Common Council Legal Committee Meeting

1. 0:26body on. >> Okay. So, this is the uh March meeting of the legal committee. Uh begin with roll call. Claire >> here. >> Jenny here. Jason >> here. >> Morris >> here >> here. >> Um so we have just two items on the agenda this evening. Uh the first is relating to the short-term rental law I put up here. So uh this is a very narrow issue. Um, personally I am very much in favor of regulation of short-term rentals and before I was on the council submitted many proposals to the council at that time on how to regulate in such a manner that neighborhoods are not decimated. Um, however, in the last couple of years, there's a specific piece of language that allows residents who live here for at least 50 days of the year,
2. 1:32uh, to rent out their homes while they are out of time. And a number of people had approached us, different people on the council, asking that the 60day maximum per calendar year uh, be increased. And so it came up a couple of times. I thought bring it back in this administration, take a look at it and see what we want to do. Um, when I was looking at this last year, one of the things that struck me was that there is no provision in this paragraph that requires that if you're renting your home while you're out of town that you designate a local contact person. And most municipalities, that's a requirement. Um, it was not addressed, I think, in this local law because in general the short-term rentals that are rented out throughout the year are done so on platforms where there's a full host arrangement typically. Um, and this was probably just left out and many of these scenarios don't necessarily get posted on a platform. It could be word of mouth. It could be an acquaintance, a
3. 2:34friend of a friend. Um, so I wanted to make sure that that got added in. I also met with Michelle Tulo who oversees the rentals to see exactly what are we talking about here? What's the scope? Uh in the last year, she looked at a one-year time frame. 13 residents took advantage of this particular provision. Um of those most were renting in the 15 to 30day range. So this comports with individuals who are going on vacation and renting their homes out while they're on vacation. And there are only a couple who work close to the 60 limit. Uh there are some people who are not yet registered that there's a process to get to notify and to get people registered who are using this but it again small numbers. My personal opinion is that for a couple of residents it probably is not worth the effort to discuss changing the maximum limit because it's not going to impact very many people. But I do think we need to put in uh at the provision that if you are renting out your home while you're
4. 3:37away, you must designate a local contact person and provide that information both to the Hudson Police Department and code enforcement in the event that some issue arises. So that's what we've got on short-term rental uh comments, observations. I guess the question that I have is like before we consider extending the days um the enforcement looked like since >> I just thought that I should >> Yeah. And I'm asking what the enforcement has been on top of that >> the enforcement process. This is a self-report situation. Um given that most of the people who are using it are using it for very limited periods of time. I think that they're probably in compliance. Um, but this is really a case where if you have if you live next door to um a residence that you think is being rented out more than um 60 days a year or seems to be always rented out that you would notify Michelle or you'd
5. 4:39notify the city. Um but that's really the only mechanism they have to enforcement. >> Thank you. >> Should something about that be written into the loan? I I don't know that. What would you write in that people should notify? You can't really ask people to do that. You can't compel people to report. I mean, they should >> Well, there's no way of knowing for the general public who to report to. It's not written anywhere is what I'm getting at, I guess. >> Well, I think >> that's why we're concerned. People do complain and that's how Michelle gets notified of something that's not registered and there is a process where they get notified by >> have known that Michelle was the person to notify. >> So maybe we asked the mayor's office to put something out on the website making it clear that for any issues relating to short-term rentals that they should contact Michelle Tul. She has an assistant part-time person who works with her on this. She gets
6. 5:42monthly reports and so forth. Um on the other short-term rentals, >> I know there are other municipalities that require short-term rentals to notify their immediate neighbors, right? They should call if there's an issue, you know, it's legislative choice, but be able to do that. >> I I had heard very similar things to Margaret about the numbers and I felt the way you said it was exactly the way I was feeling. Um, since we are adding this piece right here, which I do think is a good idea. Uh, we could add contact information to put HBD and code enforcement phone numbers in this spot if we wanted to. >> Okay, that's fine. >> Or and even add and >> yeah, >> Michelle to it limits it to changing one spot. Well, if you put it in here, then you're only Well, I agree with you on HBD and code enforcement for this specific thing because that's not part of the rest of the law. That's the law
7. 6:45is much broader. Um, anything relating to short-term rentals should go to Michelle. I think the best place to notify people of that is on the website. >> Okay. >> Because that would apply to uh just the ones that are rented out throughout the year. >> Yeah. So that's a good idea to phone numbers to this line and I think I like it very much. >> So we will send this from here to uh the informal and then we should be able to vote on it in uh at our formal meeting later this month. And that's that's all I have on short-term. Okay. Um oops. So the next thing and I just put two things on the agenda for tonight because I want to allow enough time to discuss. Um we have received a communication from a resident Donald Stripes um asking with a a proposed uh local law amending chapter 325
8. 7:50um of the uh city code. uh this relates to uh doc usage and the language in the code relating to um the status of doc of the usage in uh 2011. Uh so Donna has come here this evening to talk to us and I have also go through all of this. Um do you want to speak first or shall we hear from Donna to give have her here? Yes. So Donna, do you want to give us a summary like no more than 10 minutes of uh the main thing here? We did have a local law that was considered last year, the last administration. Um and the numbers that were used in that came from 2015. This particular one that you're proposing uh uses data that you identified from 2009. So, just walk us through uh your research, how you came up with that, and
9. 8:52why you think that is appropriate information for 2011. >> Okay, I'd be happy to. I have three sets of handouts if anybody needs paper handouts. >> Um, >> I I don't need anything. Hey, thank you so much for um having me here tonight to speak about this. Um in an effort to clarify city code 325171D, I conducted some extensive research uh to determine the level of dock activity. In 2011, I researched city and planning board records. I also conducted a foil request of the 2009200 Greenport planning board review of OMG Industries application for a site plan permit to designate the rail bed into a truckway to uh truck aggregate from the
10. 9:56quarry to the dock. At that time, OMG was leasing the quarry and the dock from Ping. Um, the results of my findings are summarized in two charts and I'd like to walk through those with you at a high level in a moment and I'd be happy to answer any questions that you have. Bottom line, the local law clarification from last year was updated to reflect doc use limits that are closer to 2011, greater than the lips in 2025 draft board and are based on independent professional assessment of truck activity at the dock during the time the LWRP was being developed 2009 to 2011. Um, I'd like to refer to the charts. There's uh two pages stapled together. I'd like to look at page two first. Water doc this divides a chronological summary of
11. 11:04the doc ownership and truck studies from 1977 till 2020. And you'll note that um travel from the quarry to the dock really didn't begin until 2006. OMG began leasing the dock and quarry from Wholesome in 20 uh 2005. They began trucking in 2006. In 2009, OMG applied to the Greenport planning board for site plan approval as I mentioned. And as part of that review, they engaged, they hired Kraton Manning to do a traffic evaluation study that was completed in January 2010 and they updated it in February 2010. They subsequently withdrew their application uh on or after September 2010. And you'll note in the bottom row, uh, annual truck trips in 2009 based on the CRA Manning studies equated to about 10,800 trips that's to and from the dock.
