Domna Candido
Re: Hudson National Solar Project and HNGC Course Restoration Project -Public Concerns re Withdrawals of HNGC Pending Solar Applications and Bypassing Planning Board Review
To: Manager Healy, Mayor Pugh, and Board of Trustees:
Thank you for your January 4, 2023 response addressing my concerns that as joint applicant with Matrix Development LLC, Hudson National Golf Club (HNGC) was also required to formally withdraw its Application for a Special Permit for the Tier 3 Solar Array. However, as I discuss below and as I indicated to you in my earlier reply email to you today, to date, it has not and further action needs to be taken.
Also, please note:
In addition, since it has come to my attention that a Revised Application and EAF for the HNGC/Matrix Solar Project was submitted on January 5, 2022 (which is on the Project Page), showing Prickly Pear Solar LLC as an additional Applicant and Sponsor of the HNGC/Matrix Solar Project. I believe that we should also be receiving a complete withdrawal submitted by Prickly Pear Solar LLC before anyone can assume that there is no Special Permit Application currently on the HNGC “property.”
As you are aware, according to each of the Part 1 EAF’s that were submitted and uploaded in connection with this Solar Project, HNGC also filed an Application to Amend its existing Special Permit to Subdivide the 15+ acres. Both of those Applications relating to Special Permits were made to the Village Board.
In addition, a Site Plan Approval, Subdivision Approval, Steep Slope Permit, Tree Removal Permit and Stormwater Permits were the list of approvals and permits directed to the Planning Board.
However, ironically, the application that you specifically concede and identify as the one HNGC needed to withdraw as joint applicant, i.e., the Special Permit Application for the Solar Array itself under the Village’s Solar Law, is the one application it did NOT withdraw! But, for some reason, in correspondence to me, as well as communication now posted publicly with representations to Residents of Croton and which appears on the Agenda for tonight’s Board of Trustees Meeting, you, on behalf of this Village Administration, are saying that it did!
If you review the list above and compare it to what HNGC has actually referenced in its withdrawal letter, you will see that HNGC mentions its Application to Amend its existing Special Permit to Subdivide the 15+ acres twice in different ways, i.e., as “application to the Village Board for subdivision,” and as “special permit amendment.” However, it doesn’t matter how many times they do that, it is still the same ONE application to amend the pre-existing Special Permit HNGC already had… but it does NOT withdraw the very important “Application for a Special Permit for the Tier 3 Solar Array”! So, HNGC still needs to withdraw that!
Likewise, as your email to me regarding HNGC’s withdrawal letter tracks the same information, you also mention HNGC’s subdivision amendment twice, i.e. “application for subdivision of the golf club property” and “application for amending the existing special permit,” in your email, but you make no specific mention of any withdrawal of the Special Permit Application for the Solar Array. That makes your statement asserting that there is a “letter from HNGC withdrawing each of the pending applications relating to the solar array” initially incorrect… but to the extent that you are aware that is incorrect and still standing by it, your statement is false and misleading! Consequently, the statement in your letter now posted on the Village site for the Board of Trustees Meeting tonight stating that “HNGC submitted letter[s] to formally withdraw [its] special permit applications” is also false and misleading and should not be displayed publicly until HNGC revises its withdrawal letter. That is particularly so since I left you a voicemail letting you know that your representation was not accurate and by your email this morning it appears that you have chosen to dig your heels in and stand by it.
Importance of Withdrawal Language
I believe it’s important that this issue regarding accurate language in these letters is addressed so that it is clear what is being withdrawn because much about how this HNGC/Matrix Solar Project has been handled for the past 2 years has destroyed trust in the “leadership” of this Village… which, frankly, has not really seemed like leadership in the best interest of the Village of Croton and its Residents, but a non-transparent operation to serve the interests of HNGC, most often with the assistance of our Village Attorney (former attorney for HNGC)!
The underlying circumstances and actual sincerity of these withdrawals themselves are being questioned … and definitely the motive behind them, as it is obvious to many who attended and watched the recent 12/7/22 Water Control Commission (WCC) Meeting that HNGC’s interest in bypassing the oversight, scrutiny and Approval Authority of the Planning Board in connection with its latest Course Restoration Project definitely is playing no small role in the precarious timing of all of this.
