residential characteristics. Street crime and constant drive-through traffic will hurt quality of life in the Stockade, where 55.6 percent of voters said “no” last November to any upstate casinos.

update: What About SugarHouse in Philadelphia? A study that came out in July 2014 purported to show that there was no significant increase in crime in the neighborhood of the SugarHouse Casino since its opening in 2010.  We think that claim is misleading. See our response in  .

The Applicant for a license to operate the casino in Schenectady is a team consisting of a local  construction and development company, the Galesi Group, and an experienced casino developer and manager from Chicago, Rush Street Gaming, which is critiqued negatively here, by a Worcester Citizens Group.

StopCasinoPet  Petition: Go to our posting “Petition to Stop the Schenectady Casino” to see the text of our Petition, for a link to a printable version of the Petition, and for instructions on returning Petitions to us this week. Please excuse our haste, but we want to present the Petitions to the Schenectady City Council as soon as possible, as they must vote on a proposed resolution to approve the casino no later than June 30, 2014.

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– feel free to download and use our NO ALCO CASINO logos (photos by David Giacalone) –

REFERENCE MATERIALS  (more to come)

  •  No Downtown Casino: an informative website created by citizens fighting (successfully) to stop a casino from being built in Hamilton, Ontario, Canada. The group was not against all casinos, but felt there were locations far preferable than their Downtown . A Position Statement explains their opposition to a downtown casino.  Here are a few important paragraphs:

 

Our focus.

NO! Downtown Hamilton Casino is a group of Hamiltonians that, as a result of doing an extensive review of the available research, is opposed to building a casino in our downtown.The research shows clearly that the closer you are to a casino, and the easier it is to get to, the greater the social costs to all citizens and the greater the negative financial impact on nearby businesses and property values.

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Higher social costs for citizens – the bad numbers go up.

Studies show that proximity to a casino doubles the levels of problem gambling, which in turn results in increased spousal abuse, depression, child developmental issues, personal debt, addiction and cross-dependency, personal bankruptcies, attempted suicides, suicides, social service costs. We know that problem gambling has a profound impact on a gambler’s friends and families, which substantially increases the number of people affected by problem gambling. Individuals living in disadvantaged neighbourhoods, some of whom would be within walking distance of a casino in downtown Hamilton, have a 90% increase in the odds of becoming problem gamblers.

Greater negative financial impact on nearby businesses – the good numbers go down.

Studies show that property values near a casino decrease by 10% or more once the casino opens. Part of the reason for that is because the casino never closes. It operates 24/7. Commercial buildings, apartment buildings, condominiums, etc. decrease in value which means over time they pay lower property taxes. Research also shows that 60% of businesses that existed before the casino opens, go out of business within 2 years of the casino opening. Lost jobs. Lost taxes. Failed entrepreneurs. Empty storefronts.

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– there are several dozen instructive and often entertaining posters at NoDowntownCasino.coz

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  • The Durand Neighborhood Association also fought to stop the proposed downtown casino in Hamilton, Ontario.  Their campaign was strong, articulate, and well-researched.  The neighborhood has many heritage sites and beautiful architecture and would have been within walking distance of the proposed casino.  (In contrast, our Stockade Association has refused to even call a meeting about the casino proposed for the ALCO site, which is several blocks from the residential historic district the Stockade Association was created to protect and preserve, and to represent before government bodies.) The Hamilton casino question was on the ballot in last year’s City election and opponents won by almost a two-to-one margin.  As part of its comprehensive website, DurandNA has a busy weblog, where you can find quite a bit of information under the tag “casino.”  See http://www.durandna.com/tags/casino/

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SharkGF “Based on his experiences as a representative and resident of southern Connecticut, home of two of the earliest and largest casinos in the country, Steele cautioned that those expectations are considerably less beneficial than the outlooks presented by the various developers and operators vying for a chance to open similar casinos in Albany, East Greenbush, Rensselaer, or Schenectady. Steele described casinos as a predatory industry that depends on problem gamblers for its huge revenues, and that its effects cause a range of social ills, from pathological gambling addiction to bankruptcies among local businesses and increases in crime.”

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Layout 1 . . . logo used in the campaign to stop a proposed Foxwoods Casino in Milford, Mass.

At EducateHopkinton.com you will find information used in a successful campaign to defeat a proposed casino in Milford, MA.  On Nov. 19, 2013, the casino was voted down by almost a 2 to-1 margin, with 57% of the electorate participating.

  • You have to envy cities and towns with organized, active, well-educated and researched campaigns by residents to stop casinos. Perhaps this is because the electorate gets to vote on a specific proposal, in contrast to our New York siting system, where developer-applicants need to merely woo a handful of politicians, and a few “neighborhood leaders” and businessmen hoping to partner with the resulting casino.  Sketchy proposals are then announced to the public, with a very short period available in which to somehow convert the already-convinced local legislative body. For a look at the application and selection process, see the current RFA for Gaming Facilities for choosing among applicants for several upstate New York casino licenses.

more over-trimming by National Grid

  An article in today’s Schenectady Gazette discusses the issues raised by National Grid’s aggressive trimming of trees in the Stockade and Union Triangle neighborhoods the past two weeks. See “Residents upset after trees trimmed,” by Kathleen Moore, B3, January 18, 2013, online by subscription).  This is, of course, not a new issue, and Stockade residents have complained about the ugly over-amputation of tree limbs and topping of trees, and the resulting loss of shade and beauty, for many years.  The “trimming” is done, of course, in an attempt to prevent power outages and other damage from falling limbs.

In the Gazette piece, National Grid forester Michael Freed is quoted saying he could not cut back trees any less, and that they often trim less than the company’s guidelines, which are to cut back 10 feet away from the primary wire and 18 inches from secondary wires.  They often leave behind lopsided trees, and National Grid spokesman Patrick Stella suggests that homeowners could request that their trees be “rounded out” after safety cuts are made.  Gillespie St. resident Jackie Craven complained about the over-cutting of flowering pear trees on her street.  ReTree Schenectady, which planted those trees, now attempts to put shorter trees under power lines.

Earlier this week, I wrote to the Stockade neighborhood Yahoo email list, complaining about the over-trimming that occurred again last week, when a Lewis Tree Service crew came through the Stockade on behalf of National Grid.  As an example, I gave the treatment of a healthy tree in front of 101 Front St., behind the statue of Lawrence the Indian; see the image at the head of this posting.  The following collage was attached to my email message, comparing that tree on the day when Lawrence was removed for cleaning last May with its current sad state (L):

tree in front of 101 Front St.  - Schenectady NY Stockade - comparison after being trimmed by National Grid

– 101 Front St. –  comparison before and after trimming –

– click on an image for a larger version –

The damage from the amputations will be even more apparent when the leaves return this Spring.  Imagine, for example, the view behind Lawrence with all the leaves above his biceps gone.

I understand that trimming is required for safety reasons, but our trees are too valuable to be treated with so little care.  The City of Schenectady needs to let National Grid know that the company must be far more discerning when trimming our trees.  Unfortunately, the City does not seem to appreciate the importance of trees to our cityscape and ecology.  You may recall, for instance, that this weblog — which was originally named “Preserve Our Stockade Trees” — was created in April 2010 to fight the City’s plan to cut down all the mature trees on Washington Avenue when it repaved the road and replaced sidewalks.  See our first posting.  When we protested that foolish plan, the City purportedly decided to punish the Stockade by not repaving. [follow-up (May 19, 2014): more than four years later, there has been no repaving.]

– 101 Front St.: autumn colors during the 2010 Stockade-athon –

One possible solution to this problem is contained in a bill proposed again this year in the New York Assembly by District 92 Assemblyman, Thomas J. Abinanti. Assembly Bill A02300 would add an Article 3 to the NYS Public Service Code in order to regulate the cutting, topping and removal of trees upon rights of way by providers of electric service, setting up a commission that would make and enforce regulations meant to assure that tree maintenance is done in a manner that has a less destructive impact on our trees.

In addition to requiring that a State arborist certify the need for trimming or removal of a tree, and requiring notice to a municipality and homeowners, the Bill states that:

  • “An electric corporation or municipality may prune a tree within a right of way only when an arborist,  designated  by  the  department  of agriculture  and  markets,  certifies  that  the  part of the tree to be pruned is dead, diseased, a broken branch, resting against a service  or distribution  line,  or  poses or could reasonably be expected to pose a danger to a service or distribution line.
  • “No electric  corporation  or  municipality  shall  engage  in  the topping  of  a  tree in a right of way so as to remove more than twenty-five percent of the foliage within an annual growing season.”
  • An electric corporation or municipality may  remove  a tree  from  a  right  of  way  only  when [a designated arborist] . . . certifies that  the  tree  to  be removed  is  dead,  diseased, broken, that its branches are so entangled with a service or distribution line that pruning  cannot  be  reasonably expected  to  prevent interference with such line, its trunk is touching such a line, or otherwise poses a danger to a  service  or  distribution line if not removed.”

Mr. Abinanti needs co-sponsors and public support to move his Bill through the Assembly.  Please let your Assemblyman know that you support the goals and requirements of Bill A02300.  You can reach 110th Assembly District representative Phil Steck, by clicking here.

– use the short URL http://tinyurl.com/OverTrim to share this posting.

appellate court says neighbors waited too long to challenge the giant Duanesburg propane tank

  update (November 29, 2012):  Today, the New York State Court of Appeals, the highest court in the State, denied the Miners’ motion for “leave to appeal” the decision of the Appellate Division. (Motion No. 2012-1042) The Court states at its website that denial of leave to appeal should not be construed as an opinion on the merits of the case. There are no further steps that Bill and Cyndi Miner can take, and the lawsuit is over.