12. 12:08Um, and it was during this time that the LWRP was being developed. For example, the 2009 draft generic environmental impact statement was in development at that point. From 2010 until mid 2014, um level of uh truck activity is unknown. Mid 2014, Olam decided to divest their Hudson and Greenport holdings and transferred uh ownership to a Colorado Russo and Suns. They began trucking mid 2014. 2015 was the first full use uh uh uh trucking and the annual truck trips that year was 5,460 and that number was determined based on the 2020 Kraton Manning truck study. Colorado hired them to conduct that study. Any questions on on this? >> Why annual truck? >> Why annual? >> Um it's a good metric. um
13. 13:11the uh they don't run trucks every day. Um they may in fact I don't know have the exact numbers um off the top of my head but uh from 2014 2015 to 2019 based on a 2020 CR management study um Colorado could have operated up to 365 days a year. One year they were only a little over 100. One year they were closer to 200. So kind of up and down. So the best metric in terms of volume of activity for the year is an annual limit. >> Just be totally clear. In 2009 when it says up to 10,800 it's 5400 in 5400 out. >> Yes. >> 50 and 255 be 2730 in 2730. That's >> um >> there's one one thing also that I just want to mention. Um and it's in your other document. Yeah. The actual numbers that CN Bron Manning cited uh for 2009 were up to it was tonnage is
14. 14:18what they cited 148 tons of um and how many barges were used uh 27.5 tons per uh average truckload. And that is where the number that is used in this revision, right, >> comes from because they didn't actually talk about number of truck trips. They talked about a trip. >> Exactly. So, >> um, can I step in there? >> Sure. >> Okay. So, that same report under B on page two, trip generation. Uh, there is a section that does refer to truck trips. um one one truck and all two loads of aggregate per hour. Uh this to four trips uh seven trucks running um seven drivers, 28 total vehicle trips per hour. Uh 385 tons of material moved each hour.
15. 15:23So that's the same it's the same document. >> Yeah, that is the document. those numbers. I'm not an engineer, so I can't explain how they've come up with those numbers. You, but they're trying to measure truck traffic flows and intersection with traffic, you know, crossing highways and whatnot. But what I'd like to do is walk through the second document. Um, on your on the website, it's titled existing usage in 2011. So, this document summarizes the results of my research. There are five uh findings and I'll walk through each one at a high level. First row question is what was the activity in 2011 by OMG and the data appears to be unavailable. The Hudson planning board records include an email from OMG Industries to Aal Russo and Suns dated April 30th, 2021 informing them that 2011's truck records were not available. They were destroyed
16. 16:25in 2019 uh based on the company's record retentions policy which is standard after 7 years records are typically destroyed so they don't exist. Point two, the November 2009 LWRP draft generic environmental impact statement report makes references to 80 round trips per day, 400 per week in a number of places in the report, but there's no source cited. There's no substantiation of the data. Where did this come from? I believe the source appears to have originated from an informal statement from OMG's engineered and we'll talk about that a little bit later. In 2021, the Hudson planning board conducted as part of their seeker review of the dock and quote and a hall plan, they conducted a environmental assessment form part three. And in that document on page one, footnote three,
17. 17:29they reference this 2009 DGEIS report and the 80 round trips per day, 400 round trips per week. But again, there's no source cited. three in the third row. That same report, the EAF part three, the Hudson Planning Board extrapolated that 80 trips per day, 400 per week to 35,200 trips per year. But it's not based on real world data. It's just and it's not referenced anywhere in the 2009 DGIS report. They simply took 400 trips uh trucks per week times 44 weeks the estimate of the barge season times to to and from but again it's not based on real world data point four the last row on page one based on my foil request I obtained the January and February 2010 crate mining traffic evaluation reports these are
18. 18:34independent professional assessments of truck traffic volume to the dock and it quotes barging operations have recently transported 148,000 tons of aggregate in one year. Now these Craig Manny reports appear to be the last independently determined professional assessment of the level of truck activity predating the city's adoption of the LWRP in 2011. Now, a couple of points. During this time, it uh the Greenport planning board was conducting their review of the OMG site plan permit application. The LWRP was was in development. The 2009 DGEIS report was being drafted. Secondly, the OMG, I'm sorry, the Freightton Manning traffic studies provided professional estimates of the volume of transportation activity from the quarry to the dock in 2009.
