Oct 4, 2018 | Save Craryville Letter presented to Copake Planning Board - Attorney David K. Gordon

David K. Gordon, Attorney and Counselor at Law

October 4, 2018

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:

I represent residents in the vicinity of the Craryville hamlet who have serious concerns about the GRJH gas station proposal. The proposed facility is far too large for its location at the heart of the Craryville hamlet. As such, it fails to comply with either the spirit or the letter of the town zoning law. An interstate truck stop sized gas station project could also degrade scenic vistas and threaten valuable water resources. It is incumbent upon the Planning Board to thoroughly analyze these impacts and withhold any approval unless and until the project is redesigned in conformance with the law.

Site Layout

In its significant zoning code update this year, the Town Board of the Town of Copake codified its plan for main street scale development in its hamlets. To effect this, the Town Board enacted a new Hamlet Business zoning district, and placed the section of Route 23 in Craryville in it, along with the hamlets of Copake, West Copake and Copake Falls. The stated purpose of the district is: “To allow for and promote smaller scale business, commercial, retail and service uses compatible with a main street setting.” Town Code § 232-4(B).

The proposed site plan dramatically contravenes both the black letter and the purpose of the HB zoning provision, as described in more detail below. The Board must ensure that the project is re-designed to comply with the code, as well as the intended design of the Hamlet Business district.

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1 Any new development must comply with current laws. “When a zoning law has been amended following submission of an application, but before a decision is rendered thereon by the reviewing agency, the courts are bound to apply the law as amended. . .” Jul-Bet Enterprises, LLC v Town Bd. of Town of Riverhead, 48 AD3d 567, 567 (2d Dept 2008). To comply with the code, the project would need to be significantly reconfigured.

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a. Setbacks

The current proposal violates setback requirements on all five sides of the parcel. Because the hamlet zone reflects a “main street” scale, the code requires buildings to be set closer to the street, and utilizes maximum front setbacks for buildings, in addition to the minimum setbacks. Specifically, in the Copake HB zone, buildings must be set back a minimum of 20 feet and a maximum of 50 feet.

The GRJH convenience store violates the maximum 50 foot setback on both Route 23 to the south and Craryville Road to the east. Both violations are by a very substantial margin. The smaller violation, on the Route 23 side is by close to 100 percent. On the Craryville Road side, the violations is much greater still. Accordingly in the intersection at the heart of the hamlet, the fundamental rule requiring buildings near the roadway is so thoroughly violated as to obviate the intended design, and convert it to a highway type facility.

Additionally, the proposed parking areas along in the northern and northeastern edges of the lot flatly violate the setback requirements. Under the code, side yards must be a minimum of 30 feet and rear yards a minimum of 60 feet. § 232-8(A). The driving area on the west side of the lot also violates the side yard requirement there because of the code’s particular restrictions on gas 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.” Code § 232- 16.13(B).

b. Impervious cover

The project would also violate the code restriction on impervious cover. Under the code, the maximum impervious coverage on a site in the Hamlet Business district is 50%. This includes all structures and all paved surfaces.

However, according to the Stormwater Pollution Prevention Plan (SWPPP) for the site, the impervious cover will be 43,380 sq. ft. The site plan indicates that the parcel is 68,512 sq. ft. That means that the current coverage is approximately 63%.

c. Parking

Part of the reason the current site plan is oversized is that it contains far more parking than the project needs. The new code offers a reduced parking requirement for convenience retail, mandating only 2.75 spaces per 1,000 square feet of gross floor area, plus one space per employee. Under those requirements, the proposed facility would require approximately 12-15 parking spaces, not the 45 currently on the site plan.

Reducing the parking could help the applicant create a redesigned proposal that conforms to the code.

d. Sidewalks

The new code emphasizes pedestrian amenities: “Sidewalks should be encouraged in the hamlet districts.” § 232-11(H). This echoes the Comprehensive Plan’s directive: “Make streetscape improvements like lighting, landscaping, sidewalks, pathways, gathering spaces, banners in downtown and hamlets whenever possible.” Comprehensive Plan (VI)(G)(3)(c).