  The Third Department appellate division issued its decision today (Aug. 23, 2012) affirming the lower court’s dismissal of Bill and Cyndi Miner’s lawsuit, which challenged the placement of Long Energy’s 30,000-gallon propane storage tank less than 200 feet from their living room in Duanesburg under the category of a “retail store”.  The decision states that “The entire petition is properly dismissed based on the doctrine of laches, which respondents pleaded and proved.”  Basically, the court said that because the Miners waited until the facility was almost completed to bring their lawsuit, it would be unfair to Long Energy to let them challenge the issuance of the special use permit.

The Appellate Court did not say that it was proper to put a propane storage facility at that location, but merely said the Miners filed too late, even though they filed within the statute of limitations.  No issues were dealt with “on the merits,” so the Court did not decide whether a bulk storage facility can be considered a “retail store” when there are no personnel, no buildings, and no sales or customers on the premises, nor whether the danger from putting a high-hazard facility so close to homes (and a church and a welding operation) was adequately considered by the Planning Board .

 Click for the Appellate Division’s decision in Miner v. Town of Duanesburg Planning Board (NYS Supreme Court 3rd Department App. Div., Case No. 513780, 2012 NY Slip Op 06043, August 23, 2012).  Our arguments against the tank can be found in our posting “Duanesburg needs a dictionary” and in our subsequent discussion of the appeal.  Also, read the Statement of Facts from the Miners’ Appellate Brief.

    LACHES: The doctrine of laches is based on equitable principles and states that a court may refuse to hear a complaint, even when as here the petitioners filed within the statute of limitations, if the relief they request would cause undue hardship to the respondents because of an inexcusable delay in bringing the lawsuit.  Here, the Third Department notes that the Miners were at the public hearing in March 2011 but did not file until June 2011 (they actually filed May 26, 2011).  The Appellate Division concluded:

“Thus, although petitioners’ effort to resolve their concerns through negotiations directly with Long Energy is commendable, their failure to pursue any legal remedy while construction of the facility proceeded to near completion right before their eyes must result in dismissal of this proceeding.”

Naturally, Bill and Cyndi Miner, and I as their good friend and appellate lawyer, are disappointed in the 3rd Department’s decision, and respectfully disagree.  Laches is about equities — fairness and justice — and we believe there were/are many reasons why it was unfair to deny the Miners a chance to show that it was unlawful for Duanesburg to allow a giant propane storage tank at that location.  The result is placement of a high-hazard industrial use in a restricted commercial zone and a neighborhood populated by single-family homes and small farms.  Here are a few of the facts and issues the appellate court never mentions that show the Miners had sufficient equities on their side to allow them to be heard:

  •  the Miners did not bring the lawsuit solely for their own sake; a giant tank situated near a road with open access by people and vehicles creates a serious safety hazard for all who live, work, or worship near there
  •  the Planning Board granted the special use permit under the category of “retail shop or store,” although — as the Court states — “Long Energy sought to construct a propane storage facility featuring a 30,000 gallon tank.” Not only is a storage tank not a store, the Town’s Zoning Ordinance specifically defines the storage of explosive materials as a heavy industrial use, and the Town has no heavy industrial zoning. The Town’s Zoning Enforcement Officer himself issued the facility an occupancy certificate as a High-Hazard use.
  • allowing a dangerous use that is so inappropriate for this zone and neighborhood undermines the entire Town’s faith in the Zoning Covenant  — the promise that zoning restrictions will be enforced and their lives and property protected
  •   Long took a calculated risk that it could avoid a legal challenge to the permit despite not operating a store on the premises; not supplying any form of visual or audio buffer; installing no restrictions on access, and no protection in front of the tank from accidental or intentional vehicle collision
  • the Miners were interested in far more than what the Court called their “viewshed”.  They delayed their lawsuit thinking Long had agreed to construct a large berm in front of the tank that was tall enough (and topped with sufficient evergreen trees) that it would be a visual and sound buffer, protect the tank from vehicle damage, and help protect the neighbors from an explosion.
  • Long knew that the Miners had strongly opposed the tank at the public hearing, saying it was not a store, and dangerous, and thus not an allowed use.  Long therefore did not prove an important element of laches, because it could not show that it had no prior knowledge that the Miners might sue to stop their project.
  • This is not a case where a significant building would have to be destroyed if neighbors who had seen the ongoing construction won their lawsuit.  There was no building, merely a storage tank that could readily be moved on a flatbed truck to an appropriate location.  That greatly reduces any hardship, which the respondents brought on themselves, if the Miners won.
  • If there were any factual disputes about fairness and equities and hardships, the Supreme Court was required to give the benefit of the doubt to petitioners, or else to hold a fact-finding hearing on important questions.  The appellate division could have allowed a better balancing of equities by remanding the case to the Supreme Court for a quick trial.

  The Miners are considering whether they will ask the Court of Appeals (the highest court in the State) for leave to appeal the appellate court’s decision.  They have 30 days after being served with the decision to do so.

Finally, here are a few musings about the aftermath of this case:

  • Members of the Duanesburg Planning Board (including Ms. Novak and Mr. Wiederman) specifically noted that this was not a store or that no retail sales would be going on at the property — it is just bulk storage for distribution by Company trucks to customers.  But, no Board member was responsible or courageous enough to try to block this project.  A reversal might have been an important reminder of their duties, and a motivation to ask the Board’s counsel for an objective legal opinion.
  • State law specifically allows “an officer, department, board or Bureau of the town” to appeal any decision of the code enforcement officer to the Zoning Board of Appeal.  [Town Law.Sec. 267-a(4)] That means that the Town Supervisor, the Planning Board or its members, or even the Town Counsel could have asked the Zoning Board of Appeal to interpret whether a propane storage tank could be allowed under the “retail store” category in the C-1 district, and whether it was a banned heavy industrial use.  They could have gone to the ZBA as soon as the CEO Dale Warner made his decision in February 2011 that the tank was an appropriate special use, or gone after the permit was granted. No one did so.  Indeed, when Bill Miner went to the Town Supervisor right after the permit was granted and asked if she could do anything to stop the permit, she told him there was nothing she could do and the only thing Bill could do was to bring a lawsuit or try to reach a settlement with Mr. Long.
  • Allowing this permit to stand sets a very bad example for the Planning Board and Enforcement Officer.  For example, I hope that Town officials do not conclude they can ignore the plain meaning of everyday words such as “retail store”. What will they decide is a place of worship or an office building, if they can ignore a word as explicit and ordinary as “store”? 
  • The Duanesburg zoning ordinance allows “retail stores” in its quaint Hamlet District, with only a 40-foot setback.  I hope that doesn’t give other propane companies any ideas for placing their tanks.
  • An actual retail store would have been acceptable and probably desired by the neighbors.  A store tries to offer needed or desired products or services, creates jobs in the Town, and attracts people to the neighborhood and Duanesburg.  This propane facility does none of those things.

    Besides putting people at risk, the Town has spent over $38,000 defending a permit that on the very face of the Ordinance should never have been granted.   Despite this “victory,” I hope some important lessons were learned that might somehow avoid similar conduct in the future and help justify that expenditure.  Public-minded tax-payers like Bill and Cyndi Miner should not have to rush to court and suffer the aggravation and expense of an Article 78 lawsuit in order to undo the work of appointed or elected scofflaws and protect their peace of mind and property values.   Of course, this case again underscores the need for constant vigilance — and a litigious spirit — on the part of the public.

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challenge to Duanesburg propane tank goes to the Appellate Court

– the 30,000-gallon propane tank that Duanesburg permitted in the category of  “retail shop or store” is seen from near the Miners’ front door; click on the image for a larger version –

    By filing their Appellants’ Brief with the 3rd Judicial Department Appellate Division on Monday, March 19, 2012, Bill and Cyndi Miner continued their fight against a giant, 30,000-gallon propane storage tank that the Town of Duanesburg allowed Long Energy to place within 200′ of their home last year, in its restrictive C-1 commercial zone, under the special use category of a “retail store”.  [The story of their court battle is told at our weblog post “Duanesburg needs a dictionary,” July 14, 2011, with many photos, linked resources and updates.] Click for the Statement of Facts from the Miners’ Brief, dated March 19, 2012, Miner v. Town of Duanesburg Planning Board et al, NYS Supreme Court, Third Department Appellate Division, Case No. 513780.

note: The author of this weblog is a close friend of Bill and Cyndi Miner and, after over a decade on retirement status with the Bar, offered to serve as attorney for the Miners in their Appellate Division proceeding.

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update (May 30, 2012): Oral argument was held yesterday, May 29, at the 3rd Department Appellate Division at the Empire State Plaza in Albany.  It will be a month or more before the judges release their decision.  Stay tuned.