It is obvious that these Solar Project withdrawals seemed to have hurriedly come about after the 12/7/22 WCC Meeting at which HNGC started out trying to make it seem as if it was just innocently requesting a Wetlands Permit in connection with a small scaled project for which it was not revealing much detailed information. To further that cause along, it appears that our Village Attorney proactively advocated on behalf of her former client HNGC, coming with prepared research to that meeting, saying that their proposed project was just regular “maintenance and repair.” She then unilaterally downgraded the classification of HNGC’s project to a Type 2 Action so that no further SEQRA inquiries would be made.
However, HNGC’s Golf Course Superintendent indicated this is a full-blown course restoration project! And, after the exchange at that meeting when Croton Resident, Steve Varvaro, rightly concerned about proper Village oversight of these extensive activities, particularly in light of HNGC’s history of causing flooding and drainage issues for many, brought up the known statutory provision in the Wetlands Law (a provision that is actually printed right on the Wetlands Permit Application) that existing Special Permit and Subdivision Applications on HNGC’s property would establish Approval Authority over the Course Restoration project, not in the WCC or our Village Engineer, but in our Planning Board, our Village Attorney did not seem inclined to allow the Planning Board to be able to review this project!
At first, she seemed blindsided that a resident brought up this provision, then attempted to say that it didn’t apply based on some irrelevant facts, then she said that she would need to look into it. The fact that it appears that our Village Attorney most likely had a role in how this is now playing out and may be assisting her former client in doing so, as she assisted them many times over the last 2+ years during the tainted vetting process for the Solar Project, because HNGC’s preference is to be before the WCC and wants to avoid the Planning Board is not comforting and not acceptable! What is shocking is how blatantly her role as proactive advocate (advocating as if stepping into the shoes of their own attorney in connection with both the change of Action classification to a Type 2 Action, as well as these after-the-fact suspicious withdrawals of the Solar Applications!) for the interests of HNGC were displayed for all to see at that 12/7/22 WCC meeting. All, including our Deputy Mayor Ann Gallelli and Trustee Simon, both of whom are the Village Board liaisons to the WCC, and who were in attendance and neither of whom did or said anything relating to these over the line actions, just like they did and said nothing when similar HNGC advocacy had been on display in the past relating to the HNGC Solar project.
Neither of these two actions on our Village Attorney’s part are in the best interests of her current client, the Village, its resident, their properties, our natural resources for which the Village is mandated by our Village Laws and SEQRA to be stewards. And, as a result, there is a heavy dose of skepticism regarding the motivation behind these withdrawals and how this might all play out going forward. There has not been an appropriate Denial of the Solar Applications, and these alleged “withdrawals” that currently have been not been satisfactorily completed despite several rounds are still insufficient for their stated purpose. Residents do not doubt that such applications might be resubmitted in the future with full support of this Village Attorney, Village Board and Pugh Administration.
As such, any resistance by you, our Village Attorney, this Administration, Village Board or Mayor to refuse to have HNGC revise and resubmit its withdrawal to include proper withdrawal of its still pending Application for a Special Permit for the Tier 3 Solar Array will be seen in that light.
It will also be assumed that by not obtaining full withdrawal of all of the applications and approvals from all relevant parties, you are conceding that the still pending HNGC Special Permit Application for the Solar Array, and, possibly, any still pending applications in the name of Prickly Pear Solar LLC could serve as a valid basis for the Planning Board to be the Approving Authority for HNGC’s current application for its Wetlands Permit under that provision of the Wetlands Law, and other relevant permits and laws, that you have unbelievably indicated that both you and Village Attorney Whitehead allegedly knew nothing about!
Confidence and Trust can only come with Truth and Integrity and that’s been in short supply on every level in connection with these HNGC matters, even when dealing with our own Village Officials and Village Attorney.
There are many laws, codes and plans in place, both on the Village and NY State level to protect the values and best interests of our Village and Residents, particularly relating to land use and environmental issues that are exceedingly important relating to our goals in protecting natural resources, as well as protecting our residents and their properties from the damage and destruction that can ensue from ignoring those processes. HNGC has a history of engaging in actions resulting in damage to neighboring properties… and our Village Administrations have a history of not enforcing our laws to protect our residents from HNGC’s violations or imposing penalties against HNGC for violating our laws.
