Mar 6, 2019 | Legal Letter presented to the Livingston Planning Board – Attorney David K. Gordon

David K. Gordon

Attorney and Counselor at Law

42 Catharine Street, Suite C-106

Poughkeepsie, NY 12601

(845) 943-1142

DGORDONLAW@OPTONLINE.NET

March 6, 2019

Hon. Phil Schmidt, Chairman
Town of Livingston Planning Board Livingston Town Hall
County Route 19
Livingston, NY 12541

Re: Global Partners Gas Station

Dear Mr. Schmidt and Members of the Planning Board:

This office represents Livingston Concerned Citizens. We write regarding the proposed Global Partners gas station and truck stop at the intersection of Route 9 and 9H/23. The oversized proposed project at this sensitive location presents numerous environmental threats that demand the Planning Board’s thorough review.

The State Environmental Quality Review Act (“SEQRA”) requires a hard look at the prospective adverse environmental impact of an agency action, such as the Planning Board’s site plan approval, special use permit and subdivision review here. The courts have been clear that “[s]ince SEQRA mandates the preparation of an EIS [Environmental Impact Statement] when the proposed action may include the potential for at least one significant environmental effect, there is a relatively low threshold for the preparation of an EIS.” [1] Because of the multiple environmental impacts detailed below, it is incumbent upon the Planning Board to issue a positive declaration and prepare an environmental impact statement to ensure environmental impacts are mitigated.

Before the Planning Board completes its environmental review, it should ensure there is a complete application for agencies and the public to consider. At present, the application is not complete. The town code establishes requirements for each of the approvals the applicant is seeking: special use permit, site plan and subdivision. The applicant has provided no elevation drawings showing the size or design of the building or fueling facilities, or associated fixtures such as signs, as required to complete its site plan application. A site plan application is required to include, among other things:

Plans and elevations of all proposed buildings or structures or accessory structures, including all proposed outdoor signs.

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Munash v Town Bd. of E. Hampton, 297 AD2d 345,346 (2d Dept 2002) (emphasis in original; quotation and cite omitted); Uprose v Power Auth., 285 AD2d 603, 608 (2d Dept 2001).

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Zoning Code § 6.7(1)(f)(xiv). All site plan submittals are also necessary for a complete application for special use permit. Zoning Code § 6.6(2)(d).

Elevation drawings will be essential to review the aesthetic impacts of the project. The Planning Board must not close the public hearing or make a determination of significance until a complete application package is in place and property owners have received the requisite notice.

Remediation of existing station is part of action

SEQRA requires the Board to analyze the entire action in total. Here, that includes the thorough remediation of the existing gas station site on the south side of the intersection. “The entire set of activities or steps must be considered the action, whether the agency decision-making relates to the action as a whole or to only a part of it.” 6 NYCRR 617.3(g). The applicant’s attempt to separate the two components of the project runs contrary to New York State law, and the Planning Board must not allow it.

In its December 21, 2018 submittal to the Planning Board, the applicant’s engineer clearly described the applicant’s intentions:

The applicant (Global Partners, LP) is proposing to redevelop the existing convenience store/fueling facility on the northerly corner of the intersection of U.S. Route 9 and N.Y.S. Routes 9H and 23. . . .

The applicant is proposing to raze the existing Xtra-Mart store, tanks, canopies and other structures located on the southerly corner U.S. Route 9 and N.Y.S. Routes 9H and 23. The applicant expects to commence the demolition of the existing facilities, following the construction of a new facility on the northerly corner of the same intersection.

Just weeks later, the discussion at the January 9, 2019 Planning Board meeting reflected a slightly different intention. The minutes read: “Leave old building up at current site but remove the tanks.”

In its latest letter to the Planning Board, dated January 25, 2019, the applicant’s engineer reversed course and asked the Planning Board to ignore the old site entirely:

The existing gas station located on the southerly side of the intersection of U.S. Route 9 and N.Y.S. Route 9H & 23 is proposed to be vacated but not as a component of this proposed action. Any work on that site is completely separate from this application.