The Miners’ Appellants’ Brief makes the following major points, appealing the July 22, 2011 decision of Justice Barry D. Kramer of the Supreme Court in Schenectady County, which dismissed the lawsuit:

  • Laches. Judge Kramer should not have applied the doctrine of laches (that inexcusable delay bringing the lawsuit was unfair to Long Energy, although the Miners filed within the statute of limitations), because: (1) the Miners had delayed suing because they thought they had reached a compromise with Long that would prevent litigation (if Long would build a large berm in front of the tank, topped by evergreen trees, that would protect the tank from vehicle impact and provide a sound and visual buffer); (2) Long Energy had notice that the Miners were contemplating a lawsuit and therefore, under controlling court opinions, may not raise a laches defense; (3) the harm to Long if they were forced to stop operations at the site would not be “undue”, because Long took a calculated risk (knowing their tank was not a retail store) and because the tank can readily be removed and reused elsewhere.
  •  Exhaustion of Remedies.  The court below erroneously dismissed their claims after finding that before coming to court the Miners should have first appealed to Duanesburg’s Zoning Board of Appeals the “determination” of the Town’s Code Enforcement Officer, Dale Warner, in which he decided the application for the bulk propane facility fit into §11.2.3 of Duanesburg’s Zoning Ordinance, the “retail store” special use category).  By not going first to ZBA, the court concluded, the Miners “failed to exhaust their administrative remedies”.  The Miners claim they were not “aggrieved” by Mr. Warner merely referring the application to the Planning Board for action, and therefore were not required nor allowed to go to ZBA, and instead must appeal to the Supreme Court the grant of the special use permit, under New York State Town Law §274-b(9).  They also point out that Duanesburg’s zoning ordinance is unique, requiring the Planning Board to ensure that the proposed use is in compliance with all standards and requirements in the entire Ordinance before granting a special use permit.  That obligation distinguishes this case from those in which the courts have said a planning board may not interpret a zoning ordinance and decide a proposed use is not permitted.
  • Retail Store“:  On the merits, the Planning Board and the Supreme Court were wrong to conclude that a bulk propane facility was allowed in the C-1 zone under the retail store category. The plain, ordinary meaning of the words “retail store” must be applied by the Board, which instead decided to follow the interpretation of the Code Enforcement Officer that it was a permitted “retail establishment” because Long’s bobtail trucks took propane from the facility and delivered it to Long’s customers’ homes and businesses.  The Miners pointed out that the propane facility, which has no personnel, no buildings and no sales or public access on the premises, was neither a store nor a retail use of the parcel.

– notice the lush landscaping and sturdy “buffer” between the tank and the road –

  • Neighborhood Impact.  The Board was wrong to conclude simplistically there could be no adverse impact on the neighborhood because it was already zoned commercial, and therefore the Board did not adequately protect the character of the neighborhood and its property values.  One example: the Board did not fulfill its obligation to assure an adequate visual and noise buffer between the facility and nearby lands, when it allowed Long Energy to merely plant 4 deciduous trees across the 250′ frontage along Western Turnpike, with nothing else between the tank and the road, including no vehicle barriers such as bollards. See the discussion about The Neighborhood below.  Also, the Board allowed Long Energy to renege on its promise to put a perimeter fence and entry gate on the facility in order to control access.
  •  SEQRA: The Board failed to fulfill its obligation under the State’s Environmental Quality Review Act, because it did not take a “hard look” at potential significant harm to the public health and the character of the neighborhood — especially the failure to look at ways to lessen the likelihood and effects of a catastrophic explosion of the tank.

The Neighborhood:

     When Bill and Cyndi Miner bought their home in 1999, their parcel and all the lands across the street were zoned “Agricultural-Residential”.  In 2001, Duanesburg superimosed a C-1 Commercial zone 500-feet deep along both sides of Western Turnpike.  Patrick Barnes, the Planning Board Member who chaired the public hearing on Long’s special use permit and rushed through the unanimous vote a few minutes after the hearing ended, swore in his affidavit to the court that the neighborhood is already “predominantly commercial.”  In fact, there are mostly residences and agricultural or vacant lands in the immediate neighborhood of the propane tank and the Miners’ home, plus a church.

The Record that is going up to the appellate court doesn’t show the neighborhood in great detail: For example, it does not show that on the tank’s side of the road, heading west, there is a row of at least five single-family residences next to the vacant field that borders the propane facility, nor that heading east there is another row of single-family homes starting next to the equipment leasing firm that borders the propane storage facility.  The heavy equipment firm is, in fact, the only parcel with a commercial use (except for farmland) that is visible heading east along that side of the road for a mile or more.

Here is a map showing only the parcels that we know about from the Record that was before Justice Barry Kramer in the Article 78 proceeding, which the Miners are appealing.  [The only facts that can be argued to an appellate court are those in the Record from the proceedings below.] After the map, I’ve indicated each parcel and how it is used (with references to the Record on Appeal).  Clearly, I think, this is not a “predominantly commercial” neighborhood:

. . .

As you can see, there is a lot of land that is still covered in green, and lots of lots with homes that have been there from before there was a C-1 zone along Western Turnpike.  Also, the dark area in the top left-hand side of the map is a bog that straddles both sides of the road.   Although Duanesburg has no Heavy Industrial Zone, the Planning Board let a dangerous, looming, industrial facility be placed in this pleasant rural neighborhood.

– map submitted by Long of the same stretch of road . . . click on map to enlarge –

An applicant such as Long Energy is required under the Duanesburg Zoning Ordinance to provide the Planning Board with “a map showing the important existing natural and man-made features in and around the site” [§14.6.2.2], and to submit “a sketch or map of the area which clearly shows the location of the site with respect to nearby . . . properties . . . and other pertinent features.” [§14.6.1, Sketch Plan review (b)] Nevertheless, the dismally low-resolution image above this paragraph is the better of the two images/maps of the area submitted to the Planning Board by Long Energy. It fails to indicate that any of the row of buildings to the west (left) of the tank, which you can see if your squint hard enough, are homes; in fact, each of them is a single-family residence.   The Board did not ask for a better map.

 Note re Lawyers: The Miners started their Art. 78 proceeding challenging the special use permit with a pro se Petition, meaning they had no lawyer.  Before the hearing was held in front of Justice Kramer, my brother Art Giacalone, of East Aurora, NY, was retained to represent the Miners in Supreme Court; Art is an expert in challenges to zoning actions.  In December 2011, I took over as the attorney of record for my good friends Bill and Cyndi Miner to handle this appeal.  Nonetheless, as this is a volunteer effort on my part, I continue to maintain my status as a retired member of the NYS Bar.

– the Miners’ antique shop in their barn near their home along Western Turnpike –

Above is the old barn that Bill and Cyndi restored for their weekend, seasonal antique shop.  It’s located west of their house, about 500 feet from the Long Energy propane tank.  Long and the Town have argued that because the antique shop is “commercial” and the tank facility is also “commercial” there won’t be any effect on the neighborhood having the propane tank located there. (Note as you look west toward the sunset that there are no other “commercial” entities in sight.)

p.s. Here are a few more facts that we wish were on the Record and could be taken into consideration by the appellate court:

  • There have been judicial decisions that mention that a town planning board or town board had informed a neighbor that the town’s zoning board of appeals is the correct place to bring a complaint that a proposed use was not permitted.  (For example, Swantz v. Planning Board if the Village of Cobleskill, 34 A.D.3d 1159; Cowger v. Mongin [ZBA of Niskayuna], 87 A.D.2d 932).  That did not happen here.  Instead, before the public hearing, Bill Miner was told by the planning office that the tank was clearly permitted and he could not stop it.  When Bill met with the Town Supervisor and the Town Code Enforcement Officer the day after the special use permit was granted for the propane facility, he was told by the Town Supervisor that the only thing he could do to stop the project was to go to court.   Moreover, she urged him instead to “reach out” to Mr. Long to try to reach a settlement, which Bill did.
  • Bill Miner not only offered to avoid a lawsuit if Long built a large berm to act as a visual and noise screen/buffer and barrier to protect against damage to the tank, Bill also offered to build the berm for Long, with the help of other neighbors with the equipment and know-how to do so.  And, Bill also offered to plant the row of evergreen trees on top of the berm for Long.
  •  Not only does the Department of State local government office indicate in its Guidelines for Applicants to the Zoning Board of Appeals that a neighbor is not “aggrieved” (negatively affected) until a Code Enforcement Officer actually issues a permit or certificate to the subject landowner, so do the BZA Guidelines for Applicants of the City of Schenectady, and the Zoning Board of Appeals primer of the Westchester County Planning Federation.  If not aggrieved, a neighbor is not required or allowed to go to the Town zoning board.
  • Duanesburg’s Comprehensive Plan  describes neighborhoods such as that of the Miners and the Propane facility in the following statement (at 45):
    • “Much of the Commercial District is currently vacant or in agricultural use providing ample acreage to accommodate business development. Certain areas are predominantly occupied by single family dwellings since they are a permitted use by special use permit. In areas of Commercial Districts dominated by single family dwellings, consideration should be given to rezoning the property to accurately reflect existing land use.”
  • Table 7.1 of the NFPA/NPA Fire Safety Manual, which was used by Long Energy to evaluate their bulk propane facility, shows — as one example — that the release of the inventory of transfer piping as small as  2″ x 30 ft. long at 80 GPM for ten minutes can result in an Explosion Hazard Distance of over 250 ft.  [The Miners’ home is less than 200 feet away.] Imagine what any significant rupture of the tank itself could do.  Long’s Fire Safety Analysis, upon which the Planning Board relied in saying there was no risk of explosion or fireball to neighboring properties, only dealt with brief releases from shorter lengths of 1″ and 2″-diameter piping and hoses. See Table 7.1 in Long’s FSA . [If interested, click here for the full 2011 edition of the NFPA/NPA Fire Safety Manual]

– Long indicated to the Planning Board that the tank would not be illuminated at night, but it is in fact brightly lighted every night, all night –

appreciating and mourning IOOF’s Temple of St. Paul (with demolition update)

follow-up: . .   . October 2012: another bait-n-switch?  Click on collage to see the story . .

and, see Nicholaus Building demolished (April 8, 2017)

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  . . .

– IOOF’s graceful and “strong little structure” (Gazette, A1, Jan. 31, 2012) is almost gone –

   

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. . . 

– click on a photo for a larger version

  update (Jan. 31, 2012): Today’s the fifth day of the physical demolition by Jackson Builders of the Odd Fellows Hall at 440 State St.   The terra cotta façade is gone and the entire building will be removed over the next few weeks.   This slideshow includes photos taken about 7:30 on this gloomy-gray morning at the site plus shots taken on November 20, 2011, when Tom Hodgkins and his children held an Architecture Appreciation Party for the building.  That story is below in the original posting. At the bottom of this posting you will find a Gallery with each of the photos; clicking on a Gallery image will bring you to a larger version; scroll over a Gallery image for a description

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ORIGINAL POSTING

  .  .  .