But in recent years, it seems that when it comes to projects relating to HNGC, it appears that more effort is used by this Pugh Administration, including with the assistance, direction or advice of our Village Attorney (former attorney for HNGC), to circumvent those laws and the best practice processes that were long ago put in place to effectuate those laws that other municipalities follow, but that this Administration seems comfortable willfully ignoring with eyes set on other objectives… the least of which is the health, safety and protection of its own residents and their properties!
For over 2 years there was much false and misleading information submitted in the HNGC/Matrix Application and supporting documentation, in-person comments and representations, and in replies, etc. by HNGC, Matrix, its representatives, so-called “experts,” its Licensed Certified Engineer (who is subject to NYS Ethics Regulations not to misrepresent to municipalities and which indicates that his primary duty is to the health and safety of the Public) etc., as well as apparent rubber-stamping by Chazen (some even self-admitted at one point), all brought to the attention of this Administration, Village Board and Village Attorney who turned a blind eye and kept pushing for approval of the ill-advised, ill-conceived solar project on the steep slope site that would not have even survived past square one in most other municipalities, including the Town of Cortlandt under their Solar Law. Incomprehensibly, our Village Board and Village Attorney seemed absolutely comfortable doing that notwithstanding the fact that the HNGC/Matrix Application specifically indicates that the Applicants’ intention was to obtain NYSERDA funding based on that Application fraught with false and misleading information, a deceptive view study and other misrepresentations!!
There were also issues of false and misleading statements and misrepresentations coming from our Village Attorney to her own clients, individual Trustees, as well as to the whole Village Board, itself. Residents heard firsthand that the Village Attorney, on multiple occasions, misrepresented what SEQRA stated, blatantly stated just the opposite of what SEQRA stated, and at times just seemed to make things up as she was going along when asked direct questions by Trustees relating to application of the SEQRA process in vetting the HNGC/Matrix Solar Application documents.
It is NOT true that SEQRA does not allow the Board to obtain outside assistance to understand the provisions of SEQRA when, in fact, SEQRA states that it encourages the Board to be able to avail itself of such assistance to determine what SEQRA is referencing in its questions and what types of things the Board should be considering when it is answering the questions on the EAF Parts 2 & 3 and needing to be fulfilling its responsibilities to determine “significance” and all possible significant environmental adverse impacts.
It IS true that SEQRA requires the Board to ensure accuracy of the facts contained in Applicant’s submitted EAF and that when asked by a Board member why the Village Attorney was not recommending that the Board fulfill that responsibility by going back to address all of the false and misleading statements pointed out by Residents, SEQRA does not appear to support an attorney advising the Board that it is not important to address that!
It is also NOT true that SEQRA states that the ‘Hard Look’ requirement is satisfied merely by having documents gathered and not closely scrutinized by outside engineers such as what it was known that Chazen did.
It is also NOT true that SEQRA considers that a hodgepodge of half-reviewed, barely analyzed and mostly rubber-stamped pile of documents is absolutely equivalent to an Environmental Impact Statement and that an Environmental Impact Statement is NOT necessary, and, in fact should not be done.
And it certainly is NOT true that SEQRA advises that a basis for not obtaining an EIS is because, according to our Village Attorney, it is not Environmentally friendly because it uses TOO MUCH PAPER!!!
None of these things, along with others, not the least of which is our Village Attorney frequently and strongly encouraging the Board to vote to approve a Negative Declaration based on the HNGC/Matrix Application known to be fraught with false and misleading statements and misrepresentations, and to do so with some assurance from our Village Attorney that the Mitigation package terms offered (which would not mitigate any of the actual serious risks and dangers of the project itself, inherent in installing it on very steep and extremely steep slopes, where even NYSERDA states it should not be, and which she was aware had not been adequately analyzed or addressed by the engineers) have ever been addressed by our Village Attorney, who seems to show up to meetings unprepared, talks in circular riddles making no sense when questions are posed, proclaims unsupported conclusions with condescension and arrogance, and takes no real questions … apparently appearing to prefer to work and communicate behind the scenes.
