Citizen takes town to court over water tank plan

NEW SCOTLAND — A neighbor of the future Kensington Woods housing development is suing the town after the zoning and planning boards permitted plans for a 100-foot water tower to advance.

On Dec. 31, William Cade, a lawyer who lives on Hilton Road near the old Tall Timbers golf course, filed an Article 78 lawsuit, which allows citizens to challenge government.  Plans have been underway since 2005 to build a 169-house development on the site of the old golf course.

The proposed site for the tower is about 400 feet from Cade’s property, the suit says, and he submitted to the town a petition signed by 98 people who live in the area and oppose a variance to allow for the water tower.  The town’s zoning code allows for a maximum of 45 feet, roughly half the height of the proposed tower.

New Scotland’s supervisor, Thomas Dolin, says the town is obligated to uphold the decisions made by its planning and zoning boards, and that the approval of the tower was based largely on input from the county’s health department.

About half-a-dozen residents from the Hilton Road area came to the planning board’s Dec. 1 meeting, most of them expressing concern over the scarcity of water in that part of town and increased traffic on an already stressed road.  Denise Garrah told the board that the planned water tower look like a marshmallow on sticks.

Later that night, the planning board granted approval of Garrison Projects’ plan for Kensington Woods and, on Dec. 22, the zoning board granted a height variance to allow for the water tower.

“Both respondent boards violated the basic procedures mandated for a SEQRA review,” says the suit, referring to the State Environmental Quality Review Act procedures required of a project of this size.  “…Their procedural errors resulted in a substantive failure, for each board failed to take a hard look at an alternative design for the water storage system, which would have eliminated the adverse visual impact arising out of the construction of the challenged 101-foot-high storage water tower, and failed to consider the cumulative impact arising out of the excess capacity of the water system to service a potential commercial development.”

Cade’s lawyer, Peter Lynch, argues that municipal boards did not properly coordinate over the course of the lengthy planning process, thereby violating SEQR requirements.  “Both the planning board and ZBA acted as if their respective approvals for the project were independent issues, and thus failed to comport with the SEQRA mandate that all of the relevant issues be addressed as part of the same SEQRA review process,” reads a section of the suit, arguing that the town’s review of the project had been “segmented.”

Lynch also argues that the zoning and planning boards did not undertake the scrutiny required by SEQR before making their decisions.  They did not consider alternative engineering designs, as required by SEQR, for a water storage system that could have eliminated the tower, Lynch wrote.  He presented the zoning board with a brief survey of an alternative system from Kenneth Fraser and Associates, an engineering firm.

“There are variations that can be considered for projects that have site constraints which would make the proposed system either undesirable or too costly to construct,” the Rensselaer-based firm wrote regarding the water tower proposal.  “Given that there are practical limitations on how tall a tank can be and that visual impacts sometimes preclude the siting of a tank, there are systems that utilize a system of pumps to generate the necessary system pressures and flows.”  It goes on to say that pump systems are “typical of many that are in use in the Capital District and provide the same level of municipal water supply as the system that includes an elevated tank.”

In a letter addressed to Keith Menia, an engineer for Stantec Consulting, the town’s engineer, Thomas Brady, of the county’s health department, wrote that his office “will not endorse any type of hydro pneumatic system.”  He went on to write, “The best and preferred water storage option is an elevated water storage tank.”

At the zoning board’s meeting on Dec. 22, Lynch argues in the suit, Menia had told the board that the health department had “rejected the use of any hydro pneumatic system for this project… it is clear that DOH indicated they would not ‘endorse’ this alternative system; this is not, however, the same as an affirmative rejection of an alternative water system for the project.”

Lynch concludes, “It is clear that the consulting engineer misled the ZBA that the DOH had already rejected the type of system proposed by Fraser.”

Menia chose not to comment yesterday when asked about the meeting, citing the pending lawsuit.

“On December 29, 2009, I spoke to Thomas J. Brady, who confirmed that he had issued the Dec. 11, 2009 letter without consideration of the visual impact the tower may have on the view from the Helderberg escarpment, and [that] he had not considered the design proposals set fourth in the Fraser report,” Lynch wrote.

Brady could not be reached for comment yesterday.

After a meeting on Monday, in a session closed to the public, the town board voted to retain Jeffrey Baker, the new attorney for the zoning and planning boards, to defend the town in this case.

“I think we have an obligation to try and uphold the findings of those boards, Supervisor Dolin said yesterday.  “It’s not so much a question of defending our choice… it seems to be the Department of Health’s decision.  We’re doing what the health department told us to do,” he said.

“They did what they needed to do,” Baker said yesterday of the boards’ decisions.  “Even if he came up with an alternative, it’s not his decision to make,” Baker said of Cade’s proposal for a different water system.  “It’s the zoning and planning boards’.”  Baker is confident that the Environmental Impact Statement fully examined the water tower.

SEQR requires that a draft Environmental Impact Statement address “any growth-inducing aspects of the proposed action.”  The proposed water system has the capacity for the 169-house subdivision and 132 additional taps, the suit says.

“Neither the planning board, nor the zoning board, considered the cumulative environmental impact arising out of the excess capacity of the water storage tower system, and its corresponding growth inducing impact on commercial development of lands in close proximity of the site,” Lynch writes.

The project’s final Environmental Impact Statement includes a statement from resident Edie Abrams that says, “The DEIS says that the Kensington Woods development ‘is not expected to promote further growth… particularly with respect to the potential impact from the creation of additional water and sewer facilities.’  This idea that the water is only for this project; that is a very disingenuous statement because we know even though they might provide infrastructure just to this project, we know that this project has enough water for lots more.  Everyone knows that the town is counting on a development on this property to expand water into the commercial district and probably to surrounding housing developments or houses, too.”

One of the responses referenced after the comment reads, “This is an issue the applicant will discuss with the town and planning board during the subdivision and site plan review of the project, but it does not relate to the impacts of the project.  Nonetheless, it is recognized that the development of the infrastructure for the project will provide the town with an important and valuable resource for future use.”