– condemned façade of St. Paul’s Temple – IOOF Hall – during the Hodgkins Family Appreciation Party and Protest (20Nov2011) –

 Tom Hodgkins and his three kids had an Architectural Appreciation Party in front of 440 State Street the past two mornings.  As Tom explained in a message to our Stockade neighborhood email list Saturday night:

“We had fun today at our architectural appreciation party.  The kids played music, carted around the wagon, ate candy and fruit, while I discussed the fate of the building with pedestrians.”

. . click on a photo for a larger version; scroll over it for a description . .

Tom told the Gazette in the Sunday paper today: “We’re just appreciating this building and the values it embodies before it’s gone.  It’s already been done.  The city’s been bought out.  It’s done. We’re just here to appreciate it before it’s gone.” See “Man stands alone in protest of plan to raze historic Schenectady hall” (Sunday Gazette, by Bethany Bump, November 20, 2011, at B5; online by subscription) More of the story can be found in Thursday’s Gazette, in “Planners approve demolition of historic Odd Fellows hall” (Daily Gazette, by Justin Mason, November 17, 2011, at B1; online), which explained:

“Wreckers await the former International Order of Odd Fellows hall in the very near future.

“Members of the city Planning Commission narrowly approved drastic changes to a plan they approved in July, allowing building owner Tony Civitella to demolish the entire structure at 440 State St. . . .

“The approval will allow Civitella, the president and founder of Transfinder, to immediately move forward on demolishing the entire building. His original plans called for the leveling of the rear of the structure, but to retain the ornate terra-cotta facade and about 20 feet of the building’s front.”

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The Planning Board majority, with virtually no time for the public to weigh in, rushed to impose the death penalty on the Temple after Civitella came up with an engineering report saying the façade cannot be saved, and pressed for immediate action on his new plan due to imminent winter weather.  We’re supposed to believe that no one at Metroplex, no one in Civitella’s organization, and none of his architects thought to ask the obvious question last Spring: “can the façade be saved and can we afford to do it?” Instead, the building gets purchased at fire-sale rates, Metroplex promises grants — including a $60,000 façade grant — and the project is announced with great fanfare and applause for Mr. Civitella and Metroplex.   If there was no engineering report prior to the first approval, lots of heads should roll. Ditto, if there was an engineer’s report that endorsed the façade-saving plan.

  For me, it’s much too much like the sorry Gillette House bagel shop story from January, 2011, leaving the same bad taste in my mouth.   Shortly after much hoopla and back-slapping over a plan to “save” an important historical building, the shrewd businessman-buyer discovers his original plan is simply no longer viable, and civil servants with the obligation to look hard at the situation and to preserve and protect our architectural heritage give in without demanding lots of facts and taking time for appropriate consideration. It is outlandish that a decision could be made when Civitella only submitted his drastically altered plans two days before the Planning Commission hearing.   Does anyone know when Civitella got the first no-go engineer’s report and when he could have first given the Commission a heads-up?   It seems far too convenient that it happened so far into winter that the Commission could hide behind weather as a reason for its hasty action.

 You can bet there will be a great rush to knock that building down, especially the troublesome façade.  A lawsuit will be complicated and expensive, and have only a slight chance of finding a sympathetic judge who could act in time to save this fine old building.

Thanks to Planning Commission member Matthew Cuevas for trying to slow down the process by tabling the measure.  And, thanks to Schenectady Heritage Foundation Chairwoman Gloria Kishton, for frantically piecing together public opposition over such a short timeframe.  Especially, thank you, Tom Hodgkins and kids, for reminding us what we’re losing.  As Tom told our email group yesterday:

  “Spending time in that location really gives one some perspective on how few historic buildings remain downtown, and the loss of a building built by the people for the people in the name of love is a crime.  Its not the loss of a bank, or some industrialist’s residence, it is the loss of a temple. “

The Hodgkins kids always make me grin (often due to their photogenic charms).  But, seeing them at this Party-Protest had me smiling even more, hoping some of their dad’s zeal will rub off, so they’ll never simply take for granted the old buildings they see every day around their Stockade home.  At the rate they’re coming down despite laws meant to protect them, there soon won’t be any historic buildings left to preserve in downtown Schenectady.  The only, slight consolation will be that Tom and Gloria and I, and other lovers of our architectural heritage won’t have to have our Thanksgiving meal ruined with a holiday case of Demolition Agita.  This year, however, I’m heading to my medicine cabinet for a second helping of architectural-size antacid.

    . . 

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Continue reading

Duanesburg needs a dictionary

 update (Aug. 23, 2012): The Third Department affirmed the lower court’s decision, saying the Miner’s waited too long to bring the case and it would be unfair to Long Energy to make it remove its tank.  See our posting today.

update (March 23, 2012): See our posting “challenge to Duanesburg propane tank goes to the appellate Court“. Bill and Cyndi have filed their brief with the NYS Supreme Court Third Department appellate division.  Answer briefs are due by May 4th. Oral argument is scheduled for May 29, 2012. (Miner v. Duanesburg Planning Board, Case No. 513780). The posting includes, among other things, a summary of the Petitioners’ arguments, and a listing of additional facts we wish were on the Record and could therefore be considered by the appellate court.

  

  . .  Summary:  Bill and Cyndi Miner’s battle with the Town of Duanesburg, over placement of a giant propane tank less than 200′ from their home, is a tale that could happen to any of us. It shows how much we have to lose if those in charge of interpreting and enforcing zoning and safety laws break the Zoning Covenant by making arbitrary decisions or simply ignoring the law and the promises it contains.

The Town’s Planning Board allowed Long Energy to install a 30,000-gallon bulk storage propane tank on a parcel zoned commercial, under the use category of “retail store or shop.”  This “store” has no building, no personnel, no sales to customers nor parking spaces for them; instead, Long Energy’s “bobtail” trucks fuel-up there before making delivery to homes, farms, and business customers, and smaller storage tanks (100- and 200-gallon) are kept there before being delivered and installed at customer locations.

– Long Energy’s Propane Facility, 2321 Western Turnpike, Duanesburg  NY –

Ignoring the key words “shop or store”, Duanesburg’s planners focused on the term “retail” and insisted that the huge tank is a “retail establishment” because the propane is stored there “for retail distribution” by Long’s tank trucks.  Of course, every facility owned by a retailer is not a retail facility, and a location that offers no sales to customers on the premises is simply not a retail use.  As Long stated many times in its submission and testimony, the facility is a bulk storage plant.  The planning office and Board also completely ignored the provision in the local zoning ordinance that includes the storage of explosive or flammable materials in the definition of an “Industrial, Heavy” use.  Heavy Industrial uses are not permitted anywhere in Duanesburg, which has only “light” industrial zoning, and they certainly are not permitted in the more-restrictive C-1 commercial zone.

In considering environmental and fire and safety questions, the Planning Board in effect acted as if the Long Energy facility were no more of a hazard than having a conventional retail store on the parcel.  The propane storage facility, which is near many homes, a church, and other businesses, is classified as a High Hazardous use and occupancy under the NYS Building and Fire Codes and by the Town’s own zoning enforcement officer; and the quantity of propane stored there is large enough to be considered a Chemical of Interest as a potential terrorist risk by the U.S. Homeland Security Department.  Ironically, were this facility merely a retail or wholesale store, the Fire Code might have required significantly more safety protection systems than exist at this bulk propane plant. [The discussion of the subsequent proceeding by the Miners in front of the Duanesburg Zoning Board of Appeals, regarding the failure to comply with the NYS Fire Code, has been moved to the bottom of the post “Duanesburg ZBA says vehicles no threat to propane tank.”]

  Under its Zoning Ordinance, the Town Planning Board can only grant a special use permit when the proposed use fits into one of the specifically permitted categories (§5.1.1), and after many other conditions are met that ensure neighbors will not be adversely affected.  For a brief summary of how the Planning Board ignored the law and broke their covenant of trust in allowing the propane tank, see my Sunday Gazette Viewpoint OpEd column, “Propane tank ruling creates nightmare for Duanesburg couple” (July 31, 2011, p. D1; also available by subscription online here).

If the creators of the Hangover films ever dreamed up the plot played out at the Duanesburg Town Hall this year and called it Tanked, the scenario might seem a bit outlandish for even a Bradley Cooper summer farce.  The nightmare script is, however, all too real for the Miners.  Not only did the Town call a propane tank a retail store, but Supreme Court Justice Barry Kramer has refused to reverse the action, saying the Miners should have acted sooner (although they were within the statute of limitations) and should have gone first to the Town’s zoning board, and that it was not “arbitrary and capricious” to put the tank in a commercial zone in the retail store category.

This posting has photos and links to important court documents (such as the Article 78 petition and court decision), and to materials describing the law and facts, the arguments raised by the Miners,  and their continuing efforts to overturn the granting of the special permit.  In addition, detailed analysis can be found at the bottom of this posting on important safety and legal issues, along with the text of relevant local laws, in our Appendix: Safety and Legal Issues.  You can share this webpost using the short URL:

http://tinyurl.com/propanetanked

  Note re Lawyers: The Miners started their Art. 78 proceeding challenging the special use permit with a pro se Petition, meaning they had no lawyer.  Before the hearing was held in front of Justice Kramer, my brother Art Giacalone, of East Aurora, NY, was retained to represent the Miners in Supreme Court.  In December 2011, I took over as the attorney of record for Bill and Cyndi Miner to handle this appeal.  Nonetheless, as this is a volunteer effort on my part, I continue to maintain my status as a retired member of the NYS Bar.