As you are aware, specific cites to SEQRA and the law have been provided to you, our Mayor and this Village Board on several different occasions, indicating that specific statements and actions of our Village Attorney to her own clients, the Village Board and this Administration, did not appear to be true and did not assist them in being able to fulfill their duties to carry out the SEQRA process in the best interests of the Village and its Residents, and, in fact, likely prevented them from doing that, all to the detriment of the Village, its Residents and natural resources that they were mandated by law to protect.
It has been requested in the past that our Village Attorney present valid cites to SEQRA or cases to support any contention she might have that those statements to her own clients are not false, misleading or misrepresentations of SEQRA or law. To date, no response to those requests has ever been made.
And, at the 11th hour, at the Board of Trustees Meeting on January 31, 2022, the Village Board and Village Attorney, not only refused to follow the course most other municipalities would have taken (i.e., municipalities which were not being advised and steered throughout that whole period and to this day by highly conflicted and compromised legal counsel) based on the law and supported by all of the evidence to Deny the full HNGC/Matrix Solar Project and all pending applications and approval requests outright, with reprimands, warnings or even bans imposed on all those involved who submitted such false and misleading information in violation of NY Law and SEQRA (incl. any possible criminal charges) on their further ability to submit to our Village because that behavior attempting to circumvent our laws endangers us all… and our Village Administration and Village Attorney have a responsibility to ensure that we are protected from that!!! But, instead, they came up with and presented to the public at that meeting, some “unprecedented” plan of sorts… the special concession “mulligan” for HNGC… to allow HNGC and Matrix to resubmit their HNGC/Matrix Solar Applications to be resubmitted on the longer Full EAF. I would venture to guess that such an “unprecedented solution” would not have been suggested, let alone agreed to, if HNGC’s former counsel was not our current Village Attorney.
But what also took place at that meeting per request of Trustee Horowitz was that the Village Board and our Village Attorney, finally went through that EAF Part 1 that had been on the Village records for 18 months with false and misleading information, and it was clear to the residents that our Village Board and Village Attorney were quite familiar with the fact that the false and misleading information had existed on that Application despite their continued efforts to pass that Application to Approval over the course of many months!
At some point, there apparently had been some internal discussion indicating that the Village Board was looking at this “unprecedented” state of affairs as meaning that perhaps the Planning Board would not get another opportunity to review the Application… this time, hopefully, after 2+ years with accurate and not purposely evasive information and representations.
Those unprecedented steps did not escape the attention of our Planning Board which sent a letter to the Village Board on 2/7/22 addressing those issues which was very insightful and, itself, was unprecedented in that it should not take a very concerned Planning Board to try to wake up an errant Village Board and Administration … one which, from its recent actions, seems not to have heeded that message! In its 2/7/22 letter, the Planning Board rightly admonished the Village Board for following a flawed and not fully compliant review process in its handling of the HNGC/Matrix Solar Project and, in particular, in the BoT’s attempt to bypass full Planning Board review of the HNGC/Matrix Applications for that project. The Planning Board emphasized the legal mandates for its own review based on the necessary knowledge and experience that only a Planning Board can bring to such projects, and it warned that any approach circumventing that is risky given how closely these HNGC matters are being scrutinized under a microscope.
The New HNGC Course Restoration Project
We heard little about the HNGC/Matrix Solar Project for many months, and then there were rumblings that a new EAF would be forthcoming relating to that project. However, after a short time, what appeared was the curious notice relating solely to HNGC’s Request for a Wetlands Permit with no real detailed description of work except what appeared to be an attempt by their Engineer to minimize the scope of any work to be done (“refurbishing”, “minor repairs to existing irrigation system,” “work to be done around and might be within the 120’ wetlands buffers”).
At some point Brett Scales, HNGC’s Golf Course Superintendent (in his submitted letter and statements made at the WCC Meeting) together with industry materials and other statements made by HNGC’s other Rep. Alan Milton when pieced together indicate that this is not just some “minor repair of existing irrigation system” project. Instead, it is a full Golf Course Restoration Project that is planned, involving the rebuilding/restoring of the 90+ bunkers, 18 greens, tees, and complete replacement of the irrigation system with a new one, and replanting and installation of grass/turf, etc. (that is after the initial ripping up of all of the grass on all of those areas, excavating dirt, bringing in various fill, and ripping out the entire existing irrigation system).
