Jan 3, 2018 | Save Craryville Letter presented to Copake Planning Board - Assoc. Attorney Emily Svenson

DAVID K. GORDON, Attorney and Counselor at Law


January 3, 2019

Hon. Robert Haight, Chairman Town of Copake Planning Board 230 Mt. View Road
Copake, New York 12516

Re: GRJH Gas Station Proposal

Dear Mr. Haight and Members of the Planning Board:

This office represents the citizens group Save Craryville. We write to further comment on the GRJH gas station proposal, based on the plan set dated December 21, 2018.

While the applicant has made some adjustments, significant issues remain. At a fundamental level, the proposed convenience store, at over 3,200 square feet and 29 feet high, remains simply too large for this site. The oversized use results in a building that is out of scale in the hamlet, and a site layout that strains the capacity of the site, resulting in zoning violations.

At the last Planning Board meeting, there was discussion suggesting that a large building is the applicant’s right under the zoning code. It is important to correct that misapprehension. Building scale is controlled by compatibility with the existing hamlet as well as the constraints of the site. The “Commercial Design Standards” in the code state: “Building Scale. The scale and mass of buildings shall be reviewed by the Planning Board during Site Plan Review and determined to be compatible with that of adjacent and nearby buildings as viewed from the all exposed (public) vantage points.” Town Code § 232-21(J)(18)(c). Also: “New development should be similar in context and compatible with existing development.” § 232-21(J)(18)(a). The proposed building is too large and must be reduced to fit the site context, which is a rural hamlet characterized by buildings from the early 20th century and before.

Another core issue is that the project presents a serious risk of contamination at a highly vulnerable location. The development site sits above an aquifer that supplies local residents with drinking water, and drains directly into tributaries of the Taghkanic Creek. The Board should undertake a thorough assessment to determine if it is viable to locate a fueling station at this location while protecting public safety and environmental health.

We offer the following specific comments.

Current modifications to the plan

The applicant has made welcome changes to the plans, but additional controls are needed.

1. Number of fuel pumps

In its comments at the December meeting, the Planning Board appropriately recognized that the fueling area must be limited to six fueling positions, not the twelve that were shown in earlier plans. The limitation of six fueling positions reflects the scale originally described in the applicant’s Environmental Assessment Form upon which the Zoning Board of Appeals (“ZBA”) based its SEQRA review.1

The new plans show six pumps and “6 spaces.” It is important to ensure this reflects a limit of six fueling positions. If any approvals are issued for this project, the Board must limit the project to six fueling positions and should attach an explicit condition or place a clear specification on the plan.

2. Restaurant

A prior version of the plans showed a restaurant use, with kitchen and dining area, which was not approved through the Special Use Permit or analyzed under SEQRA. The new plans no longer show a dining area, but there is still a 425 square foot kitchen and a 95 square foot storage room that appears to contain two refrigerators. The dining area has been replaced with additional merchandise area, for a total of 2,022 square feet of merchandise floor.

The kitchen and food storage should be removed and the merchandise area appropriately sized for a convenience store use only. This will result in a reduced building size, with other collateral benefits for the suitability of the building in the neighborhood.

3. Roof Style

Save Craryville raised a concern that the roof shape originally proposed did not meet the zoning code requirement for compatibility with the architecture prevalent in the area.
§ 232-21(J)(18)(a)[1]. The roof shape in the new plans is a significant improvement, because it is a gable design that reflects local architectural style.

However, as noted above, the building size remains too large, and should be reduced to comply with building scale requirements. § 232-21(J)(18)(c). This requires reducing the footprint and scaling the roof proportions to match.


1 In the Short Environmental Assessment form, see Project Description: “The development would
include three fuel pump islands, with two fueling stations located at each island. In addition, 48 parking spaces would be provided with 6 spaces located at the fuel pump islands.” Also, see Endnote #2 on traffic: “According to Table 1 of the Short Environmental Assessment Form (SEAF) Workbook, a gas station with convenience store and seven or less fueling stations is not likely to exceed 100 peak hour vehicle trips.” The DEC workbook referenced in that footnote refers to a maximum of seven “fueling positions.” Further, the sketch plan submitted in October 2016 showed “6 spaces” at the pumps.


