Supermarket application given conditioned negative declaration

NORTH EAST — The Planning Board began to take a straw poll at its meeting on Tuesday, June 26, to indicate where it stands in terms of granting either a negative or positive declaration in the State Environmental Quality Review Act (SEQRA) process for the as-of-yet-unnamed supermarket application — until the town’s attorney intervened and gave the board an alternative option to grant a conditional finding regarding the application.The applicationMany believe the applicant, Southern Realty Development LLC (SRD), and its principal, John Joseph, will soon announce the proposed 36,000-square-foot supermarket will be a Hannaford branch.The Planning Board has been reviewing the site plan for more than a year, during which it has allowed regular public comments. It opened an official public hearing a number of months ago; that hearing remains open. The Planning Board meeting on June 26 was public, but no public comments were allowed. It was strictly for the board, the developer and their consultants to discuss the project.CorrespondenceAt the start of the meeting, Planning Board Secretary Lisa Cope confirmed with the board that she had emailed members letters received regarding the application, which were also entered into the record. Those letters were from bog turtle expert Michael Klemens, Freshtown attorney Michael Zarin and Millerton residents Arthur Moshlak and Lauren Astor.Zarin urged the board to issue a positive declaration, which means the proposal would have a significant environmental impact, and would lead to a lengthier and more detailed review.“If the Planning Board issues a positive declaration, and requires preparation of an Environmental Impact Statement [EIS], the various potentially significant environmental impacts of the project can be examined as an integrated whole, importantly along with alternatives, while giving the public and agencies the opportunity to comment with all of the relevant information before them within the structure and requirements provided by SEQRA,” Zarin wrote.Klemens, who is the chairman of the Planning and Zoning Commission in neighboring Salisbury, Conn., had been working for SRD competitor Freshtown, but resigned June 4 after his team discovered five bog turtles in Connecticut, less than a mile from the SRD site. He did so to avoid any conflicts and any questions “that my motivations are motivated by my former clients’ interests,” he stated in a letter to the Planning Board on June 12. In the June 23 letter, Klemens asks if “the development as proposed [up to 100 feet from the wetland habitat of a system that does contain bog turtles] complies with the U.S. Fish and Wildlife Recovery Plan.” He claims the applicant has not responded to such questions that he’s posed, or that have been asked by the town’s consultants: planner Will Agresta or bog turtle expert Jason Tesauro. Klemens added that assurances from the applicant’s engineer, Rich Rennia, fall flat as “Mr. Rennia is neither a biologist nor a bog turtle authority and therefore lacks the professional qualifications to opine on these highly technical resource issues.”Klemens also encouraged the Planning Board to make a positive declaration, continue its review and complete the EIS, which he said would “conclusively resolve many of the issues” before it.Moshlak’s and Astor’s letter starts off by thanking the Planning Board for its hard work and dedication. It then goes on to state the current application is too large for the town, “especially considering the fact that the site is adjacent to a very sensitive wetland which affects our drinking water.“It is our opinion that the project should be scaled back so that it is at least 300 feet away from the wetlands,” the letter stated, before suggesting the supermarket downsize from 36,000 square feet to 24,000 square feet, similar to a Hannaford in Livingston, N.Y. The pair continued that a positive declaration would “cause the project to be studied more carefully and might result in a better outcome for our town with a smaller-sized store that preserves the wetlands at the same time.”Those very issues also resonated with the members of the Planning Board that night.SEQRA, Part 2: EAFThe board went straight to work on Part 2 of the SEQRA process, the Environmental Assessment Form (EAF), which involved completing a form on the project impacts and their magnitude.Attorney to the Town Warren Replansky noted that the exercise was not to determine if the project should be approved or denied, but if there is a need for further scientific or other future studies to be done. If so, those would be done through an Environmental Impact Statement.The EAF began with a question about the project’s impact on land, and whether it would result in a physical change. The board checked yes, and determined the impact would be large. Impacts on water, water retention systems, sediment traps and so on were then discussed. Impending changes were acknowledged. Planning Board member Chip Barrett noted that many of the changes could be mitigated. The board talked about hydrology, and member Bill Kish said that the issue is an important one for the project.“We spent a lot of time at the last meeting hearing how hydrology is a major concern,” he said. “Is there a chance this conversion of the field will affect hydrology in a negative way?”Chairman Dale Culver said there’s also the impact of the wetland on the wildlife to consider, which he described as a “domino effect.”Town Engineer Ray Jurkowski interjected with a clarification.“Just because you identify a large impact it may not necessarily be significant,” he said. “You need to do an evaluation as part of Part 3 [of SEQRA] to determine its significance.”Future growth of the community was discussed. Again, Kish offered his thoughts.“I can’t predict the future,” he said, “but I would say this project would [influence future development]. This project is kind of a magnate and there is a lot of open space around.“One of the things that has come up several times is the idea of redoing the overall size of the project ... that’s one way of mitigating the impact,” he added.Agresta returned to the subject of water; he said different issues were identified: the water main; surface water; ground water; wetlands; and bog turtle habitats. He said the water main issue could be separated out of the pack, and he and Jurkowski spoke about some of the details about extending the water main from the end of the town’s water district. To do some of the work the developer will have to bore underneath the roadway.