[original posting, with updates, Appendix]

With a whimsical message superimposed on the 30,000 gallon propane tank, Bill Miner stands roadside in front of the “retail store” allowed 200′ from his house by the Duanesburg Town Planning Board –

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My former Schenectady Stockade neighbors Bill and Cyndi Miner recently got a vocabulary lesson from the Town of Duanesburg Planning Board: they learned that the term “retail or wholesale shop or store” can mean a giant propane bulk storage tank.  They also had a civics lesson: they learned that vigilance is not enough to ensure that the covenant of trust created by a town with its residents through zoning and planning is fulfilled.  [A related article can be found in the Sunday Gazette, B2, June 12, 2011; the Gazette also reported on the case in an article on Oct. 3, 2011; subscription required] Bill and Cyndi have lived at the Duanesburg location, and raised their youngest child there, for over a dozen years.

The Town re-zoned their parcel and a 500′ deep strip of land on both sides of Western Turnpike “C-1 Commercial” a few years after the Miners moved in.  Because of the clear provisions in the Town zoning law, Bill and Cyndi thought that meant only certain types of businesses would be allowed there, but no light or heavy industrial activities. For the past several years, the Miners have planned to sell the house and front portion of their land and build a smaller “empty nest” home on a ridge further back on the property, which has woods, marsh land, ponds and a creek.  The Town allowed them to subdivide the lot in order to do just that.  Bill and Cyndi had placed the house on the market for sale prior to any indication that a propane tank would be situated closeby.   Given the current real estate climate, and the added burden of the tank’s proximity, they recently decided to take the house off the market for the time being, thus postponing their planned move to a more idyllic part of their land.

 . .

– northeast (L) and southeast views of Long Energy’s under-protected Duanesburg Propane tank –

The Miners filed an Art. 78 lawsuit against the Town and Long Energy, owner of the propane distribution facility, at the end of May, in the Supreme Court in Schenectady County (Miner v. Town of Duanesburg Planning Board et al., Index # 2011-1014).  Their claims against issuance of the special use permit were rejected by Judge Barry D. Kramer on July 22, 2011.  Although they filed within the short (30-day) statute of limitations, the Judge said that the Miners should have acted sooner, making it unfair to order the tank to be removed; and that the Board could leave the interpretation to the Town’s code enforcement officer as to whether the tank fit into the retail shop category, even though §14.6.2 the Zoning Ordinance explicitly states that “No special use permit shall be granted until the Board shall find and determine that . . . d) Such use will comply with all other terms, conditions, requirements and standards imposed by this Ordinance.” Judge Kramer also said the Board had taken the “hard look” required under the State’s environmental review laws.  He failed to address crucial question whether the tank is a retail store and simply concluded that it was not arbitrary and capricious for the Planning Board to approve a propane tank for that commercial location.  See the Appendix: Safety and Legal Issues below for detailed discussion of the safety and legal issues ignored by the Town and the Court.

checked box Here are links to important documents and materials:

  • the Miners’ Art. 78 Notice & Petition challenging the grant of the special use permit to Long Energy, which quotes relevant portions of state and local laws
  • a transcript of Judge Kramer’s Decision from the Bench on July 22, 2011
  • The extensive Statement of Facts from the Miners’ Brief to the Appellate Division, dated March 19, 2012.
  • recent 3rd Department appellate decision in Erin Estates, Inc. v. McCracken, 2011 NY Slip Op 03707, requiring the use of the “plain meaning” when interpreting a clear and unambiguous word or phrase in a zoning ordinance if it is not otherwise defined with a special meaning in the applicable law.

 Note: Bill and Cyndi Miner lived next-door to me on Union St. when I first moved into the Stockade in 1989 and are longtime friends of mine.  Although they started their lawsuit pro se, they soon decided it was too complicated to handle without a lawyer, and they retained zoning law expert Art Giacalone of East Aurora, my brother, to represent them in their lawsuit.  Although I’m a retired lawyer, I have tried to write this post with a lay audience in mind.

The photos in this slideshow help suggest what it feels like to have a looming — and possibly kabooming — bulk propane tank right across the street from your home:

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. The Miners must now hope that the appellate court will help Duanesburg and other towns and cities, along with Judge Kramer, understand that:

Zoning is a covenant between a town and its residents — a promise that a homeowner’s important financial and emotional investments will not be devalued by unexpected and undesirable changes in a community or neighborhood.  Zoning limits what Board and owners can do, and creates important expectations about which activities are appropriate in particular locations and which are not.  Zoning laws also empower the town to add conditions and requirements to permits to ensure that a new use does not negatively affect nearby properties; with that power comes the responsibility to act to protect the community and its property values.

 It is difficult to understand why the Planning Board would go along with Long Energy and its Code Enforcement Officer, and break their zoning covenant to grant Long’s request.  Doing so will not bring one additional job to Duanesburg; it creates the threat of catastrophic explosion; and is very likely to lower the value of nearby homes and businesses, offsetting any increase in the tax base from Long’s parcel.  Worst of all, of course, it leaves the residents of Duanesburg unsure whether they can trust their leaders or the words written in their Zoning Ordinance and Comprehensive Plan.

checked box some important facts relevant to the equities, “clean hands” and timing:  There are a few “facts” mentioned by Judge Kramer at court that I would like to clarify. While explaining why he felt the Miners had waited too long to bring their lawsuit and were therefore guilty of “laches”, the Judge insisted in a mocking tone that the Miners were “taking photos” of the construction all Spring while the facility was being constructed, rather than bringing their lawsuit.  In fact, Bill and Cyndi took no photos.  The very first photos were taken on May 25, the day before their Petition was filed in court, for use with the Petition.  I took the photos used for their Petition and in other court documents, because Bill and Cyndi did not have any photos of the tank.

Far more important, Bill and Cyndi had a good reason for not immediately filing their Art. 78 lawsuit.  On the day after the Planning Board granted the special use permit, Bill Miner met with Town Supervisor Rene´ Merrihew and Dale Warner, the Code Enforcement Officer, and asked whether she could do anything to prevent the propane facility from being constructed.  The Town Supervisor said she could do nothing and that bringing a lawsuit was Bill’s only option.

  • Didn’t Ms. Merrihew know that State law allows any town official or board to challenge the action of the Code Enforcement Officer by appealing to the Zoning Board of Appeals [Town Law §267-a(4)], or to challenge in court the decision of a Planning Board on a special use permit application [§274-b(9)]?

Moreover, Ms. Merrihew asked Bill to instead “reach out” directly to Bob Long to come up with a compromise to avoid a legal challenge. Bill did just that, and within a few days, Bill thought they had reached an agreement that Long would build a large, protective berm in front of the tank topped with a thick visual buffer of evergreen trees; he therefore took no steps to sue Long and the Town in late March and April.

Only when it became clear in May that landscaping was nearly complete and Mr. Long was not going to build the expected berm, did Bill and Cyndi check to see whether the statute of limitations had expired, and rush to get their lawsuit filed within the statute of limitations.

   Judge Kramer also said the Miners could not complain so late about the propane tank, when they had themselves tried to have the tank located on a lot they owned adjacent to their residence.  In fact, before Bill Miner knew Long’s application was under the retail store category of uses, or had studied the Duanesburg Zoning Ordinance to learn whether a propane storage tank could be allowed in the C-1 district, and before he had learned more about the precautions needed to reduce the risks of tampering and hazardous impact with the tank, he had been told by the Duanesburg Planning Office that Long’s tank was absolutely allowed at the location and he could not prevent it.  Feeling helpless to stop the tank, and hoping to have more control over where the tank was placed in relation to their home, and over whether visual and safety barriers were constructed, Bill left one short phone message at Bob Long’s office, suggesting that Long might place the facility on one of the two vacant parcels the Miners owned along Western Turnpike, which are located on either side of their homestead.  That phone call was never returned and the idea was immediately dropped by Bill.

 By the way, despite the claims of the respondents that the tank would be closer to the Miners’ home if placed if the tank were placed on either of the Miners’ two (500 ft. deep) side-lots, it would have been farther from their house (and the road) than it is on its current lot.   Also, a large barn that would act as a buffer and screen is located between their house and the side parcel on the west side of their property.

Nonetheless, the court used that panicked, spontaneous and aborted offer as proof the Miners did not really mind having the tank nearby and as a reason to blame Bill for not knowing the law and not appealing the Town’s actions sooner.   The Miners are not developers or lawyers, and had no experience selling commercial property in Duanesburg.  Judge Kramer nevertheless said the Miners could not argue that the experienced business people at Long Energy Co. and their lawyers should have researched the permitted activities in the Duanesburg commercial district before asking for a special use permit as a retail shop, because Bill himself did not know what the restrictions were when offering his parcels for sale to Long.  Of course, an applicant must choose an allowed category when filing an application for a special use permit, and Long Energy — along with their lawyers and the Duanesburg planning officer who suggested the category — knew very well that a bulk propane storage facility is not a retail shop or store.  Judge Kramer might be willing to overlook Long’s inappropriate request, but other courts have made it clear that an applicant for a permit is expected to know the zoning law by the time it makes its application; as one court put it, “The burden of locating the business in an appropriately zoned site must fall on the business person.”

As soon as Bill Miner learned the tank was being proposed under the retail store special use category and realized he might be able to stop it, he turned his attention to opposing Long’s application.  Although his single, panicked phone message was never returned by anyone at Long Energy, its CEO Robert Long swore in his affidavit to the court that there had been “negotiations” in which Bill Miner was trying to get the propane tank placed on his own parcel for his personal profit and without any safety concerns, making Bill a hypocrite.  Although Bob Long never denied there was only the single unanswered phone message, Judge Kramer concluded there had been discussions in which Bill actively tried to sell his parcels to Long, and the Judge therefore acted as if the Miners, not the Longs, were acting in bad faith.