Further, architectural and roof style requirements should be applied to the fueling canopy.

Remaining code compliance issues

The following non-compliance issues have been raised previously but have not yet been addressed.

1. Setbacks

The zoning code has a specific setback requirement for vehicle fueling stations: “The area for use by motor vehicles, except access drives thereto, as well as any structures, shall not encroach on any dimensional requirements in Section 232-8A.” § 232-16.13(B).

The new plans still show a parking space within the required 20-foot front yard setback near Craryville Road, and five parking spaces and a driving lane within the required 30- foot side yard setback. These must be removed to comply with the vehicle fueling station provisions.2

These encroachments further demonstrate the necessity of reducing the size of the facility to suit the confines of the site.

2. Façade

The zoning code requires: “Buildings shall be designed so that entrance doors and windows, rather than blank walls, garages, side walls or storage areas, face the street.” § 232-21(J)(18)(b)[1]. The east face of the building, facing Craryville Road, should include an entrance door.

3. Sign

The zoning code prescribes a maximum size of 24 square feet for a freestanding business sign. § 232-14(D). The sign sketch on the Site Landscape and Lighting Plan shows a 36 square foot sign including the framing. Accordingly, the size must be reduced.

4. Screening

As part of its site plan review, the Planning Board must ensure the “[a]dequacy, type and arrangement of trees, shrubs and other landscaping constituting a visual and/or noise buffer between the applicant's and adjoining lands.” § 232-21(J)(7). The project should be screened with native trees and plants on all sides of the project. The current plans reflect no plantings at all on the northeastern property line – where the applicant proposes


2 The driving lane is not permitted in the side setback. The code’s allowance for access roads is clearly a concession to their need to cross the front setback to allow ingress from the roadway to the property, not a general permission to create driving lanes next to adjacent properties.


the driving lane. Moving the driving lane out of the 30-foot side yard setback will provide space for plantings on that side.

5. Lighting

The lighting plan for the site requires careful review to avoid bright, glaring light that would destroy the rural character of the area. The lighting standards in the zoning code cap the brightness of lighting at 5 footcandles. § 232-15(B)(12). However, the Site Landscape and Lighting Plan shows intensity up to 20 footcandles. Also, the light poles must comply with the requirements in section 232-15(B)(10), fourteen (14) feet in pedestrian areas and eighteen (18) feet in areas of vehicular use (parking lots and drive aisles). Further, the special requirements for canopies in section 232-15(D) must be applied, including: “All lighting from the canopy must be substantially confined to the ground area beneath the perimeter of the canopy.” The plans currently do not show a light contour model for the canopy lighting.

6. Sidewalks

Sidewalks are essential to encourage walking, which is itself necessary to a functional hamlet. The zoning code states: “Sidewalks should be encouraged in the hamlet districts.” § 232-11(H). This implements the Comprehensive Plan’s directive: “Make streetscape improvements like lighting, landscaping, sidewalks, pathways, gathering spaces, banners in downtown and hamlets whenever possible.” (VI)(G)(3)(c). The plan shows the location of a “future sidewalk.” This sidewalk, along with the connecting path to the front door, should be installed as part of the current site plan.

Adding a sidewalk will allow safe passage between the post office, church, market and nearby residences. It will also help create a main street atmosphere, which causes traffic to naturally slow. The sidewalk should be enhanced with appropriate pedestrian infrastructure, such as pedestrian-level lighting, benches and shade trees.

Soil and water pollution risks

Significant concerns remain about the environmental safety of the site. The Planning Board should require further studies and retain an independent engineer to analyze the following issues.

1. Potential subsurface contaminants

Serious concerns about the subsurface soil at the site remain unresolved. These concerns stem from the previous use of the site as an automotive dealership. There is no evidence that any thorough examination, either by a records review or by physical testing, has been done to determine whether old fuel tanks or contaminated soil lie beneath the property.

