Did they put it in writing?

By DEBORAH E. LANS

PHILMONT – This paper has followed the “progress” of the Woods housing proposal in Philmont since 2022 (stories ran on November 17, 2022 and April 27, 2023). That progress can best be described as circular, and the planning process itself is indicative of the challenges facing developers of all kinds in New York’s “home rule” environment.

The Woods project is for 16 market-rate homes to be built on a 22-acre site in Philmont, near Summit Lake. The parcel sits on a wooded hillside, across Summit Lake from the village, and is bounded on one side by an 11-acre conservation area that abuts the lake and on the other, uphill side by a large development called Summit Heights.

Before the Woods project was proposed by two local builders (through Clover Reach Partners), the town had approved proposals for a 140-unit development and a 72-unit project on the site. Both of those projects had been abandoned. The current zoning for the site would permit construction of some 44 one- or two-family homes, each on ½ acre lots.

Before the current owners bought the site, it had been on the market for more than seven years. Many Philmont residents walk the site on a trail that mistakenly was built through it by a Boy Scout.

A vocal group of homeowners and renters (Summit Lake Conservation Group), who mainly live on the village side of Summit Lake and would face the Woods, has vigorously opposed the project. The group’s concerns include damage to a site that may be a fly-over area for eagles (the group has not found any nests) and hosts other wildlife, diminished biodiversity, harm to their views and those of other town residents (even though the developers have provided renderings showing minimal effect on the viewshed) and a devaluation of neighboring properties (even though the homes to-be-built would sell at prices higher than most in Philmont).

Many village residents also express a kind of inverse NIMBYism, worrying that the project would alter the character of the community by bringing in wealthy homeowners (likely from “downstate”), diluting the scruffy nature of the village, albeit the project would also increase the tax base and bring in substantial other revenue.

Under New York’s home rule approach, approval for the project lies with the Village of Philmont or, more specifically and primarily, its Planning Board. State and local laws spell out the process for approval of a project like the Woods, the documents required to be submitted and the issues to be addressed, including environmental impacts that largely surface through review of the SEQRA (State Environmental Quality Review Act) form which an applicant must file.

Generally, a large subdivision undergoes a two-step review process, with a preliminary plan presented for planning board approval, following which a project is developed and receives a final approval, certifying compliance with the preliminary plans. Review entails examining engineering issues such as water runoff to flow from the construction, detailed engineering drawings, site plans for the homes, driveway and roadway details, clearing that will be done, and environmental impacts.

In late 2022, the Woods project received preliminary approval from the Philmont Planning Board. The opponents filed a petition for review with the state Supreme Court. Petitions for review typically entail detailed legal submissions by the parties. After the filing, one of the developers lamented that the monies expended by both sides and the village might better have been spent on efforts to rehabilitate suboptimal Summit Lake conditions.

On January 13, Judge Richard Mott sent the matter back to the Philmont Planning Board, on the basis that the public hearing it held (a public hearing is required for subdivision proposals) improperly occurred prior to the time that the application for the project was complete.

Although Judge Mott did not then invalidate the SEQRA finding the board had made – stating that the project raised no significant environmental issues – he did require a new public hearing on a complete application. He also pointed out that the board had failed to articulate the basis on which it was varying (as might be permitted) from requirements concerning access road width – a safety issue in the event of a fire or like circumstance.

On March 20, the Planning Board held the required public hearing. Among the opposition’s complaints was that the developers had barely amended their proposal, notwithstanding the many environmental concerns they had raised. Opponents demanded that the board conduct a new SEQRA review to address those issues.

After the hearing, the Planning Board met on April 17 and summarily approved the proposal by a 4-1 vote. The board did not articulate the basis for its acceptance of the narrower access road – a requirement flagged by Judge Mott’s decision – and it did not require a new SEQRA submission or conduct any further environmental review.

Unsurprisingly, another petition for review was filed before Judge Mott. Legal expenses mounted on both sides, as well as for the village itself. The project meanwhile was in limbo.

On October 13 Judge Mott rendered another decision. Again, he sent the project back to the Planning Board. He found that the changes – the minor nature of which was a complaint of opponents at the last public hearing – were nevertheless sufficiently substantive as to require a new SEQRA review prior to a public hearing. Judge Mott also found that the board could not waive certain access road width requirements. Other objections to the project were deferred until after the necessary follow-up environmental review and hearing process at the Planning Board.

The Summit Lake Conservation Group was “euphoric” that its concerns about the safety of the access road were validated by Judge Mott, according to member Karen Schoemer. The group hopes that – whether or not required by Philmont’s laws – the developers will now negotiate the details of the project with them, giving greater consideration to alternate plans, like clustered housing, which might lessen concerns about the environmental impacts of the project, the potential for damaging runoff, the degree of tree-clearing, the possibilities of harm to the ecosystem of the lake and the woods in which the project will be built.

The developers in turn are considering their options. Their goal continues to be – “In the midst of a climate crisis” – to build energy efficient homes in an environmentally-sensitive manner in a county that is experiencing a housing crisis, according to partner Jock Winch. Andrew Personette, a Philmont resident and another of the developers, says he is dismayed that “development” is viewed as a four-letter word.

Although the Philmont code would permit the building of nearly triple the number of homes as the project envisions, he and his partners have chosen to keep the project smaller. Although the Philmont code would not prohibit them from clear-cutting the trees, they have created a design that preserves more than 65% of mature trees in the project area. They have also promised permanently to dedicate about 20% of the site to conservation.

Last, the developers are quizzical about the fact that the opposition, which has dubbed itself a “conservation group,” is forcing the construction of an access road that will require substantially additional tree clearing and potential for runoff.

Affordable housing advocates point to the complexities of New York’s legal structure as one factor impeding the construction of more housing. Regulations start at the state level and affect many environmental and safety issues, as the Woods case shows. In addition, local laws may implement and amplify the rules and vary from town to town. Finally, the application and administration of the laws happens at the most local level.

Planning and Zoning Board members are required to undertake four hours of annual training on the law and their responsibilities under it. Compliance with the training requirement varies from town to town. The four hours can include a wide array of topics, and most are covered only superficially.

As a result, often (as was true in Philmont) when a significant project is proposed, a town’s attorney may sit in on the board meetings to advise and in hopes of avoiding costly missteps.

While the Woods is not an affordable housing project, its still-unfolding tortuous history illustrates why many believe that the state’s legal requirements and permitting procedures must be revisited, simplified and made uniform if the state is to see housing built to the degree it so dearly needs.

Disclosure: The author is the chair of the Austerlitz Planning Board.