Sidewalks should be added to both the Route 23 and Craryville Road sides of the lot to connect this site to the post office, church, businesses and residences. Landscaping, lighting, benches and other pedestrian amenities should be added to create the desired “main street” environment.

e. Lighting

The new zoning code requires a lighting plan with various details for all commercial sites. Code § 232-15(B). Fueling stations have additional requirements: “Lighting will be substantial but no glare shall be produced which interferes with vehicles or trespasses beyond the property line. Lights in any canopy shall be recessed.” Code § 232-16.13

The site plan includes a very basic lighting profile that lacks much of the required detail, including information about fixtures. However, even the depicted detail indicates noncompliance with the code. The lighting plan clearly shows light trespassing beyond the property line. It also shows brightness up to 20 footcandles, while the standards recommend levels of lighting no higher than 5 footcandles. § 232-15(B)(12).

The Planning Board must require a complete lighting plan and ensure that it complies with all requirements in the current code.

f. Height

The Hamlet Business district allows a maximum building height of 35 feet. The minutes of the October 2016 ZBA meeting state: “The total height of the building would be 39’.9 on the
peak.” The current elevation drawings fail to show the height of the proposed convenience store building or fueling canopy. These must be disclosed and must comply with the code.

Visual Impact

Aesthetics are an essential consideration at this location. The site is located at the primary intersection in a hamlet surrounded by scenic vistas. Drivers along Route 23 enjoy expansive views, including a picturesque hill directly to the north of the site. The Harlem Valley Rail Trail passes through the rail corridor just 400 feet south of the site, and will attract thousands of visitors when it development is complete.

It is incumbent upon the Planning Board to fully analyze the aesthetics of the project and ensure that it is consistent with its scenic surroundings. The zoning code specifically authorizes the Planning Board to require a “Visual Impact Report” when a project could have visual impacts. Code § 232-21(H)(3)(c). This report must be prepared by a registered Landscape Architect or other qualified professional and must include illustrations of the project and analysis of its impacts. Code § 232-21(H)(3)(c).

As part of its site plan review, the Planning Board must also ensure the project is compatible with the sense of neighborhood in the HB hamlet, and in particular with the shapes, proportions, materials and other features of nearby buildings. Code § 232-21(J)(18)(a). “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 all exposed (public) vantage points.” Code § 232-21(J)(18)(c). Standards for facades and roofs must be met, including by the fueling canopy. Code § 232-21(J) (18)(d),(e).

The buildings on the other corners of the crossroads include homes dating back to the 1800s and a church built in 1923. They are set near the road and surrounded by grass and trees. It is obvious that a large gas station, particularly one set back from the road with a 12-pump fueling canopy and vast parking lot in front, on an acre of pavement, would be completely out of context with the scale of the Craryville hamlet, the rural landscape and the intent of the town code.

Water Impacts

Clean water is essential to residents’ health, environmental health, and the vitality of the local agricultural industry. Gas stations are regulated as “hotspots” for water pollution, because of their potential for runoff of polutants, such as petroleum hydrocarbons, far in excess of even other commercial uses. New York State Stormwater Management Design Manual § 4.11.

In its site plan review, the Planning Board is required to ensure the “[a]dequacy of control measures to prevent ground water or surface water contamination.” § 232-21(J)(16). Both ground and surface water protection must be carefully analyzed for this site.

a. Groundwater

The site is surrounded by homes, businesses and community facilities that rely on groundwater for drinking water. On the Environmental Assessment Form, the applicant asserted, “According to the New York State Water Resource Summary prepared for Copake, the site is not located over a mapped aquifer.” That statement is inaccurate. Figure 6 of the Town of Copake Water Resource Summary shows the site overlying an “unconfined, mid yield” aquifer that lies beneath the Taghkanic Creek corridor.2

The Comprehensive Plan directs the town to “[p]romote compatible land uses over existing aquifer areas to minimize potential sources of contamination...” Comprehensive Plan § VI(C)(3)(h). The Water Resource Summary provides the aquifer mapping needed to implement that directive. The report states:

Certain land uses are inappropriate in areas that have been identified as important to a community’s drinking water supply. Towns should seek to site land uses that are potentially harmful to groundwater supplies in the least sensitive areas. Development choices along the Roeliff Jansen Kill, Taghkanic Creek, and other streams should reflect the potential sensitivity of the aquifer.

Town of Copake Water Resource Summary at 22.