To get the complete picture, one must also not forget that the course is comprised of steep slopes upland of the wetlands (and that our Wetlands Law protects from all activities that directly or indirectly impact those protected Wetlands!) and, per Mr. Scales, this entire project will also require the construction of a 20,000 sq ft Supply Transfer Station (~ 1/2 acre… which when measuring on Google Earth show it to be approx. the area of the huge HNGC Clubhouse!!!)
Already, much about how this HNGC Course Restoration Project is starting to shape up is truly disconcerting … like déjà vu all over again … including the pervasive lack of transparency, the evasive way the facts are, or are not, revealed (i.e., this is NOT just an irrigation system project… it is NOT just refurbishing anything)! All of the attempts to circumvent are suspicious and should not be trusted… nor should the people advocating for them!
These are the questions that come to mind:
Why all the attempts at misrepresenting the scope of this project?
Why is this not being handled in a transparent way?
Why is there a concerted effort to arrange for this project to be done to circumvent our Planning Board?
Our Village Manager should not be trying to address the “preferences” of HNGC or finding ways to circumvent our laws and the Planning Board authority in order to do so.
Our Village Board and this Pugh Administration should not be standing by again being willfully and silently ignorant of all that is going on and enabling this!
Our Village Manager does not work for our Village Attorney.
Our Village Attorney should not be advocating on behalf of HNGC.
A Proper Type 2 Classification Analysis Does Not Appear to Have Been Done!
The 12/7/22 WCC Meeting was one where it wasn’t just that things were being misstated but that lines were being crossed, and it was certainly an eye opener! As mentioned above, our Village Attorney appeared actually to be advocating on behalf of HNGC (her former client) both for downgrading of the classification of their current restoration project to a Type 2 Action, and to allow HNGC to bypass oversight, review and scrutiny of the Planning Board.
In response to a pre-submitted question submitted by Paula Chabrowe (who was not in attendance, but whose question relating to whether HNGC’s action should be properly classified as a Type 1 rather than Unlisted Action, as it had been submitted by its Engineer on the Short EAF (already with misrepresentations and false statements reminiscent of the Solar Project days!), it appears that our Village Attorney had already come prepared with pre-done research to assert on HNGC’s behalf to voluntarily and unilaterally announce that she and the Village will happily classify this as an even lower threshold Type 2 Action requiring absolutely NO SEQRA inquiries based on Ms. Whitehead “recognizing” that it fulfilled the SEQRA requirements of being:
§617.5(c)
(1) maintenance or repair involving no substantial changes in an existing structure or facility;
(2) replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site,
Even though that might be arguable, Ms. Whitehead apparently did not do the requisite review of SEQRA Sec. 617.7(c), required to be done for both Type 1 and Type 2 analyses under SEQRA,
§617.5
(b) … Each of the actions on an agency Type II list must:
(1) in no case, have a significant adverse impact on the environment based on the criteria contained in section 617.7(c) of this Part [see below]; and
(2) not be a Type I action as defined in section 617.4 of this Part.
If she did review the subparts of Sec. 617.7(c) below, our Village Attorney would have “recognized” and likely “discovered” that based on the true size, scope and nature of the project, there would be concerns of significant adverse impacts relating to the following that would block any reasonable conclusion that this is, indeed, a Type 2 Action, and, rather is a Type 1 Action:
§617.7(c)
(i) a substantial adverse change in existing air quality, ground or surface water quality or quantity, traffic or noise levels; a substantial increase in solid waste production;
(ii) the removal or destruction of large quantities of vegetation or fauna; substantial interference with the movement of any resident or migratory fish or wildlife species; impacts on a significant habitat area;
(vii) the creation of a hazard to human health;
(x) the creation of a material demand for other actions that would result in one of the above consequences; [Brett Scales indicated that the “restoration” project that HNGC was planning would require (i.e. “created a material demand for…) the construction of a 20,000 sq ft Supply Transfer Station (which is approx. ½ acre, and the area of the HNGC Clubhouse Building itself or that very large ½ acre sized disturbed area located in the Maintenance Yard which has already been, and continues to be, the source of flooding and damage to neighboring properties)
(xi) changes in two or more elements of the environment, no one of which has a significant impact on the environment, but when considered together result in a substantial adverse impact on the environment [vegetation will be removed, excavation done, lots of heavy machinery used,; or
(xii) two or more related actions undertaken, funded or approved by an agency, none of which has or would have a significant impact on the environment, but when considered cumulatively would meet one or more of the criteria in this subdivision.