There is no question that the decommissioning and remediation of the existing facility is part of the application to develop the new facility. The applicant represented it as such.

Even if these representations had not occurred, the Planning Board has the responsibility to review the entire project, and to ensure the mitigation of its impacts. Here, the removal of the existing gas station is clearly intended as a central mitigating factor in the development of a new one on undeveloped land.

Review of the remediation plans is especially necessary where, as here, the existing gas station site presents multiple recognized environmental risks:

1. The site sits directly above a culverted stream. As described in more detail below, the wetlands adjacent to Bell’s Pond drain westward through a culvert that runs under Route 82 and directly beneath the existing gas station site before outletting to a wetland and stream that flows into to Mud Creek.

2. There are underground fuel storage tanks on the site, dating from around 1986. The project engineer reported at the February Planning Board meeting that they are likely single-walled steel tanks with asphalt coating. These present a risk of leaking, or may have already leaked.

3. There have been documented fuel spills on the site. New York State Department of Environmental Conservation (DEC)’s spill database shows two spills of diesel fuel just within the past four years. [2]

Failure to complete a thorough remediation of the site would present an ongoing risk of contamination to surface and groundwater. It could also result in a significant eyesore if the gas station is left derelict pending clean-up. Conversely, beneficial decommissioning and reclamation of the old site could mitigate the impact of the new facility.

The Planning Board’s SEQRA review, therefore, must include the entire action, including remediation of the old gas station. The Planning Board should require a Phase I environmental analysis to gather information on recognized risk factors at the site, and a Phase II review to analyze soil samples.

Any approvals ultimately granted to the new station must be contingent upon remediating the old site to allow its return to a beneficial use or clean, naturalized condition.

Water resource impacts

Both the proposed site and the existing gas station are located amidst a complex of wetlands. As hydrogeologist Paul Rubin’s Figure 2 depicts, the site of the proposed facility is wedged between Bell’s Pond, DEC wetland HS-13, and a wetland immediately to the north which is not currently regulated by DEC but is eligible for regulation because it is more than 16 acres in area, with an extension across Route 9 of more than 2 acres.

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2 See, spills #1506592 and1508928
at https://www.dec.ny.gov/cfmx/extapps/derexternal/index.cfm?pageid=2

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Indeed, virtually the entire project is within the check zone of the HS-13 wetland, which should require a field inspection to corroborate the delineation, per DEC guidance. [3] A map of wetland HS-13 and its check zone is attached as Exhibit A.

The site of the existing facility is similarly wedged between HS-13 and an unmapped extension of that wetland to the west of Route 9. The stream leading out of Bell’s Pond is apparently culverted under the existing gas station and into the wetland extension to the west, forming the headwaters of a stream. As with the site of the new facility, virtually all of the existing facility is in the check zone of HS-13.

Both the stream that runs under the existing gas station and the stream emerging from the wetlands on the northern part of the site flow into Mud Creek. Mud Creek joins the Taghkanic Creek which flows into the Claverack Creek. Claverack Creek joins Stockport Creek and enters the Hudson River in the middle of the Stockport Flats, a part of the Hudson River National Estuarine Research Reserve. The reserve is an important area both ecologically and for recreation, and is the subject of substantial research and planning into habitat restoration. [4]

Further, the New York State Department of Environmental Conservation (DEC) identifies all tributaries to the Taghkanic Creek in this area as "threatened" due to seasonally low water levels that result from the City of Hudson's withdrawals for its drinking water. Therefore, any changes flow patterns may be a concern for the trout habitat downstream. The stream adjacent to the site is Class C(t), which means it should support trout habitat. The DEC's Riparian Opportunity Assessment identifies the catchment that includes the pond and nearby areas as significantly stressed already, suggesting that restoration should be a goal, not further degradation.