19. 19:38specifically and the numbers shown in the second paragraph from the bottom on the right on page one. These are specifically cited in that report. Up to 148,000 tons of aggregate move by barge, an estimate 45 barges used, 27 12 tons average truck load, 3,300 tons typical barge capacity, etc. From those numbers, I was able to derive the estimated annual truckloads of 5,400 that's rounded or 10,800 truck trips back and forth. Now in the draft local law clarification the number um used is 5382 and that was derived simply by taking 148,000 tons divided by 27 12 tons per truck load equals that number of of truck loads round trips. And if you multiply that times two that's the back
20. 20:42and forth. And if you keep going with those numbers, >> yes, >> uh I found somewhere near 39 weeks in a year. You mentioned 44 a minute ago, but >> um so that's >> actually I'm not factoring in number of weeks here. It's simply >> I am >> It's simply 40 148,000 tons at the time divided by >> Okay. I'm trying to work all the way down to number per hour. >> Oh, okay. So in this case, if it was 39 weeks, which is on the conservative side of the the schedule, that's 138 trips per week or three three and a half trips per hour. Just want to put that out there. Okay. Um so, oh, and then lastly on the flip side of that page, um the question of the source of the 2009 DGEIS 80 trips per day. As I mentioned, I think that's based on informal statement made by OMG's engineer in the foil review. As I reviewed the
21. 21:48Greenport planning board minutes, one of the meetings January 25th, 2010, included an exchange about truck volume. And included in that exchange, Pat Prrener Gast, who was the OMG engineer at the time, stated uh not more than 14 trips per hour or 80 per day. So I I'm thinking that's probably where that number came from. It ended up in the 2009 DGBIS. Um any questions on that? No, I think you know um the reason this came off last year um was because um the language uh the language in the uh in the code um had a statement um any type of non-quality shall not be enlarged, extended or placed on a different portion of the logger parcel.
22. 22:52Um, nor shall any external evidence of such use be increased by any means whatsoever. Any activity uh that caused an increase in external evidence of such doc operation became non-conforming was unauthorized on lawful. So, and the problem was that it just said nothing beyond 2011. Um and so the clarification that was put in uh in this in the what we looked at last year in the last administration um basically reiterated it has to conform with what was in effect in 2011 and in the event because the planning board doesn't have any guidance from that general statement as to what that volume is and so the clarification was using data from 2015 from uh Colorado's uh study and that's where the numbers that were put in there were. So I think um well I think the work that Donna has done I do think putting in clarification is important
23. 23:54first of all and I think that uh the what I'm looking at here has a lot more validity for me because temporarily it's closer to 2011. Uh it was done the report was completed in 2010. Uh the previous owner was up and running if you will at that time in 2011. The numbers from 2015 are from when Karuso was gearing up in their usage of the dock. And so I think understates what the volume was uh that they were going to going to be gearing up to. So I think that that uh the using the 2009 data for clarification uh to me is much fairer to Russo because it reflects a you know kind of fully active dot at that time. Uh so that to me is um uh a compelling argument for using those. But I do think some clarification about how do you uh
24. 24:59how do you quantify what is meant by the activity in 2011 would be helpful to the plan. >> Okay. I have two responses. uh the to say fair to call the reason even I did that math is currently they feel like they've been approved for 142 trips a day >> 14 >> excuse me could I >> hang on back to >> um so this is substantially less so I'm not sure the word fair would would fly very well um I'll go back to what I said before about the the Craig commanding uh document that is attached. Um the >> are you talking about the tall or the original? >> The one that I mentioned to Don a minute ago. It's the same document that um she calculated her numbers from has numbers that more relate to the 142 bricks. Um,
25. 26:06and the data supplied by the applicant is exactly what it says from 2010. So that's >> Can you side page? >> Page two of the credit management. >> It is it the January >> document >> January 5th? >> It is. Yes. >> January 5th, 2010. >> Yep. >> Page two, letter B. >> Mhm. that that um it feels to me like the numbers could have been chosen from that section as easily from any other section. Um I and then so that's those are my two points directly to what you were saying. I think maybe it's important for us to think we skipped over what we're trying to accomplish here. What is this? Why are we why are we doing this? and maybe stating >> okay so >> what are we trying to accomplish >> okay what we're trying to accomplish is that the uh the code just directs the planning board to say that it can't go
26. 27:11beyond what was occurring in 2011 but it doesn't give any uh guidance or any quantification to the planning board as to what that means and so the attempt last year uh for this other research has done came up with well we have the 2015 data so that's what was used to say in the event so at the um in the second in last year's report in last year's uh suggestion um for purposes of determining the baseline use of commercial B operation that such existed as of effective date that's in the code as required by subsection one shall constitute the maximum parameters of additional use permit issued pursuant to 32517 Planning board shall be exam reasonably feasible to determine and apply the following metrics annual drug to and from the dark person of stone and gravel. Now given that there wasn't any point data for them uh using the 2015 information clarification was added to
27. 28:14say to the extent it is found to be infeasible to make one or more of the specified findings with respect to baseline use of commercial B operations. uh as directed by subpar a planning board shall apply the following metrics and that's where those numbers came from. So I think there is value to uh whether these are not whether the numbers in in what Donna prepared are not the right ones we can talk about that but I think there's definitely value to putting something in place that gives guidance in the event that it is in feasible which it is to exactly say what the level of activity was in 2011. So I think we can talk about what the correct numbers are, but >> I don't think it adds with what we're trying to accomplish. >> I've just told you what we're trying to accomplish. We're trying to clarify so that the planning board actually has concrete information as to what the level of activity was because the conditional use is supposed to uh not go beyond what the activity was in 2011. >> Okay?