(2) For the purpose of determining whether an action may cause one of the consequences listed in paragraph (1) of this subdivision, the lead agency must consider reasonably related long-term, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are: (i) included in any long-range plan of which the action under consideration is a part; SEQR Regulations – reproduction of 6 NYCRR Part 617 (Effective date: January 1, 2019) Page 22 of 40 617.7 (ii) likely to be undertaken as a result thereof, or (iii) dependent thereon.
(3) The significance of a likely consequence (i.e., whether it is material, substantial, large or important) should be assessed in connection with: (i) its setting (e.g., urban or rural) [The fact that the 90+ Bunkers and 18 Greens, as well as the irrigation system replacement, etc. involve land on and around steep slopes and uphill from protected Wetlands; (ii) its probability of occurrence; (iii) its duration [The HNGC Course Restoration Project has been estimated to be taking from months up to a year… in any case the duration is long enough to cause flooding, erosion, drainage and other issues if not handled correctly]; (iv) its irreversibility; (v) its geographic scope [Will likely involve much more than the convenient and dubious 9.5 acres asserted by HNGC’s known to be less than truthful Engineer on the Short EAF that was submitted]; (vi) its magnitude [Will involve much more than the convenient and dubious 9.5 acres asserted by HNGC’s known to be less than truthful Engineer on the Short EAF that was submitted]; and (vii) the number of people affected [Given that this work will affect most of the HNGC Course any flooding or drainage issue could potentially affect many neighboring properties].
HNGC, Village Officials and Village Attorney Linda Whitehead seem to have been going out of their way to downplay the nature and scope of what is really going to be done. Whatever “it” is that required a Wetlands Permit was and still has not been fully disclosed by HNGC.
You, yourself have stated that Wetlands, Steep Slope and Excavation and Fill Permits, as well as Stormwater Drainage, Erosion and Water Pollution Control Approvals will be necessary. All of these, when taken in the typical context of how a project should be viewed in its entirety and how our laws are drafted would default to the Planning Board having Approving Authority and review. However, it appears that you, this Administration and our Village Attorney have other objectives and goals… namely, bypassing the Planning Board so that it will not be brought into the loop!
The Village Laws for each of those permits and approvals overwhelmingly points to the fact that the law intended that the Planning Board be the body rightfully overseeing a project of this scope … primarily because they are the body with the knowledge and experience in land use matters to do so… experience that our Vill. Mgr and Vill Attorney (who don’t, according to you, even seem to be familiar enough with our laws) don’t have, nor do the WCC or our Village Engineer. Those laws provide that the Planning Board is to be the Approving Authority (and I’m summarizing here, but you will find references in each of these laws):
When very steep and extremely steep slopes are involved;
When obtaining a permit or approvals under the Wetlands, Steep Slopes, and Stormwater, Drainage, Erosion and Water Pollution Control Laws and an Excavation and Fill Permit is also involved;
And, conversely, when obtaining a permit under the Excavation and Fill Law or approvals under the Stormwater, Drainage, Erosion and Water Pollution Control Law and Wetlands or Steep Slopes permits are also involved.
The fact that now it appears that so much effort is being used by our Village Attorney, Village Manager and Village Board to assist HNGC to bypass the requirements not only in what SEQRA might require, but also in each of our Village laws to cut the Planning Board out of the process, and, in turn, subject our Residents, their properties and our Community, at large to greater risk, is astounding!
Environmental matters of significant consequence to this Village and its Residents, particularly those which carry high risk MUST be handled by them in a transparent manner and in accordance with all of our relevant laws and in the best interest of Croton and our Residents and not in a manner in which decisions are made and processes followed that are contrary to the best interests of our Community.
There can be no Confidence or Trust in this Village Administration when its Village Officials appear to be just pawns of HNGC, merely carrying out its wishes and objectives to the detriment and expense of our Village, its Residents, our properties and natural resources! That must STOP!
That’s how it’s seen… under the microscope!
Sincerely,
Domna Candido
Cc: Planning Board
Water Control Commission