“To me is seems like a potentially large impact, but it’s hard to judge,” said Kish. “I don’t feel like I have the knowledge to do that. We have to come up with some pretty stringent guidelines.”Member Leslie Farhangi said she’s concerned with herbicides and pesticides leeching into the water supply. She’s also worried about the best way to get the developer and future tenants to comply with any guidelines the town implements.“We don’t know whose going to come in, in 10 years,” she said. “Is there any way to address that?”“These are not easy things to deal with,” Replansky said. “In the future it will need a fair amount of monitoring from the DEC [Department of Environmental Conservation].”“There are cases where records are kept available for quarterly inspections,” Culver said. “I feel if we did that it wouldn’t be sufficient,” Kish said. “I agree,” said Farhangi. “We need some mechanism in place in case there is a slip up.”“We need an enforcement arm,” agreed Culver.The board also spoke about keeping salt out of the soil and the wetlands, and hiring landscapers who will follow best practices.It then spoke specifics about the building’s size. Joseph addressed those who said the store should be smaller.“The current [Grand Union] is 27,000-square feet,” he said. “This is going to be 36,000-square feet. Anything less than that is not the right size for the market.”The developer then went on to say that the buffer, if increased by 50 feet, would “take out half of the parking lot and wipes out all of our opportunity, and we’d never meet our parking requirements.”Suggestions to acquire more land from neighboring properties also met rejection.“I can tell you it won’t work,” Joseph said. “Basil [Auto Sales and Service] doesn’t want to sell and Ken Thompson won’t sell.”During the EAF’s section on plants and animals the board discussed bog turtles and their habitats.“The recovery plan recommends a 300-foot [wetland] buffer,” said Farhangi. “It’s [up to us] whether we choose to follow that ... though it doesn’t have any enforcement behind it.”“The idea behind buffers is very species specific,” Agresta said. “They’re a way to balance between protection and letting events occur.”“We are charged with protecting their habitats,” Culver said. “And isn’t the recovery plan to help recover their numbers from becoming extinct?”Rennia said the buffer zone would be “forever wild.”The EAF also addressed impacts on aesthetic resources, historic and archaeological resources, open space and recreation, critical environmental areas, transportation, energy, noise and odor, public health and growth and character of community or neighborhood. It was on the last category, character of community, that spurred some conversation.“I do feel this is somewhat outside of the scope of the town’s comprehensive plan,” said Kish. “I don’t know why that wasn’t checked [yes on the EAF form]. This is really pushing the limits east.”“That is what the Boulevard [Zoning] District is,” said Replansky.Kish said he would check the comprehensive plan and “find some language,” and get back to the rest of the board on that detail. Talk ensued, however, and board member David Shapiro said he was tired of opponents to the supermarket application blaming it for potential future economic fallout.“We’ve had empty store fronts in this town ad nauseam,” Shapiro said. “We can’t say there will be empty store fronts because of this. That’s just business.”“I really feel every time we pop up another chain store in North East we could drive Irving Farm out of business, or we could drive Salsa Fresca out of business, or we could drive me crazy picking up another fast-food box off my lawn,” Kish said. “To me it’s not a question if other stores go out of business, but rather does it increase sprawl and other chain stores?” said Farhangi. “They said they may try to get Subway and Dunkin’ Donuts, and for me that’s more of a concern.”“Grand Union is a chain, and there are complaints overwhelmingly that it’s not a very good store, so it’s not serving the community in the way it probably should,” said Agresta. “Obviously any improvement could spawn on other improvements, if we could get the Grand Union to be improved in an appropriate way. But I don’t think we have a Walmart here.”Straw pollAs a closing to the meeting Replansky suggested the board have a “straw vote,” to give the consultants a sense of where it stands. The poll would not be binding, he emphasized.Planning Board member Stephen Valyou was the first to speak. He said a number of his concerns were addressed that night and that the applicant had “gone above and beyond.” He said no matter what the situation there would always be “some impact on the environment,” but more importantly felt the community needed a new supermarket. He said he was likely to grant a negative declaration.Before the other board members could make their statements, Jurkowski leaned over to Replansky and whispered in his ear. Moments later Replansky told the board it had another option — a conditioned negative declaration (CND). A CND is a form of negative declaration which may be used for unlisted actions only and only in limited circumstances, according to the DEC. It is “appropriate when a lead agency concludes that a proposed action may have a potentially significant adverse impact on the environment, but the impact can be eliminated or adequately mitigated by conditions imposed by the lead agency, without the need for additional environmental studies,” states the DEC website.After offering that option, all of the remaining board members took advantage of it. Member Chip Barrett said his condition was that he wanted the advanced systems for the hydrology to be monitored.Culver said due to the environmental issues, namely the wetland buffer and the system maintenance programs, he would likely vote for a positive declaration, but if they were mitigated he was willing to vote for a conditioned negative declaration.Shapiro repeated that he believed there had been extensive studies with satisfactory results, and voted a conditioned “neg-dec.”Kish said he wanted to see an increase in the wetland buffer size, and a decrease in the store’s size, or would otherwise consider a positive declaration.Farhangi echoed those sentiments and said she, too, wanted a larger buffer and smaller store.Board member Evelyn Garzetta said she gave a summation of her thoughts at the last hearing, mostly in support of the project, and therefore stood with the board in offering a conditioned negative declaration.“It’s happened before when we approve one thing and then they build another, and then we’re told we have to live with it,” Culver said after the straw poll was taken. “And I don’t think John [Joseph] wants to build something that doesn’t work. We want to find a balance, and everybody wants to respect that.”