28. 29:14>> Yet there's no quantification of what that activity was. >> Okay. Um, so the planning board has already ruled on the hall road. They have ruled on the cup. >> Did they ask I mean like I'm not sure they haven't asked for clarification like >> do do you want to speak to the issue of this gets to permission and whether or not you know >> Yeah. Um the issue would be if the court remains in fact in the planning board because one of the questions was the uh conditional use permit didn't refer to it being provisional that says that sorry >> I said the question would be that if the court remands it back to the planning board because the planning board's conditional use permit didn't address the provision in the code that says that conditional use permit may be granted
29. 30:16for dog blah blah blah as such use exists in 2011. If the court says you didn't do that, you do need to do that and it gets sent back to the planning board, then they're going to have to answer that question. Um, and so the issue here is if it gets recommended to them, they have to answer that question. Is it just kind of they going to have to figure it out on their own or is the common council going to provide the framework that tells them how to deal with it? But if it gets sent back to the may not get sent back, we don't. But if it does, >> they're going to have to answer that question and it's a matter you must leave in their hands and let them figure it out or are you putting something in that's based on this or you know whatever. But that that's that is the reason that this would be relevant is that if it gets sent back there and they are compelled to you know don't that's going to happen but the court could order them to um you know where it says as such use existed to state what that means and they would
30. 31:19then have to figure out that's could be kind of no could as such use existed be interpreted to mean trucks arrive with gravel dump gravel low gravel on barges trucks return is that does it have to include volume is there anything well this is part of what would would need to be resolved so I can't answer that question because that would be the question and the board would be >> well there there is language though that says that says uh that any type of nonforming use shall not be enlarged extend or placed on the different portion of the or parcel uh occupied by such youth of the effective date of this chapter. Nor should any external evidence of such use be increased by any means whatsoever. That's >> that does not necessarily mean volume and that's why I ask about that's why I ask about annual volume because no one can perceive annual volume. I think it's be much better and more accurate to be
31. 32:21talking about either hourly or daily trips because that you can actually see. And the other point that's main on my head is that there's a lot of focus on volume whereas I think what people are trying to mitigate is issues like noise, dust, pollution. Can we focus on what we're trying to fix? Well, the volume is important because that's we had a whole discussion about this last year about the roads being destroyed and so the weight of the volume of >> well when they were traveling on mostly our streets now they call us too high. If I could clarify, I think and I think the reason that it's being addressed proposed to be addressed this way now is because the um the question is not this is not at the beginning of the review process where all kinds of things could have
32. 33:25been modified. Um this is under taking place within the context of the termination. it's been challenged on a couple on a particular point or two and so if it gets sent back um it's unlikely that it's going to be sent back for a redo where they're you know looking at conditions and all these other things. I think the qu it would be if it were to be sent back the point that was raises it's going to be sent back to answer the question what how do you make this conform to the 2000 limit. So that is really the only thing probably that can actually be reconsidered if it gets sent back to the court. Even though these, >> you know, these other things may have been, you know, stated have been >> more, you know, clearly laid out in the code a year or two ago or beyond. But right now, it's unlikely that this is going, if it were to be set back at all, would not likely set back to a total region. It would so it would be so basically the purpose of this law would
33. 34:29be to provide a way to answer this very specific question that the board would have to answer which is if the court says it says got to be as of 2011 what does that mean? It's only things that would answer that question that would really be relevant here. Under that scenario and this law as it's written, we could have 142 trips a day until the annual volume is met. That's what it appears to me. And I don't think that answers the the needs or the concerns of the people that are interested in. >> You're right. That could be the way it would work out because as it's written, the total number doesn't address the distribution of them at all. So they could be all focused in a short period. I'd like to make a suggestion. So the the reason this is it came as communication. I decided it should go to the legal committee for review and discussion which is why we're discussing that before it goes to the full council for consideration. Do you want to propose revisions to by
34. 35:33the way one revision that if we do put something in place I would like to incorporate language from the 20 uh 2025 version because I think under the f under the legislative planning purpose in that document there was some very valuable information. I would like to incorporate that into any new version of the law. But do you want to propose uh different quantification uh or or >> um my consideration? >> I appreciate the offer. I think I I look at the issue just not as a volume issue because um >> Oh, I get that. I understand. >> Yeah. And I I think it's an issue all around town with trucks. Um, so I'm more interested in amount of pollutants, amount of dust, amount of noise. And I think there are entities we pollute, we patrol noise on our own or we enforce noise on our own. We our code enforcement officer would do that. Um
35. 36:35I think uh DEEC and EPA control pollution. Uh I think they do it through truck they require apparatus on the trucks that deal with it but they but if there is an issue with pollution I believe they'll address it. Um, and so I just think the approach of volume is missing the point and I so I don't know that working with this and working with volume that something I that fits with my thinking. >> So if you don't want to approach volume if someone does want to approach volume I'd rather see it on a daily or hourly basis. >> Okay. Well, again, the question is as if it exists, everything if it's going to be anything that's actually sort of incurs, it's going to have to be tied into >> it's tying, >> right? But like when you talk about unless you can monitor it, >> you know, so what can you tie back to
36. 37:37that as a lemon is the question. >> Okay. Well, if if you if Margaret's offer stands, I would use that paragraph. No, it does because the purpose of having this at the legal committee for discussion is so that we can talk through these things and come up with okay, do we want to make some revisions? Do we want to make some recommendations before we move it to the full council? Full council may or may not even vote on it, but that's the point of having a committee is to as a work group. >> Okay. Well, I would sure >> I'll send your word. >> I I'd like to run a few. >> We do have Yeah. Do you can you hold one moment? Um John has a just identify yourself not necessarily by name but connection to Josh involved council member. Um I just want to give quick sort of background to elder reason why that law that we're trying to figure to clarify even came in existence was because of the massive you know some of you are not in town then uh but the massive public comment that came to
37. 38:41inform you was about controlling the intensification of water industrial activity uh it was a massive public comment it's the whole reason his own volcano So unfortunate at the time that the council didn't draft zoning to clearly speak to this issue that you're all talking about here. But it's clear that the language speaks intensification use and that is in my talking about volume and manual volume is a very good way to approach that. Whether or not a truck to go there 200 times in one day whatever it takes to approach that line that's a very good measure. Furthermore, there's no guarantee that Cola Russo, they run a great business. People like them a lot in this town. They're very proud of what they do. They might not be the operator here in the future. >> Correct. >> And if there's no sensible approach to address that volume of activity at the dock, it's going to blow a hole in the future economic uh activity in this town. People desire to live here while life. It's adjacent to a
38. 39:44park. So whippling here and there over different issues rather than focusing on what they attempt to hold on the list, what the attempt public comment at the time in forming. I think it's important for the council to think of the wrong in that in that respect and not think of it as trying to punish or being more fair or betting too far in one business or not. It's about the future of the city. It's about writing a good law and addressing what the public want. So actually uh and then I'm going to come back to you. Um I forgot to mention that uh the issue that this could change hands and in the future be a different entity. I think that's really really important because then we're going to have we can have a situation and I'd like you to speak to this. kind of a situation where uh whatever Colorado the current owner or whoever it is whatever they are doing at the time of sale becomes the baseline for a future entity when actually the code says no you can't go beyond what was going on if I could