Exhaustion of Remedies? Judge Kramer also rejected the Miners’ appeal because he concluded that they had not “exhausted their administrative remedies.”   The judge said that, before going to court, the Miners should have appealed to the Zoning Board of Appeals the Determination made on February 8th by Dale Warner, Duanesburg’s code enforcement officer, that Long was allowed under the Ordinance to ask for a permit under the use subsection for retail shops.  But, that was not a public action that Bill and Cyndi could have known about, and the Determination form never even mentions a bulk storage tank, but merely describes the project as “retail distribution of propane,” simply referring to the subsection number of the Ordinance that includes retail shops.

Indeed, the Miners argue that they could not have appealed to the ZBA because they were not “aggrieved” at that point by the enforcement officer’s decision.   Dale Warner did not issue a permit or otherwise authorize Long to start doing anything at that site, all he did was refer the matter to the Planning Board.  At that point, even if they had known (which they did not) that the project was a bulk storage tank and not a retail store for selling propane, the Miners would have expected the Planning Board to do the only lawful thing and to reject the request for a special use permit. Once the Planning Board granted the permit, the correct place to appeal their action was in court in an Article 78 proceeding.

Throwing the Miners out of court because they rather than Long and the Town purportedly acted in bad faith is bad law and bad policy.  It in effect leaves all those affected by the placement of  this highly hazardous facility in the C-1 zone without a voice in fighting a boldly unlawful action by the Town.  This is not a fight over a garage or shed placed too close to a family’s property line.  This is a major precedent that violates the Zoning Covenant, endangers life and property, and sets a dangerous precedent.  When an aggrieved person properly files its court challenge about a matter so important to the entire Town within the statute of limitations, it is inexplicable that a judge would toss them out the courthouse door on flimsy laches and mootness arguments.  That is especially true when the tank would not have to be destroyed, as a building would be, if the Miners won the lawsuit and Long lost on the calculated risk it took when it called a bulk storage tank a store.  The tank can simply be placed on a flatbed truck and moved to an appropriate location.

checked box  APPENDIX: SAFETY & LEGAL ISSUES:  The Planning Board and the Supreme Court missed or misconstrued a lot of the important facts, and ignored the controlling law and safety implications, in their faulty assessment of the appropriateness and impact of locating the huge Long Energy propane tank near residences and businesses.  For example: Continue reading

farewell to a fine tree

– stump created Oct. 20, 2010 at 33 Front St.

. . . 

– Devin watches a City crew trim the tree in front of 33 Front St. on October 14, 2010 –

[as always click on a photo for a larger version and scroll over it for a description]

Little did Devin and I know last week (October 14) when we watched a crew trimming the locust tree in front of 33 Front Street that it was being groomed for an execution six days later.

. . . or, did Devin know better than I? . . .

. . . that this would be the scene when we stopped by one week later (Oct. 21):

— Nothing to block our view of Lawrence with the ill-fated tree gone —

When I heard on Wednesday afternoon that the mature, healthy-looking shade tree in front of Nancy and Fred Jonas’ home had been chopped down earlier that day, I made a quick stop to see the (irrevocable) carnage and take a few photos.

– tree stump with sawdust in front of 33 Front St. the day the tree was chopped down –

– from stump

. . .

. .  to trunk to top (taken Oct. 14) that tree sure looked healthy –

As you can see, however, the roots of the tree had disrupted the adjacent sidewalk.

Was the tree ill despite its apparent good health? No. Was the buckled sidewalk enough to seal its fate?  Did the tree offend someone in some other way?  Was every alternative adequately considered before permission was given and the decision was made to remove the tree? I later learned that it was the inconvenience of dealing with the various leaves, twigs, and similar droppings, that made the owners want it removed.

  • By the Way: Within a few years, the Jonases had moved away. The day I met the new owners at their front stoop, they said they wondered why all the other houses had a tree in front of them on their block, but their house did not. Don’t get me started.

As the masthead above suggests, I think we should do all we can to preserve every healthy tree in the Stockade .  More than ever, I  believe — as argued in a posting on June 18, 2010 — that “Schenectady needs a tree preservation policy.”

The City of Portland, Oregon got it right on its Parks and Recreation webpage (emphasis added):

STREET TREE REMOVAL: for trees growing in the right-of-way, between the curb and sidewalk:

Portland’s urban forest is a valuable asset, and all trees on public property are protected. Trees provide increasing benefits as they grow, and mature trees are an asset that requires decades to replace. Urban Forestry carefully considers each and every request to remove a street tree, and encourages tree planting, regular tree maintenance, and alternatives to tree removal except where no viable alternative exists. Street trees can only be removed if they meet the criteria of being dead, dying, or dangerous. Conditions that do not warrant removal include the tree dropping fruit or leaves, the tree being perceived as too tall or making too much shade, or the cost of routine maintenance.

What do you think?  I hope Devin will be around to benefit from the beauty, shade and other attributes of the tiny tree that is purportedly going to be planted to replace the mature one felled this week.  I fear that neither I, nor the rest of my Baby Boom generation neighbors, or our elders, will be so lucky, especially since the replacement trees are not actually meant to be tall enough to reach true shade tree status.

[Follow-up: the Jonases had the stump quickly removed and then had a new sidewalk poured over the spot. No replacement new tree was planted. update: Still no replacement tree, March 20, 2016.]  Please tell our local leaders that we need a tree preservation policy in Schenectady — especially for the Stockade and other historic districts.

follow-up (October 26, 2010):  Thanks to Tom Hodgkins of N. Ferry St., I can present a more complete image of the felled locust tree:

Here are two other photos captured from 2007 Google Street Views:

33Front-Google2007a . . . 33Front-Google2007

That locust tree was responsible for creating some great shadows on the sunny day we had a month before its demise, at the 2010 Outdoor Art Show:

 follow-up: By the September 2013 Outdoor Art Show, the magic of shadow and light was long gone. More tragic, 33 Front Street was For Sale, meaning that the tree died to save a few years of sidewalk raking and perhaps gutter cleaning. Incidentally, the new owners, not knowing my past interest in that tree, asked me the day I met them on their front stoop why that house had no tree, when the pattern suggested that each house would have one. I think my reply might have been “Don’t get me started.”

oas2013-kmindelearly

– above: Kathy Mindel’s exhibit, September 2013, at 33 Front Street  

Schenectady needs a tree preservation policy [with updates]

 

NFerry-March2016 Note: This posting was updated in early April, 2016, because the Office of the Schenectady City Engineer has apparently revived a plan that would result in removing virtually all mature trees from the City’s right-of-way (between sidewalk and curb) when replacing sidewalks, regardless of the health and stature of a particular tree, as it did on North Ferry Street in 2008.  [see photo to the right] When the issue first came up in 2010, in the context of repaving Washington Avenue in the Stockade, a combination of resident opposition and strong Gazette editorials (described and linked here and hereprevented the unwarranted attack on a valuable portion of our urban forest and the beauty and history it embodies. But, individual healthy trees have been removed since then on Washington Avenue at the recommendation of the Engineering Office as part of sidewalk replacements. And no less than our County Historical Society removed two healthy trees along its streetscape because, I have been told, they required too much raking, and in order to see the building more easily.

  • The preference of the Engineer’s Office for the North Ferry Street process was defended and clarified in a series of emails, on March 22, 2016, between the author of this posting and the assistant civil engineer responsible for sidewalk issues in the Office.  Fear of liability due to a tree being weakened by root trimming or damage during repaving or repair was given as the primary reason for the tree removal policy. And, see “Update from Infrastructure Committee,” Stockade Spy, March 2016, at 6.
  • update: The May 2018 Stockade Spy, at 2after discussion with City Engineers, reported this exaggerated warning: “Once a tree root begins to interfere with sidewalks, little can be done. When the roots are cut to level the sidewalk, the tree nearly always fails within a few years.” follow-upWhen asked about the soundness of the quote just given, Fred Breglia, arborist for the Landis Arboretum sent this response, in an email on March 28, 2019):
    • Breglia01

      Fred Breglia

      Based on my experience, it is a case by case situation. It varies greatly based on species, age, time of year, health, root conditions, type of care/finesse used by the company. These are just some of the factors that can contribute to the end result. Trees are living things and just like a human undergoing surgery, the way the person will bounce back from the process cannot be determined prior to the event when things may vary during the event.

      One suggestion is to have an arborist available or on call to watch over the process as it occurs.
  • SaveHealthyOldTreesfollow-up (March 12, 2019): Passage of the City’s new Sidewalk Assessment District resolution, which promotes fixing sidewalks with City-owner involvement a block at a time, again raises concerns of losing many street shade trees under the City Engineer’s root-cutting criteria. (See Times Union article, March 12, 2019). John Polimeni, the Council member most involved with the Sidewalk Assessment District plan, has stated that it is up to the Engineering Department whether trees are saved or removed.

SOStreesSignage1

Like a zombie with a chainsaw, the issue of needless deforestation has returned to threaten one of our most treasured Schenectady resources, its existing urban forest, with scores of fine street tree arrays and canopies that are the envy of many other cities.  More than ever, those who know the environmental, aesthetic, social, economic, and historic value of our irreplaceable “old” urban forest need to come together to shape and achieve passage and implementation of a Tree Preservation Policy for Schenectady, with street trees removed only if dead, dying or dangerous. Our efforts should be nonpartisan and span all segments of our community. Our success will be felt & appreciated for generations; our failure to act will leave us all immeasurably poorer. [For the web portal to Save Our Schenectady Trees see  http://tinyurl.com/SOStrees ]

  • SOSTFrontSt There are photo collages showing the effects of the existing deforestation policy and what we have to lose if we let it continue on other streets, in the first two Appendices at the end of this posting. Views of other street scenes from around the City will soon be added.

.