It is clear that the extent of wetlands surrounding both parcels requires the strongest level of review and protection against runoff and spillage of petroleum and other contaminants from the site. It is equally evident from the investigation and review by hydrogeologist Paul Rubin that the underlying aquifer has substantial value as a potentially high yield drinking water supply. Both of these merit the highest level of protection.

The town’s comprehensive plan makes clear the value of the underlying aquifer, calling such resources the Town’s most productive groundwater sources, but also warning that sand and gravel deposits are porous, so that pollution infiltrates quickly, making such deposits highly vulnerable to contamination.

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3 According to DEC, the “check zone” is “an area around the mapped wetland in which the actual wetland may occur. If you are proposing a project that may encroach into this area, you should check with your regional DEC office to make sure where the actual wetland boundary is. If necessary, they may have a biologist come out and perform a field delineation for you to help you avoid impacts in the wetland or the regulated 100- foot buffer zone.” www.dec.ny.gov/gis/erm/checkZone.html.

4 The 2013 HREP “Hudson River Estuary Habitat Restoration Plan” is available at: www.dec.ny.gov/docs/remediation_hudson_pdf/hrhrp.pdf.

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As a result, the risks of polluted runoff contaminating adjacent wetlands and groundwater must be carefully considered. This highly sensitive location may not be an appropriate location for a fueling station, especially one with of this size and intensity. If the project is allowed to proceed, for example at a reduced scale, protection and mitigation measures must be incorporated into the Stormwater Pollution Prevention Plan (SWPPP). Although stormwater control is overseen by NYS DEC, individual SWPPPs are typically certified by the applicant’s engineer and rarely reviewed by NYS DEC. The applicant asserted that it does not intend to even submit their SWPPP to NYS DEC until after the Planning Board’s site plan approval. [5]

It is necessary for the Planning Board to require the applicant to develop and submit the SWPPP for review before a declaration of significance and site plan approval. It is the Planning Board’s job to the ensure that the SWPPP adequately protects local water resources, particularly in light of Mr. Rubin’s and the comprehensive plan’s warnings about the sensitivity and importance of the aquifer.

The applicant is proposing to construct 1.75 acres of asphalt and other impervious surface on the site. Precipitation that falls on those hard surfaces will pick up spilled fuel, oils, automotive chemicals, salt, trash and other contaminants. The applicant proposes to collect that stormwater runoff, run it through mechanical devices, and then discharge it to a basin where it will infiltrate into the groundwater. The treatment system must be carefully analyzed.

The Board’s engineer has already asked for documentation of whether NYS DEC approves this treatment system for “hotspots” of potential contamination, like gas stations. The applicant has not yet provided any such documentation. Additionally, the Planning Board should consider the efficacy of the system proposed. It appears that the hydrodynamic separator will allow the miscible components of hydrocarbons to pass through, and in heavy rain the runoff will bypass treatment, discharging polluted stormwater. As the lead agency, the Planning Board has a responsibility to assess the project’s risks of water pollution, and groundtruth the applicant’s claims of mitigation.

Additionally, as discussed above, the existing gas station is located atop a culverted stream that feeds Mud Creek. There are aging tanks below ground in unknown condition, as well as a history of spills. Adding a new gas station multiplies the environmental risk already present at the intersection. It is essential that the old gas station is thoroughly remediated to mitigate that risk.

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5 The project engineer’s January 25 letter stated: “It should be noted that the applicant will provide a submission to NYSDEC, in the form of a notice of intent, following Town Engineer review and Planning Board site plan approval.”

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Visual and community character impacts

The oversized gas station and truck stop also presents substantial impacts to aesthetics and community character at this key intersection of state routes. The intersection is highly visible, with over 5,000 cars passing on Route 9 and over 7,000 on Route 9H/23 on an average day. [6] Drivers enjoy pastoral views, including fields and horse paddocks. While the southern portion of the Route 9 and 9H/23 intersection is developed, the proposed site is currently a grassy field. Its development as a gas station/truck stop would create a material change.