39. 40:48just add one more thing really fast just and I was very intimately involved in a lot of the presentations that co has made about what their activity is at the dock from the beginning they said that what they're doing is not intensification reviews. They have no plans to grow their business. They would say these things repeatedly in public. So they had to have some awareness that the 2011 which they bought the property affected their plans of use there. So I'm not saying whether or not it so that should just come into mind that this is about long-term use. It doesn't necessarily mean them, but if they choose to sell it, it it be presents a big gift and it's be harder to control for the city. If they choose to say, well, we need to balance the interest between industrial activity, recreation, and other businesses and waterfront. You lose that chance. >> Well, um, can we defer to Ken one? >> I'd like to respond to just one thing. Um, so I've heard unlimited intensification. There is a limit. There is a limit. The planning board set a
40. 41:51limit of 142 trips a day. So it is and I and I'll go back to you mentioned there is a real goal that people want. The neighbors have talked about pollution, dust, air quality, noise, and I don't think I don't think we're addressing it. >> No, we're not. And I certainly submitted documents on those very topics to the planning board. But uh uh if it comes back for reconsideration, the planning board chose not to put anything in place to uh monitor or mitigate pollution uh air quality or anything else. They said that couldn't be done despite the fact that they were given documents that showed that it could be done. Um so no, I don't disagree with you on that one. >> Oh >> yeah. Well, this could get back if it's sent back to the planning board. I mean, to some extent the horse may have left the barn on a lot of these things because um that's why in all probability the only question that would come up is if there's again, you know, when as of 2011, what does that mean? So, a lot of
41. 42:53these other things would a lot more timely back before they may be relevant because they may be not permitted to reconsider any other things. But that's that's why I think this law is focused on that one question that because if it does get sent back, that is the question they're going to have to answer. And so whether you leave it entirely up to them or you give them guidance is it's totally up to it's entirely up to you as a legislature to do that. But that's really what the issue is is if they get told they have to address that point of law in the code, how are they going to do it? You're going to help immediately to their own devices. Um but anyway, I want to go through several things because um you know, um I was attorney DJ Rang put in a letter and written when this came out and referred back to the October 25 letter. Um and he raised a lot of points that we take very serious consideration and some of them actually, you know, they they cover a lot of lot of points. Um, and
42. 43:58there may be no merit to some of them and there may not be merit to some of the other ones, but each one of them really is is going to take a very thorough analysis. Um, some of them, you know, well, for example, I think there's sort of the local issues and there's more extended issues. Like one of the things that they bring up is the question of whether this impaires um interstate commerce, you know, which is a complicated question and that's something that wasn't in front of the planning board and it it's it's goes beyond just the local zoning code. And that's going to be a very significant question to address and in fact that could be governing. It could say it just would be wrong. you can't do this because of your state promise. I don't know the answer to that at this point. Um, some of them though that they bring up I think there are answers for and I yeah there are four fundamental things. I
43. 45:01just wrote this thing up. I can give you obvious at the end but it's there are four fundamental things that kind of set the foundation for where we are right now. uh one is the doc was designated a nonconforming use in 2011 by local act 5 2011. So that's important because non-conforming uses have very different legal rights than conforming uses. Um there's no question there's non-conforming use. Everybody acknowledges that and said non-conforming uses can be regulated, limited or even eliminated by the municipality. There's lots of case law on that. If somebody is a non-conforming, not that I understand that, but it's it's important to understand that the outer limits of what a municipality can do. Um there is a process of it's no they call it amortization although they acknowledge that's an improper term which is um a non-conforming use. You can put a actual end date to it, although it has to be
44. 46:05reasonable and essentially allow the owner to recoup the investment they made or most of it. Um, that's a case by case factbased thing. But the point being a non-conforming use is not necessarily perpetual. It's not a perpetual right right like some other things. Um, and so if we want to, we can eliminate that use. >> In theory, you could The conditions for doing it might be quite extensive. It might be many years. You know the point is you're not it would have to be in such a way that they >> something. You said eliminate Colorado, right? >> Excuse me. >> You said eliminate Colorado. >> No. >> What what did you say? >> Eliminate the use. >> Oh, sorry. Thank you. >> And you know I mean the law would could allow that under the right. It would have to be done properly but over enough time they repeat their mind. But but the point is it is not a perpetual right. um it's not you can't do it immediately. So they've pointed out a number of times that they have invested a right in the dock and that's true. When when they when the doc was first designated a
45. 47:10non-conforming use it would have been entirely unlawful to come in the next day and say you're shut down. It's unlaw you know it's a non-conforming you got to shut down. There was a vested right that existed at that time to continue to operate that dock. But the thing is because it is a non-conforming it is not a perpetual thing and it can be wound down in time. So again nobody's proposing doing that but it's at the outer limits. So to do a lesser thing which involves some limitations is a less dramatic and less impactful action than actually elimination which is the opportunity. >> Why don't we put limits? Why why use the planning board? >> Can I can we hear out the points? Um >> did that sorry then non-conforming use non-conforming uses are regulated by section 32529 of the Hudson code to prohibit any increase in the external evidence of use. And so when it was designated that non-conforming use in
46. 48:122011 came subject to the condition that no external evidence of that use could be lawfully increased from that point. leverage that's just the logical falling from the existence and that provision was in the code a long time before any of this happened. >> So that was the condition that became effective upon the parcel when it was made of non-conforming use that it couldn't that no external evidence of the use can be lawfully expanded or increased. Then color bought the dock in 2014 because three years after not performing use of it on their purchase it was immediately were subject to all these things in code 32517 which provides for conversion of the non-conforming dock operation to a conditional use provides that a conditional use may approve be approved quote continuation of existing commercial dock operations and there's more detail da da da as such usees existed on the effective date of this law in 2011. So the authorization to issue a conditional use permit continues
47. 49:16the limitations that existed when the doc was designated. I think it's one thing that's really important that I has been lost. Some you know people are treating this as imposing new conditions but that actually that is not actually the case. The first the condition was imposed on the doc non-conforming use in 2011 that no increase in external impacts or external evidence could could occur. That was way that was before they got it. And then that condition that limitation was continued at the time of the condition used because it says it can it can be conditions as such uses effective 2011 which brings you back everything goes back to the same point in 2011. So the conditions have been in effect on this parcel since 2011. And so this law proposed does not create a new condition. what it says is you're still subject to those conditions and there here's a way so when the planning board if it has to go back and and make
48. 50:18sure that it does this is what you're looking at. Um so because the you know this law fits into this framework and it because it seeks to provide an answer questions that would have to be answered to properly character law and those essentially what objective standards should be used one to measure the level of external evidence of the use that existed in 2011 which the operation is not allowed to imp to increase and two what stands for use as the baseline to evaluate conformity with the requirement of the use now in the future is for as such at least existed. That's the questions that would have to be answered you know and this was proposed to help the the plan board answered. So that's kind of the framework of law. Now there are a lot of really that's sort of a superficial you know context and structure of law. A lot of the issues that they raise are very important. They're not they don't get these that that line of logic is pretty solvent.