Original Posting, with updates:

The City of Schenectady’s skimpy reply to a Freedom of Information [FOIL] request that I submitted on April 15, 2010, concerning the repaving of Washington Avenue and the effects on its trees, was telling. It demonstrated that Schenectady has no general rules or guidelines concerning the preservation of trees that are affected by the actions of a City agency, or of private persons fulfilling a City contract. Similarly, there are no rules with regard to the impact on the City’s historic districts, where even minor changes in building façades or street scenes are usually banned when other reasonable alternatives exist. [Click here to see the text of my FOIL request and discussion of the City’s response.]

Not only are there no laws on the books, the preservation of our valuable mature trees is not mentioned in the Schenectady Comprehensive Plan 2020, which repeats (at 86 of the Community Profile section) the recommendations made in the 2003 Tree Master Plan for the City of Schenectady.  The Tree Master Plan was commissioned by ReTree Schenectady, which is “dedicated to the planting, care, and conservation of current and future generations of trees in the City of Schenectady.”  Nonetheless, preservation of existing trees is not among the eight recommendations identified in the Master Plan. One of the recommendations is, however, to “Remove or trim older trees in poor condition.”

. . . . .

– above is the endangered tree canopy of Washington Avenue; our website’s original Masthead showed the equally endangered trees at the west end of Front St. —

    This is a strange situation for a City which is so proud of its Historic Districts (especially the Stockade) and of it’s designation as a Tree City, USA, and which has so much to lose if it practices thoughtless or inadvertent deforestation.  In the June 18, 2010, Schenectady Gazette, then-Commissioner of General Services Carl Olsen said he expected the planning that was delaying repaving [negotiation with Washington Ave. residents on saving our trees] would be useful for further historic district paving projects, and he wants the residents to be pleased with the end result.  See our post, “No. Ferry St. lessons said to cause repaving delays” (June 18, 2010), which has photos of No. Ferry street stripped of its mature shade trees; and the Schenectady Gazette article  “Sidewalk talks delay paving of Washington Avenue in Schenectady”  (by Kathleen Moore, June 18, 2010; subscription needed for access).

. . .

– No. Ferry St. stripped of its mature trees due to repaving (2010) –

    When this post was originally written, in June 2010, we did not know that Mayor Gary McCarthy would stall repaving the Stockade section of Washington Avenue until a week or so before the Stockade-athon Race ran the full length of that street for the first time, in November 2014. The sidewalks were and remain untouched by the City. Thus, the six years since then-Commissioner Olsen voiced optimism about achieving a result pleasing to historic district residents clearly did not produce a better process than the one rejected by the community in 2010. Instead, in early 2016, we again face the threat of North-Ferry-like “clearcutting” of mature trees in the right-of-way between curb and sidewalk (leaving existing small, unthreatening replacement trees in place, and replacing the mature trees with similar “appropriate” trees). Furthermore, eight years after “appropriate” species of trees were planted as substitutes for the felled trees on No. Ferry, it is clear that the new trees will never bring the aesthetic and practical benefits of mature shade trees.

Rather than achieving a better process that might salvage a large part of our streetscape urban forest, the City has brought back the specter of blocks stripped of healthy shade trees, with homely tangles of utility wires made ever more apparent, and residents, strollers and cafe diners seeking relief from unfiltered sunlight. Adding to our concern is the fact that the very people we would expect to lead the search and fight for better policy choices in our historic district, the leaders of the Stockade Association [SA], appear to be acquiescing in the tree removal policy, and even abetting tree removal by starting a sidewalk condition survey. [See “Update from Infrastructure Committee,” Stockade Spy, March 2016, at 6, for discussion of sidewalk issues, such as the preference of the Engineer’s Office for the No. Ferry Street process, and the Association leaders’ apparent acceptance.] The SA sidewalk survey is taking place despite the City Engineer cautioning that if they receive direct information about particular sidewalks needing repair or replacement, they will be forced to issue citations requiring immediate correction of the problem by the property owner.

In 2010, this webpost called for “study, consideration and creation of an explicit policy on preserving our mature trees — by passing legislation, promulgating regulations, and/or issuing an executive order.” And, we noted that “Many other wise counties, cities, towns and historic district commissions have already done so.” Currently (April 2016), the City Administration is suggesting there is no urgency, because it has no budget for sidewalk repairs (despite all the bragging about large influxes of casino-related revenues). This fiscal situation could change at any time, but may nonetheless give concerned citizens time to put together a coalition supporting a Tree Preservation Policy for Schenectady.

 HISTORIC DISTRICTS: Although a tree-preservation policy is needed for the City’s entire urban forest, it is especially appropriate and necessary for its historic districts.  The City’s Zoning Law, Article VIII of Chapter 264 of the Schenectady Code, gives as the purpose of our Historic District legislation to (among other things, with emphases added):

▪    Safeguard the heritage of the City of Schenectady by preserving resources in the city that represent or reflect elements of its cultural, social, economic, political and architectural history.
▪    Protect and enhance the attractiveness of such historic resources to home buyers, visitors, shoppers and residents and thereby provide economic benefits to the city and its citizens.
▪    Conserve and improve the value of property within Historic Districts.
▪    Foster, encourage and advise the preservation, restoration and rehabilitation of structures, areas and neighborhoods.
▪    Promote the use of Historic Districts for the education, enjoyment and welfare of the citizens of the city.
▪    Foster civic pride in the beauty and history of the past as represented in the Historic Districts.

A tree preservation policy can help achieve many of the City’s Historic preservation goals.  As seen in excerpts from our Municipal Code, §264-74(B), printed below as Appendix Five, the Schenectady Historic Commission has the power to investigate and report upon matters before the City boards and departments, and to undertake surveys and studies, and make resultant proposals for regulations and special conditions and restrictions, “as may be appropriate to serve the purposes of this article.” Importantly, to assist the Commission, it may “may retain such specialists, consultants or experts to aid in its duties and to pay for their services and call upon available City staff for technical advice.” It is our hope that the members of the Historic Commission, with assistance from the staff of the planning and Engineering departments, will play an important role formulating, advocating and eventually implementing a Tree Preservation Policy for our City’s historic districts, with any such policy serving as a model for a City-wide tree preservation policy.

As the City of Tacoma, Washington, states on its Tree Removal webpage:

STREET TREE REMOVAL: for trees growing in the right-of-way, between the curb and sidewalk:

Tacoma’s urban forest is a valuable asset, and all trees on public property are protected. Trees provide increasing benefits as they grow, and mature trees are an asset that requires decades to replace. Tacoma carefully considers each and every request to remove a street tree, and encourages tree planting, regular tree maintenance, and alternatives to tree removal except where no viable alternative exists. Street trees can only be removed if they meet the criteria of being dead, dying, or dangerous. Conditions that do not warrant removal include the tree dropping fruit or leaves, the tree being perceived as too tall or making too much shade, or the cost of routine maintenance.

2CucNov-IMG_6519

The City of Portland, Oregon, also has a multi-faceted Urban Forestry mission, including a program to designate protected Heritage Trees, special protection for trees in a number of over-lay historic districts, such as King’s Hill, and provisions to allow a ramp to be built when the grade of the sidewalk is elevated over existing roots that cannot be cut and removed (see p. 10 – 11). A Portland Street Removal brochure explained:

Benefits of the Urban Forest

Portland’s urban forest is a valuable functional and aesthetic asset that is vital to the livability of our community.  . . . Trees soften and beautify the city landscape, offer habitat for wildlife, and provide essential ecosystem services such as capturing runoff, removing air pollutants and CO2, dampening noise, and modifying temperature extremes. The regular care and maintenance required by urban trees is a small investment relative to the large returns they provide – for publicly owned trees, less than $1 invested returns over $3 in benefits.

A City interested in attracting visitors to its historic districts (or business section) should also pay attention to the Clarksburg Historic District  [Montgomery County, Maryland] Streetscape Concepts Study (at 26, sec. 2.7). It makes this (obvious but often ignored) statement:

“Street trees and landscaping can greatly enhance the appearance of a streetscape. They can also provide shade and greenery that makes a place more walkable and inviting for pedestrians.”

– Similar points are made at the Colorado Trees organization’s website, in the piece “Urban Forests Can Improve Economic Sustainability”, which notes that trees attract customers and tourists and cause them to linger longer.  It also makes this broader point:

“The scope and condition of a community’s trees and, collectively, its urban forest, is usually the first impression a community projects to its visitors. A community’s urban forest is an extension of its pride and community spirit.”

As for property values, a community group in the Sydney, Australia region notes:

“Property values increase when there are visually beautiful street trees within view. . . .  If you want to immediately lower the value of your property, get the council to remove a large tree from outside your property.”

Furthermore, TreeLink: The Urban Forestry Resource is a comprehensive source for information and studies about urban trees.  It cites U.S. Forestry Service studies which have found:

  • A tree can return up to $2.70 for each $1 of community investment;
  • healthy, mature trees add an average of 10 percent to a property’s value; and,
  • nationally, the 60 million street trees have an average value of $525 per tree.

For the above reasons, and many others, the City of Los Angeles, CA, announced that “appropriate planning, planting and maintenance of Street Trees provide the residence of the City economic, social, environmental, ecological and aesthetic benefits.”  Its City Council therefore concluded that a uniform policy on the maintenance and enhancement of Street Trees is necessary, and (among other things), it:

RESOLVED that the City Council directs City Departments to review their relevant documents and procedures with regards to these Street Tree Policies, to incorporate these Policies into planning, operations, and permitting decisions, and to arrange presentations of the Department’s revisions affecting Street Trees to the Board of Public Works within six months.

According to Operation STOMP, in the first six years of its Healthy Trees, Smooth Sidewalks program, the City of Los Angeles “repaired more than 400 miles of sidewalks, preserving more than 52,000 trees that would have been removed otherwise.”