The Planning Board currently has no means of evaluating the visual impact of the new facility because the applicant has not provided any elevation drawings. [7] Elevations of all buildings and appurtenances must be provided before review can continue.

What is known is that the proposed facility would be very large and visible. The proposed building would be 4,800 square feet, about 62% larger than the existing gas station building. (Contrary to the applicant’s statement at the February meeting that it would be one third larger.) It would also be taller, at an estimated 25 feet in height. [8] The facility would have two fueling canopies, with a primary canopy accommodating 16 fueling locations, again larger than the current gas station.

Of greater concern, the new facility is designed for significant semi truck traffic. It would provide two fueling stations for large trucks, as well as potentially truck parking. A truck stop facility would materially change the character of the crossroads. As there is no way to mitigate this impact, the truck facilities should be eliminated from the project.

The aesthetic impact is compounded by the layout of the site, which currently fails to meet the requirements of the zoning code. The site plan shows ten of the required parking spaces within the 40-foot front yard setback on the Route 9H/23 side. The zoning code’s definition for Required Yard states that it must “extend[] open and unobstructed from the ground upward.” Zoning Code § 1.3. Therefore, the plan must be revised to remove parking spaces from this highly visible part of the site.

As the comments of TRM Environmental Consultants detail, before the site layout can be finalized, the applicant must also correct the sizing of the water and wastewater systems. The current design shows both water and wastewater sizing at approximately half what the standards dictate. TRM also pointed out that the well and septic leach fields should be separated by 200 feet, and the current design fails to meet that standard.

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6 NYS Department of Transportation traffic data, at https://www.dot.ny.gov/tdv

7 It is not clear when or if the applicant intended to provide elevation drawings of the building. When asked about details for how the facility’s sign would be lit, the applicant’s engineer answered: “Specific sign plans will be provided for the Town Code Enforcement staff to review, by the sign vendor, concurrent with the application for building permit.” January 25, 2019 Bohler letter. This is contrary to the zoning code which requires sign elevations in the site plan submittal.

8 Site Plan Sheet 4.

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Light pollution presents an additional concern. The Planning Board’s engineer has already called attention to the intensity and spillover of the proposed lighting. These impacts must be carefully reviewed. Consideration should include not only the intensity of the light but also the operating hours of the facility.

The new facility would be visible not only to passing cars, but also to patrons of the adjacent horse farm. An adjacent wedding venue, which commands a stunning view over Bell’s Pond, may also suffer from the gas station within its viewshed. An overly large and overly lit gas station will mar the views from these economically productive facilities that benefit the community. A site plan cannot be approved if the project will “unreasonably affect” the value of neighboring property. Zoning Code § 6.7(1)(d).

A final, and substantial, risk to community character is presented by the uncertain fate of the existing gas station. If there is not an enforceable plan in place to remediate the old station, the community risks being left with an abandoned eyesore that cannot be redeveloped.

Traffic safety

In addition, a thorough traffic safety assessment is needed. This busy intersection already has multiple turning motions. The proposed project would add three new driveways, including two in close proximity on Route 9H/23. One driveway would be very close to the entrance to the horse farm across the street and could cause traffic conflicts and delays. The truck turn exhibit on page 13 of the site plan set shows turning motions that require trucks to cross lanes of traffic to get in and out of the gas station. The Planning Board must carefully review the layout to ensure unsafe conditions are not created.

Conclusion

These comments represent a preliminary summary of some of the myriad impacts this oversized facility presents in a location with special ecological and aesthetic sensitivities. Given the potential for adverse impact, a positive declaration and draft environmental impact statement are clearly warranted. The protection of the public envisioned by SEQRA and the accurate analysis of environmental impact require the inquiry embodied in an environmental impact statement.

Sincerely,

David Gordon