49. 51:21So, but what comes up is their arguments which really do need to be deeply evaluated is you know they are arguing that it's um you know they talk about their vested rights but I said that is probably something that is not um something that can't be addressed by this but I think that when you talk about interstate commerce that's something that really will have to be very very carefully if that that could preclude this whole you know, and >> so how do we address that? >> Well, there's some there's case law and you know, that will have to be fleshed out. I mean, and you I've never advised a board to do anything that got him in any trouble. I've never had a dec I've never had any board have anything that follow me overturned by court. I'm very cautious about it. And so, this takes some serious serious inquiry. there's a if it looks like that's a valid claim, I will no hesitation to tell you that's my view. Um, but there are things in here that need to be very seriously
50. 52:26considered and um, but there are some things that in here that are in here that I don't think that I don't think hold much weight at all. You know, another one for example that the the code does talk about 2000 is very clear about 2011. They may have been doing a lot more than that since then. Maybe they have, maybe they haven't. It actually doesn't matter and that doing more doesn't establish any further right than what was in the code. So, and you know, I did find some cases on that point that the basically municipality is never stopped from enforcing a zoning code. So if you have a zoning code that says a certain thing, even if nobody's followed it, even if building permits have been issued accordingly or know erroneously or or not in compliance at any time at any point um if the the zoning code provisions still are still
51. 53:28valid and applicable. So if these provisions are in effect, the actual use whether it was more or less in the intervening years does not establish right. So you know when they talk about vested rights they're partly they are right that they did they did have a vested right and I at this point they still do because there's been no amortization. So they have an they definitely have a right to be operating but and and but it is not complete to if that were to imply that it it gives unlimited or endless rights. So um yeah we've got a lot of points in here and they're they're they're quite complex. There are a lot of complexities to this law. Um there are other issues that come up that um you know what can be limited you know what what sort of items can be restrained I mean there's there principles that in when they're stated are kind of vague
52. 54:31but like about not not zoning not regulating the internal operations of the business. Um but that does contrast with the ability to um let put restrictions on external impact. So sometimes there's an amb you know you might may not be totally clear with what you're looking at. Um so there are questions about whe whether these specific things proposed to be limited are subject to limitation. um the fact that it's specifically in this codes. Sometimes there are just general terms in codes um and if a if a thing increases it's the number of things happening or sort of be that may not be something that can be restrained but if there's a specific very precise and specific code provision that may govern so there are a lot of things where there's an argument on this hand and an argument on this hand in the end
53. 55:34one of them prevails and usually the specific prevails over the journey. So, um there are a lot of big picture questions that they raise that really do warrant very very serious consideration and um I'm in no way able to give definitive opinions on a lot of them at this stage, but they're you know they're serious things. So, there's kind of two levels. One is like this the fundamental authority to do all this stuff at the zone at the immediate zoning level. I think it's very clear from the 2011 non-conforming to the conditional use to now that um it's not putting in a new limitation, new restriction. But if it's enforced if through you know part of the question would actually be the validity the un it's to me a lot of questions they raise speak more to the existing laws that are already on the books because they're the ones that put these things in place. um and if it but if these if those laws
54. 56:37are manifest through this and the next steps some of these questions might arise. So um some of the issues may relate more to the stuff that's already in the code than than what's actually in front of you right now. It's a very complicated question. you know, it's a it's a a lot of questions. Um it's, you know, it's a very difficult thing, but um all it can be done, you know, is look at them very very seriously and see if there are things that that preclude doing this. Um >> but what I'm taking from what you're saying is that um we should do more work on this and discuss it. >> Well, there are two things that can go on kind of in parallel, which is one is perhaps shaping, you know, if you if you want to make some modifications to law or revise some of how you go about it, you can go ahead and do that. Um you can introduce the law when you're ready, you
55. 57:40know, and get the process going. a lot of the the review can go on concurrently. So I mean you don't have to wait around for until everything is answered. You can start in fact probably want to get a law that you want to work with and get it introduced. So there's actually a concrete thing um to see how those provisions measure up against some of the questions that are raised. Um, but it does have to get to the point where it doesn't run a foul of any of their constitutional clients or any of the other things. And yeah, I can't say now whether it will or won't. So um in your opinion, do you think that we can come up with a version of this law to introduce uh to the full council, not the program, but just introduced to the full council in this month and they continue to work on it? >> Certainly could introduction is very preliminary. Um it's a way to get the ball rolling. It's you don't have to do any referrals on at that point. You can
56. 58:42modify it, you can amend it, you can let it die, you can vote on it, but I mean it's it's a good thing first step. Um it's not binding. It doesn't it really is just it can be introduced and even introduced a lot in a very cursory way. It doesn't really have to. So if you want to get something out there like that lets people have a hard and fast things she look at to make comments on to address you know and the specific concerns can be addressed in relation to specific provisions and work from there it's probably not a bad idea get it going um it could take you know I can't say how could be resolved reasonably quickly could take quite a long time but it It doesn't hurt and not everything gets interested and has to be voted. I mean, I guess the point was like, no, this is going to work out and just leave let it let it die. But I think introduction is is just a first step so that everybody's got something clearly work with it. Um, and you can freely amend it all the way