A fueling station poses multiple threats of pollution. Underground fuel storage tanks would be installed that could be in the ground for decades. Surface level gasoline or chemical spills could infiltrate the soil and contaminate groundwater.

The New York State Stormwater Management Design Manual states that “stormwater runoff from hotspots cannot be allowed to infiltrate untreated into groundwater, where it may contaminate water supplies.” The SWPPP for the GRJH site indicates that 9,700 square feet, or about 22 percent, of parking lot and driveway runoff would be directed to “grass filters and landscaped areas,” instead of the stormwater treatment system. SWPPP at 9. Discharges to these vegetated areas are effectively discharges to groundwater under DEC guidelines. This contravenes the state mandate that stormwater runoff from fueling stations may not infiltrate into the ground untreated. The project should be redesigned, and/or the impervious area significantly reduced, to address this violation.

Additionally, there may be underground contamination currently on the site that could be currently leaching into groundwater and could be further mobilized during construction. Questions arose during the ZBA hearings about whether old fuel storage tanks from an earlier car dealership had ever been removed. All of this must be carefully analyzed.

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2 Available at http://townofcopake.org/site/wp-content/uploads/2013/10/Water-Resources- Summary_Copake_final.pdf (last accessed October 4, 2018).

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b. Surface runoff

According to the SWPPP the remainder of the site runoff beyond the portion that would go directly to adjacent vegetation would be routed to a hydrodynamic separator that will capture debris, sediment and oil/grease. SWPPP at 9. The outflow from the hydrodynamic separator would be directed into a catch basin along Route 23. The storm drain system flows into a DEC jurisdictional wetlands just south of Route 23 and then discharges to the Taghkanic Creek.

DEC guidelines require “a greater level of stormwater treatment for hydrocarbons, trace metals or toxicants of concern is needed at hotspot sites...” § 4.11. The mechanical device proposed by the applicants is unable to remove dissolved pollutants like salt or antifreeze. Minimally treated water containing dissolved pollutants would flow to the wetlands and the Taghkanic Creek. Furthermore, the hydrodynamic separator is designed to “bypass larger flows.” SWPPP at 9. During a prolonged rainfall, untreated runoff, including oil and gasoline, would bypass the separator and pour into the storm drain system and then into the Taghkanic Creek.

The Planning Board must carefully analyze the SWPPP not only for compliance with state law but also to assess impacts on local water resources. Town Code § 232-21(H)(3)(d). While state requirements prescribe the minimum treatment required, the Planning Board may require additional treatment to protect Copake’s waters.

It bears emphasis that the soil surrounding the Taghkanic Creek is uniquely fertile and a significant asset for the economic development of the area. There is substantial potential for increased investment in farming, including organic farming, and therefore substantial economic risk should the soil become contaminated by pollutants from the gas station. It is also worth noting that the very reason why the soil is fertile, deposition of silt from the periodic floods of the Taghkanic Creek, would become an agent of contamination should petroleum or automotive chemicals bypass the separator and be discharged to the creek during flooding periods.

Evaluation and conclusion

It is clear that the proposed site plan violates fundamental requirements of the zoning code that are meant to spur the development of Craryville hamlet as a walkable main street. The fundamental violation is clear: the project is far too large for the main street scale. This directly leads to contravention of explicit maximum cover, setbacks and stormwater requirements. The failure of the site plan to even come close to complying with maximum front yard requirements, i.e. place the building within 50 feet of the road, is also a violation of the code which renders the site dramatically inconsistent with the intent and letter of the law.

The failure of the project to comply with the code requirements and the failure to ensure that pollutants are properly handled require thorough reconfiguration of the gas station. The project must be reduced in size, and the building must be brought closer to the intersection. The entire design must be made more consistent with the downtown hamlet scale that the Town has adopted.

This project presents a stark and fundamental juncture in the development of the hamlet. With an interstate scale gas station at its heart, Craryville will never develop the type of walkable streetscape that the town has envisioned and that has helped spur the revitalization of Main Streets in the Hudson Valley. Instead, the hamlet will simply be a stop on the highway. Alternatively, the Planning Board’s careful attention to the code requirements and the project’s design could ensure that even development of the site as a gas station could be consistent with the Main Street vision that the town and its residents seek to realize.

Sincerely,

David K. Gordon, Save Craryville