Throughout this Board’s review of the project, Board members have repeatedly asked whether soil testing has been done and whether a Phase I Environmental Site Assessment was completed. See, e.g., Planning Board minutes from Sept. 1, 2016; Nov. 3, 2016; Dec. 1, 2016; Mar. 1, 2018; and May 3, 2018. For example, at the May 3, 2018 meeting: “Mr. Grant questioned whether a Phase I was done during the ZBA process inasmuch as they are the Lead Agency. Ms. DeConti acknowledged that there was a Phase I done at that time and presented the document to the Board.”

Save Craryville recently submitted a Freedom of Information Request for the Phase I Environmental Site Assessment. They received a single document, a report by Alpine Environmental Services, dated July 2004. The document is titled “Report of Phase I Environmental Site Assessment – Former Supermarket.” The document covers only asbestos issues in the former supermarket, including an “asbestos pre-demolition inspection” and asbestos handling protocols.

The report does not address the condition of the site aside from the building itself. It gives no indication of the status of the soil and water beneath the site.

The Board should reassert its repeatedly-expressed concerns about subsurface conditions, and require the applicant to produce a Phase I report addressing the potential subsurface contamination. The report should be followed up with soil testing if necessary to ensure public safety. If contamination exists on the site, it must be remediated.

2. Future contamination risk

The proposed site is highly sensitive, presenting risks of fuel or other chemicals contaminating both groundwater and surface water. Independent study is needed to determine whether a fueling facility can safely be located on this site.

As we noted in our October 4, 2018 letter, the site is directly over an “unconfined, mid yield” aquifer that lies beneath the Taghkanic Creek corridor. See Figure 6 of the Town of Copake Water Resource Summary. This was not considered during the SEQRA review, in which the applicant incorrectly stated that the site was not located over a mapped aquifer. The Town’s Water Resource Summary states that “land uses that are potentially harmful to groundwater supplies” should be sited in the “least sensitive areas.” A fueling station presents an unacceptable risk atop an aquifer that provides the sole source of well water to homes and businesses.

Similarly, the site would discharge stormwater to sensitive waters, risking contamination of surface water as well. The plans for the site show discharge of stormwater under Route 23 to a DEC jurisdictional wetland that flows into the Taghkanic Creek. The Planning Board must carefully examine the proposed stormwater treatment system to determine if it would adequately protect water resources and public health.

Given the importance of these issues, and their technical nature, the Planning Board should obtain an independent engineering consultant to assess the risks and determine whether this facility can be safely sited at this location.

3. Stormwater and wastewater management

The new plans submitted in November and December 2018 show a significantly different site layout than the earlier version. The applicant should produce an updated Stormwater Pollution Prevention Plan (SWPPP) for the Board’s review. The new SWPPP should account for the new runoff patterns of the reconfigured site and should demonstrate whether the culverts under Route 23 can accommodate the runoff volume.

The Board should also analyze whether the proposed septic leachfield location is appropriate. During the recent wet weather, standing water has been visible in the area designated. This suggests that it would not be an effective leachfield site.

Additionally, the Board should ascertain whether locating the leachfield so close to Route 23 presents a risk that leachate could enter the stormwater drainage system.


Changes to the project have resulted in some improvements, but significant issues remain before the project is compliant with the code and compatible with the community. The Planning Board should require a smaller building and additional site modifications to meet the requirements of the zoning code and the goals of Copake’s comprehensive plan.

We reiterate our request that the Planning Board require a Visual Impact Report to fully

analyze the compatibility of the site with its hamlet context. § 232-21(H)(3)(c). This type of report “visually illustrates and evaluates the relationship of proposed new structures . . . to pre-existing structures in terms of visual character and intensity/scale of use.” This report will provide the Planning Board with critical information to ensure the project is modified to suit the Craryville hamlet.

Additionally, the potential for contamination of adjacent soil and water resources requires professional review. The Planning Board should retain one or more consultants as

authorized under section 232-27 to perform this analysis.
Thank you for your attention to these matters. Please contact our office with any questions.


Emily B. Svenson Associate Attorney

Save Craryville