57. 59:46through the process. >> So, uh, is the committee comfortable with work on some revisions here? You can give me some revisions. We can introduce the ground. I'm still questioning whether I I should or not because I'm not sure that I believe in it or not. I think maybe someone who believes in it more if someone does. Um I would like to hear what Jenny and Claire think. Um one thing that I did say I would do tonight just to make sure it's out on the record is and I talked to Ken about this. Um Ken has written a number of letters to the planning board on this issue. uh he had litigation as the attorney for the city of Hudson years ago uh against Colorado. So he has a long history in this. Um I think if we I I don't know. I'm not an attorney, but I think it has an impact if we get into a lawsuit. I think it could be mentioned. Um, I think Ken
58. 1:00:50feels differently, but uh I think it needs to be known that it's Ken has a history with this. >> Yeah, I've been involved from the very beginning. Um, because I was the city attorney when the first action working on the bulkhead, the sugarless get started and I was involved early on. Um and what in 2017 uh publishers who sued the planning board to not to try and summon view it was an expensive thing and I defended the city um >> successful >> successfully dismissed all their all of their claims. Um I kind of senually and what happened after that is I was no longer with the city and after the case decision came down quite a long time later I wasn't with city anymore and I thought I was long done with it but
59. 1:01:53what happened was that their attorney John Pervetera went back to the planning board and in my view completely misrepresented and distorted what had actually gone that I'm completely misrepresented what the court has said and I after having done all that work and defended the city and the law and the code I was frankly angry that someone was taking all that and throwing it away what I cons what in my view is complete misrepresentation and I put in what I believe to be clarifications solidly based in the law and the decisions and you know like I wasn't trying I've never ever taken a position on what the planning should have done or argue for or against any outcome but I can put in a lot of things to clarify what the law said. >> Well the the introduction of your letter specifically said that you were not
60. 1:02:54taking additional >> and also I don't I did this entirely on my own. I've never been hired by anybody to work on this stuff. I've never taken any money for it. I just I was trying to defend the law of the city of Hudson when I thought it was being trampled upon. So that was what I've done at this stage though. What is also I think very significant here is this. What is being considered here is a legislative political question that I have no say about or influence about. It's like you're going to defend it's going to be your political decision about whether to do this if it's different from say a judicial thing where you know when they hit the planning board the zoning board it's a question of it's almost like a jury this has nothing to do with it you can do what you want or not do what you want so I don't really have a role in that that's the the outcome of this thing is a pure political legislative action
61. 1:03:56Um, >> personally I think >> Ken's background in this is a great strength for us because uh, as he says, this is a political decision for us to make and uh, the fact that he has so much information and detail and has in fact represented the city on this topic in the past. To me, I see that as legally a great strength >> and we we make our own decision as to what we choose to do. Yeah, if there are any legal questions that said I've never had anybody I've never guided anybody to have anything that was ever overturned by a court order and I in no mind to change that record that there's a thing in here that I believe puts you in foul of anything I will you will absolutely hear it from me you know and but there is it's a complex question and I think it goes back years and the law and the origins and I think somebody's thinking questions that could comfortable. They don't know some of these origins. I know there are people who have answered questions when they were without
62. 1:05:00incredibly fundamental information that is accumulated over time. Um, but it's such a I'm I'm you know I'm my master is the law. Yours is the decision and the policy. you know, it's immaterial to me what you decide to do um as long as it's done within the constraints of the law. And as an attorney, I think that the guidance usually should consistent of three things. Advising what you cannot do, advising what you must do, and everything else in between that you may do. And within the that those two confines of what you may do have nothing to say, you know, and and that's totally up to you. Um and that's where most of the things happen at the legislative level. It's, you know, it's different in other administrative things and mayor's office and there's a lot more of what
63. 1:06:02they have to do or can't do. But the legislature, as you as the legislature, most of what you do is just simply, yeah, you can do this if you want to. You don't have to, but you can. And that's it's a discretionary choice on her part. I've never in none of my place do I ever try to make recommendations or push people one way or that's just not my job. So, you know, I'm trying to bring the knowledge and the history, but I'm not interested in in in suggesting you do this way or that way. That's just not my thing. So, >> Jenny, do you have any comments? I I liked your point about the reason for doing something. Um, if we're going to change this, I I'm I feel very confident in uh Mr. Dow's uh history with this and he can guide us if we're doing something that we could potentially see ourselves
64. 1:07:07in court over. Um I my only question is because we don't have any data from 2011 um we've had suggested data uh I don't know it requires a little more conversation >> that's actually a good point and I it's another one I want to mention um you don't want to be in a position of doing something that's arbitrary >> and I started to look in some cases obviously there are times not here lot there are times in the administration of law or whatever where something has to be decided where there is not complete thorough accurate data so I I've started to try to read cases like what is considered acceptable and lawful circumstances a lot of them have to do with taxes >> if you're shed some light on but that's going to be an important thing I mean arbitrary primarily means pulling something out of thin air without any shade freeze Um,
65. 1:08:10this has numbers that are people are trying to get in the closest proximity they can. Is that sufficient? >> I don't know the answer to that and I'm going to try to get the best do the best research I can to find out. >> Is that sufficient? you know, um it may or may not be, but that's a that's a good question because um it should be based, evidence-based. You can make reasonable inferences. You may be able to interpolate things, but I I don't have a clear legal opinion on that. I know it's an issue. I know there are times when decisions on numbers can be made through inference or other data or other analysis that isn't the direct reference to actual recorded numbers. But I don't know exactly when and how that's okay. >> And that's a really important thing to figure out here is like if you're going to base it on this, is that going to hold up? And I don't know the answer to that right now. So, but there's that's