The City of Schenectady needs such a uniform policy regarding the preservation of healthy mature trees.  The policy should cover its own departments and contractors, as well as private citizens and property owners, and should insist that, unless a tree is dead, dying or dangerous, alternatives to tree removal must be fully considered and employed, except where no viable alternative exists.

Note: Los Angeles and other cities, citizens’ groups, and academics, have looked into the issue of saving trees that are causing the disturbance of sidewalks. There clearly are many alternatives that must be considered before taking down healthy trees. [update: See our posting “sidewalks vs. trees” (April 24, 2016)]

For example, see:

  • The City of Los Angeles has instituted special restrictions against the removal of any tree in specified Cultural Heritage Locations (including the requirement of a public hearing with regard to each designated tree), and also designates “street trees of significance,” stating that “The trees may be of importance due to their size, species, appearance, growth habits, flowers, or a combination of these characteristics. The City should be proud of these trees and the flavor and character that it provides to the neighborhoods in which they are planted.”
  • SJVTREES Tree Guidelines for San Joaquin Valley Communities (March 1999) This excellent,  comprehensive study is excerpted at length in our posting “why worry about our large street trees“, and in “sidewalks vs. trees“.
  • Municipal Research and Services Center (MRSC), a nonprofit organization in Washington State, provides a very useful resource on its website, reproducing the monograph “Sidewalk and Roots: Mitigating the Conflict—An Overview” by Gordon Mann of Auburn, California, which states: “[W]henever possible, we try to retain the existing larger trees while making a repair or create better space for larger trees in the future,” and goes on to present descriptions of alternative and innovative solutions to tree removal, mentioning the advantages and disadvantages of each process or material.
  • Springfield, Oregon, Street Trees Policy (Engineering Design Manual, Sec. 6.02.1 Existing Tree) The Policy requires the use of Best Management Practices “to save existing trees” and to minimize the stress of construction and repaving on trees.  For example, two BMPs that must be used are: A. During initial planning phases of street design, determine which trees should be saved. If 2/3 of the root system can be protected from construction, the tree shall be considered for saving. And, ” F. Design[ing] sidewalks of variable width, elevation, and direction to help save an existing tree.” The Springfield Street Tree Policy declares that “The trees saved should be an asset to the neighborhood before and after street construction.”
  • OperationStompLogo.pngwr - Operation Stomp and Save Our Nassau County Trees – “A community-based, grassroots organization [with 1400 members] based in Long Island, New York, dedicated to preserving the thousands of trees presently unprotected and at-risk lining countless County and Local Roads throughout Nassau County.” See their Fact Sheet, including a “green” Sidewalk Repair Methods page, and a Video. Contact Information: (516) 730-7619 | OperationSTOMP@gmail.com
  • Also see, e.g., Terrecon’s Rubbersidewalks; a similar product at Rubberway; and “New Rubber Sidewalks Tested in 60 Cities” (NPR, August 4, 2006).

Conclusion: As the cursory survey above shows, there are many models available to our city and community leaders, the Historic Preservation Commission,  property owners and other residents, as the City studies the issues, gathers facts and opinions, and promulgates a tree preservation policy and related laws.  This process, therefore, could take months, not years, and should be used to protect our healthy trees before ill-conceived deforestation causes literally irreparable damage. In the meantime, I hope a Deforestation Moratorium will be put in place voluntarily by the Mayor or through City Council action.

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APPENDICES

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please help save our Washington Ave. shade trees

As discussed below, the City of Schenectady plans to remove the large Washington Avenue trees that are pictured in this posting, while repaving the street and repairing the sidewalks this Spring or Summer (only the new, small, decorative trees would be left).

Click on a photo for a larger version and scroll over it for a description.

– scene on Washington Ave. showing endangered trees during the 2009 Stockade-athon –

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– trees on Washington Avenue in early April 2010 –

update: (April 15, 2010): Early this afternoon, I filed a Freedom of Information Request [FOIL], supplemented with a second Request around 4 PM, at City Hall concerning the repaving and repair of the street and sidewalks of Washington Ave. Go below the fold at the end of this posting for the wording of the FOIL request and the City’s response.

About ten days ago, at a meeting of Washington Avenue owners and residents with the City’s chief engineer, I first learned that the City of Schenectady’s engineering department was planning to remove all large trees located between the sidewalk and curb on Washington Avenue, as part of a project to repave the street and repair the sidewalks.  The trees would come down whether they were healthy or not, despite the condition of the adjoining sidewalk, as all sidewalks would be taken up and replaced regardless of their condition.   Short of fire-bombing or similar criminal or terrorist acts, nothing more drastic could be done to alter the beauty and ambiance of any neighborhood than taking down its shade trees, especially where there are sufficient trees to form a canopy over the street.  It seems especially irresponsible to perpetrate such urban deforestation in an historic district that has special protection against any change in the appearance of its streetscape.

Stockadians and lovers of the neighborhood, please pause to consider what has already happened on No. Ferry Street (for sample photos click).  Now, keep in mind that the City plans to go block by block throughout the Stockade with this paving and repairing project.  We need to change the policy before more trees are needlessly removed.

Also, note: The current plan of the Engineering Department is to remove all sidewalks, to be replaced with either tinted concrete or — at he homeowner’s request and expense — the anemic bluestone that can be seen on No. Ferry St. (at the Widow Kendall house, for example).   Existing slate will not be put back once regrading is done.  Preserving slate sidewalks is another very good reason (beyond saving trees) to ask the City to consider each stretch of sidewalk separately.

My hope is that the City will, instead — like many municipalities around the nation and world — consider all alternatives and make every reasonable effort to preserve every healthy tree.   We were told on Thursday April 1st that the requests for bids would go out in a week or two.   The City should halt the project before bids are requested, and ask the Schenectady Historic District Commission to study and make proposals about the preservation of trees (especially related to actions by the City).  I believe the Stockade Association should be on record urging the City to make every effort to preserve healthy mature trees. The Commission may initiate a study or make recommendations for new policy, laws or regulation, and it should do so, if not specifically requested by the City.

Here’s another shot taken near Front Street on Washington Avenue during the2009  Stockade-athon.  Imagine the scene without the trees:

. . Stockade-athon 2009 . . .

After saying it was impossible to keep any tree along the street due to safety and liability problems once the roots on both sides of the trees were removed for the repaving, the engineering department representative said — rather halfheartedly — that any owner who wants to try to keep his try should let him know, so he could “see what we can do.”

Is this box elder ..  . . . too ugly to live? . . .

Instead of jumping at the chance to keep his tree, the owner of the above unique, glorious and healthy tree (seen in several shots in this posting) said he was glad to have it taken down because it was ugly.  [Box elders, formally named acer negundo, is also called a maple ash.] Other owners in that row also said they would not mind having the tree taken down in front of their houses — one because it put leaves on his roof and in his gutter, and another because its branches touched the house, and it was not a very grand tree.  Of course, Historic District homeowners can’t take a shutter off the front of their homes without getting permission.   Yet, the homeowners were willing to have a large mature, healthy tree removed forever for some rather underwhelming or frivolous reasons.  Their say is apparently final according to the head of the repaving project.  The fate of these trees should clearly not be up to a single property owner.  The interests of the entire block and the whole Stockade District (perhaps with input from the Historic District Commission) must be given great weight.

One option the City has is to not take up sidewalks that do not require repair or replacement for safety reasons; another is to do less drastic root removal at sites where the sidewalk can be leveled without major root removal.  Take a look at the sidewalk along this stretch of Washington Avenue and consider whether such options might be viable in order to save a healthy tree:

. .  . .

The City is certain to claim fiscal reasons for asking construction crews to merely plow up all the sidewalks and mow down all the trees.  Of course, that assumes it’s is cheaper to do the blunderbuss approach, taking up all the sidewalks, rather than leaving significant stretches of sidewalk alone because they do not need drastic repair or because a moderately-needed repair is simply not a good enough reason to take down a mature shade tree.   More to the point in an historic district: an added expense in order to preserve an important structure, place or streetscape is considered a small price to pay to maintain the character of the district.

If you would like to help preserve our Stockade trees, please contact the mayor and the City Council members, send letters to your newspapers, and tell your friends to do the same. Here are email addresses for the Council and the Mayor:

Original List (2010):

Councilman Joseph Allen <jallen@schenectadyny.gov>
Councilwoman Barbara Blanchard <bjblanch@nycap.rr.com>
Councilman Mark Blanchfield <mblanchfield@schenectadyny.gov>

Councilman Carl Erikson <cerikson@schenectadyny.gov>
Councilwoman Denise Brucker  <dbrucker@schenectadyny.gov>
Councilman Thomas A. Della Sala <tomdellasala@aol.com>

Councilwoman Margaret King <mcking43@aol.com>
Councilman Gary McCarthy <gmccarthy@schenectadyny.gov>
Mayor Brian U. Stratton <mayor@nycap.rr.com>

Updated Contact List (March 2016):

Your comments are welcome on either side of this issue, but no personal attacks will be allowed and civility is required.

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update (May 29, 2010): Washington Avenue looks pretty good at the end of May 2010, with leaves on all the trees. Check out the posting “around the block around sunset” at suns along the Mohawk.

update (June 18, 2010):  See our post, “No. Ferry St. lessons said to cause repaving delays,” about today’s Schenectady Gazette article  “Sidewalk talks delay paving of Washington Avenue in Schenectady” [must subscribe, register for access to article], by Kathleen Moore.  follow-up (Noon, June 18, 2010): See our posting “Schenectady Needs a Tree Preservation Policy.”

– stay tuned for more commentary, news and photos at this website –

FOIL REQUEST: As noted above, I filed two Freedom of Information Law requests at City Hall on April 15, 2010, seeking the following records relevant to the repaving and repair of the street and sidewalk on Washington Avenue(April 15, 2010): Below you can find the wording of those requests with discussion of the City’s response.

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