The Ulster County State Supreme Court has overturned the Hurley Planning Board’s denial of a site plan for a Dunkin’ drive-thru at the corner of Routes 28 and 375 in West Hurley and the town plans to appeal .
The plaintiffs, Southern Realty and Development LLC and Brown Cow Rental LLC, filed a Section 78 petition on February 9 challenging the January 10 Hurley Planning Board decision, claiming it was arbitrary, capricious and contrary to the law. He asked the court to order the Planning Board to approve the site plan.
Judge Kevin R. Bryant did not order approval of the site plan, but in his June 24 decision overturned the denial and referred it back to the Planning Board for further review.
The city has retained special counsel Victoria Polidoro of Rodenhausen, Chale & Polidoro LLP in Rhinebeck to assist city attorney David Gordon with the appeal. A decision from the Appellate Division of the state Supreme Court, the state’s highest court, is expected within the next six months.
Judge Bryant found that the Planning Board’s procedures did not include complete record keeping, violated municipal law by exceeding the time limit for making a decision, and violated the Open Meetings Act by deliberating outside of regular council meetings. Planning board.
Bryant ruled that the Planning Board failed to review the project in a manner consistent with applicable law.
“While this failure is best exemplified by the lack of an actual resolution denying approval of the site plan, the board’s failure to adhere to proper meeting protocol was consistent from the start of the 17-month review. , a review that has continued for more than a year beyond the time limits for a decision set forth in the City of Hurley Code,” Bryant wrote.
He also noted that members of the Planning Council circumvented the state’s open meetings law, in particular by attending a catwalk meeting organized by the Ulster County Planning Council at which elements linked to the Dunkin’ site were discussed.
There is no record of an official agenda or public notice of the meeting and no indication of whether the meeting was open to the public, in person or electronically, Bryant wrote in his decision.
“The discussions at this meeting and the information exchanged should not have been taken into account by the council in rendering its decisions and the information which was taken into account does not and cannot form part of the record of this procedure. . It is the conclusion of this Court that the deliberations and decisions of the Planning Council have been irretrievably compromised and cannot be corrected at this stage,” Bryant wrote.
“…Public bodies cannot escape public view by claiming that they did not formally meet when, in fact, a meeting took place at which matters of public interest were discussed,” Bryant wrote, citing Goodson Todman Enterprises v. Kingston Common Council, a 1990 New York Supreme Court Appellate Division case in which Kingston’s city corporation attorney refused a daily freeman the journalist’s access to a meeting in his office in the presence of several aldermen of the city. Goodson Todman owned the Free man at the time.
“While it is not clear from the record whether a quorum of either planning board was present at the gateway meeting, this Court is particularly troubled by the descriptions presented in the pleadings” , wrote Bryant, referring to the Ulster County Planning Board meeting.
“Any post-recommendation discussion of the UCPB August 4, 2021 letter and any communication with NYSDOT or other consultants, absent an exception to the open meeting law, should have been conducted during a public meeting to ensure that public business is conducted in an open and public manner. Similarly, any discussion with NYSDOT or traffic consultants regarding traffic issues should have been conducted at a public meeting or have been in writing and form part of the official record.
In its rejection of the Dunkin’ site plan, the Planning Board cited traffic and safety issues despite the site plan being approved by the state Department of Transportation.
“I know the DOT has their opinion on this, but the DOT makes mistakes,” then-Planning Council Chairman Mitch Cohen said at the Jan. 10 meeting, in which the council unanimously rejected Dunkin’s site plan.
“If we approve a project that in the long term is going to turn into a problem area with traffic problems, it’s going to be on our head,” Planning Board member Tony Bonavist said at the meeting. “So the DOT can say whatever it wants, but it always stops here in Hurley.”
The Jan. 10 denial came after numerous meetings in which members of the public doubted the plaintiff’s engineer’s traffic count and complained that an already dangerous intersection will be made worse by cars blocking traffic in waiting to enter the drive-thru.
Dunkin’s proposed drive-thru was to be on the northwest corner lot in place of a vacant building once occupied by owner Virginia Barthel’s travel agency, Booked by Barthel, and an office of Allstate insurance.