66. 1:09:12there's a lot of stuff that's going in here and some of the thoughts that I've had reading it. You know, it's a complicated question or series of complicated questions and they all need to be settled to a level of high comfort to go ahead and do this. And I can't tell you right now if they're that's all going to happen. I wouldn't be opposed to having it introduced, but I think given the letter that we did receive from their attorney and Ken's points and Ken's history, I I think it should sit in committee a little bit longer and we should hammer through some of those concerns um and weigh the options. But I think if we get to a place of comfortability where it makes sense um that introducing it. >> So you would keep it here rather than introduce like we could introduce it to the council and continue to work on it here committee if is that an option for you or do you prefer to keep >> I think we should stay in committee a bit longer because I think the my understanding of the intention of committees is for us to do some of the like we do the leg work before we
67. 1:10:15introduce to the full council. >> Okay, that's fair. But I think that's a reasonable perspective. There is more work done. Um and you know I I deliberately only put two things on the agenda tonight because I wanted to give this submission time. Uh any public comments? >> I have one more. >> Sorry. Sure. One more thing after hearing all this is that >> it the legal part of this I don't feel it I don't I haven't been informed enough to feel confident about but I it feels like we're going to spend money and so I want to just >> bring to our committee to think about money um because I think eventually we're going to end up in a lawsuit and if Ken advises us maybe you can advise us on what lawsuits might We we will not discuss any potential litigation in the opening meetings. We go into we could go into executive sis discuss that at a future time but that's not >> I'm concerned about the no get this
68. 1:11:18accomplished. >> I completely understand that which is why we have to go through and make sure that we're at a certain level of of competence of of what we're doing. So the previous previous council to to to common council advised against last year's >> I think we should leave any uh guidance that was given in executive session out of this discussion. >> Okay. I would like I would like to as a new member be privy to that. >> Well we can do it in the executive session. Uh do we have public comment? Yeah, I wanted to respond to JP question or comment earlier about 142 loads a day, 284 trips a day, which was approved by the planning board for the Hall Road. Um, and the Colorado current owner can operate up to 250 days a year. That 284 trip a day limit was first first came up in a Craig Manning 2016 traffic evaluation study as a maximum daily cap worst case scenario
69. 1:12:26estimated to occur twice a year. Not something that would be regularly ongoing average truck volume. And in fact um my review of the 2020 crate man truck study um that measured collus activity from 2014 to 2019 from 2015 to 2019 um they only hit that 142 or 284 two days out of 5year period. Okay. So just for the planning board to approve 284 trips a day up to 250 operating days a year. The concern is that worst case scenario whether it be in Colorado or a new dock order down the road could potentially run that level or 71,000 trips a year which is a lot more than 10,000 or so. >> Okay. Thanks. Um I think we need to stay focused on uh the activity at the back which is what this is about. So yes,
70. 1:13:33>> I mean, yes, it has to get there somehow, >> but um this is a focus on the duck. >> And so I don't really want to get into discussions of >> just one other point that the limit in the proposed local law clarification does not preclude the planning board from putting other limits into a conditional use permit. For example, they can have the annual limit and they can also have a daily cap. Know that will the daily cap exceed 284 trips a day. That's perfectly fine. So it doesn't preclude that. >> Yeah. Lord K and if for clarity sake could you just summarize maybe in a bullet point the four issues because I didn't quite >> I think you were going to give us a number. I mean I have this sheet that I mentioned four points that were like the foundation for where we are. >> Will you point them for me? >> Yeah, I did. I one I said that the doc was designated. You can have one of
71. 1:14:36these. I mean it was just a note. Why don't you send something? >> It's like a thumb though. I think what he said you can think with it. >> What I said is the doc these are the four main points again have to they're the foundation for the the zoning authority on this. Now there are lots of other issues. So these don't address all those other issues, >> right? >> But the doc was designated a non-conforming use in 2011 by the local law. Non-conforming uses are regulated by 32529 in code. It says no external evidence of the use shall be exceed what existed at that time. have purchased the doc in 2014, three years after all those were in place and the Hudson code 3 2017 one whatever the conditional use says that a conditional use may be approved for continuation of existing commercial docarerations and is more da as such uses existed on the effective date of this law in 2011. So I'm just saying that the the foundation for all this is
72. 1:15:39that these restrictions were put in place for in relation to non-conforming uses and that the conditional use also refers back to the same 2011. So that all of the limitations that are that are at issue here have been in the code for 15 years. And that's why this isn't it's not like this is coming in imposing new ones. It's saying it is going back to the ones that have been in there for 15 years and trying to answer the qu if the court sends it back to the planning board says answer that question. It's got to be as it was in 2015. How are they going to answer that? And then again, if it gets sent back to them, they have to answer it. They're going to do it on their own or you're going to give them the framework. That's why I think just to keep in mind any third amendments or revisions or thoughts, keep in mind that they're there to answer the question that will come to the planning board if the court sends it back. If the court says the code says has to be as of 2011, what is that going to mean? So
73. 1:16:43that's really what this would be attempting to answer, not other things. There are lots of other things that you may think would be great to do, but if they don't answer that question, they're not going to really be relevant. So, that's what this is all about. May not happen. We don't even know. But, I mean, that's that's what this is about. If it gets sent back, how's it going to get answered? >> Thank you for that clarification. >> Yeah. >> Any other public comment? Do I want to move on to uh the rest of the meeting? Uh last, we have a number of things that we're going to be working on. Um, one of which Jenny brought up as new issue relating to parking and she has provided us with preliminary documents. We'll take that off next month. The other issue that is on our docket which we will address next month. I'm working currently on uh other municipalities and researching what kind of uh codes are in place relating to uh ebike and scooter safety. So next month we'll be prepared to talk about those two things and then we will continue with u our review of this particular issue. If there's no
74. 1:17:47other business, can we have a motion to adjourn? Have a >> motion to second. Second is Jenny. Thank you all very very much.

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