Tuxedo Reserve (Draft)

Transcription

DRAFT
TUXEDO RESERVE
FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT
June 21, 2010
Lead Agency: Town of Tuxedo, New York
Applicant:
Tuxedo Reserve Owner LLC
60 Columbus Circle
New York, New York 10023
Prepared by: AKRF, Inc.
34 South Broadway Suite 401
White Plains, New York 10601
DRAFT
TUXEDO RESERVE
FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT
Project Name:
Tuxedo Reserve
Project Location:
The site consists of 2,301 acres1 of land located in the Town of
Tuxedo, Orange County, New York and 38 acres of land located in
the Village of Sloatsburg, Rockland County, New York.
Lead Agency:
Town of Tuxedo Town Board
Town Hall, Box 725
Tuxedo, New York 10987
Contact Person: Honorable Peter M. Dolan, Supervisor
Contact Phone Number: (845) 351-2265
Applicant/Sponsor:
Tuxedo Reserve Owner LLC
60 Columbus Circle
New York, New York 10023
DSEIS Acceptance Date:
September 14, 2009
FSEIS Acceptance Date: __________________________
This document is the Supplemental Environmental Impact Statement for the abovereferenced project. Copies are available for review at the office of the Lead Agency. A
copy of this document has also been made available on the Internet at the following
address: http://www.tuxedogov.org/.
This document, by reference, incorporates the Tuxedo Reserve Final Environmental
Impact Statement (FEIS), dated November 2003, the Tuxedo Reserve Draft Supplemental
Environmental Impact Statement (DSEIS), dated October 1999, and the R.H. Tuxedo
Development Draft Generic Environmental Impact Statement (DGEIS), dated September
1996.
1
This excludes the 40.3-acre RO Non Gift parcel.
SEIS Preparer:
AKRF, Inc.
Site/Civil Engineering:
Langan Engineering & Environmental Services, Inc.
John Collins Engineers, PC
Lehman & Getz Engineering, PC
Landscape Architects:
EDAW, Inc.
Utility Engineers:
Delaware Engineering, PC
Black & Veatch Corporation
Leggette, Brashears & Graham, Inc.
Planners:
Cooper, Robertson & Partners
Architects:
Robert A.M. Stern Architects, LLP
Donald Powers Architects
Robert Orr & Associates
John Reagan Architects
Terrestrial Ecology:
EcolSciences, Inc.
Historical & Archaeological: Historical Perspectives, Inc.
Legal Counsel:
Sive, Paget & Riesel, PC
Table of Contents
VOLUME I
1: Description of the FSEIS ...................................................................................................... 1-1
2: Discussion of Potential Environmental Impacts ............................................................... 2-1
3.0: Response to Comments .................................................................................................. 3.0-1
3.1: Description of the Proposed Modifications ............................................................ 3.1-1
3.2: Land Use, Zoning, and Public Policy ..................................................................... 3.2-1
3.3: Economic and Fiscal Analysis ................................................................................ 3.3-1
3.4: Archaeological Resources ....................................................................................... 3.4-1
3.5: Natural Resources ................................................................................................... 3.5-1
3.6: Hydrology and Stormwater Management ............................................................... 3.6-1
3.7: Construction Impacts .............................................................................................. 3.7-1
3.8: Alternatives .............................................................................................................. 3.8-1
3.9: Mitigation................................................................................................................. 3.9-1
3.10: Unavoidable Significant Adverse Impacts .......................................................... 3.10-1
3.11: Irreversible and Irretrievable Commitment of Resources .................................. 3.11-1
3.12: Growth-Inducing Aspects of the Proposed Modifications ................................. 3.12-1
VOLUME II
Appendix A:
October 26, 2009 Public Hearing Transcript.
November 23, 2009 Public Hearing Transcript.
Appendix B:
Written Comments.
VOLUME III
Appendix C:
Response to Legal Comments, Comments Outside the Framework of the
DSEIS, and Non-Substantive Comments.
Appendix D:
Revised DSEIS Chapter 3: Economic and Fiscal Analysis.
Revised Economic and Fiscal Analysis from DSEIS Chapter 8: Alternatives.
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Appendix E:
Residential Market Update and Strategic Development Recommendations for
Tuxedo Reserve; Tuxedo, New York, prepared by Robert Charles Lesser & Co,
dated December 2009.
2009 Master-Planned Community Survey Results, prepared by Robert Charles
Lesser & Co.
Appendix F:
Fiscal Analysis Peer Review.
Appendix G:
Letter from Thomas Rudolph, PE to Peter Dolan, Supervisor, dated January 6,
2010.
Appendix H:
Memorandum from Historical Persepctives, RE; Continental Road, Tuxedo
Reserve, dated February 10, 2010 and Updated May 25, 2010.
The Dendrochronological Date of a Corduroy Road, Tuxedo Reserve, Orange
County, New York, Carol Griggs, PhD, Tree-Ring Laboratory, Cornell
University, Ithaca, NY 14853.
Appendix I:
Letter from James Hall, Executive Director of PIPC, to Thomas West, West
Law Firm, dated December 12, 2008.
Appendix J:
Letter from Andrew Dance to Charles Jones, Tuxedo Joint Fire District
Chairman, dated March 10, 2010.
Appendix K:
Letter from Edwin Devine, Rockland County Drainage Agency, to David
Speiser, dated October 21, 2009.
Appendix L:
Letter from Kenneth W. Caffrey, PE, NYSDOH to Alexander F. Ciesluk, Jr.,
NYSDEC, dated March 5, 2008.
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Chapter 1:
Description of the FSEIS
A. INTRODUCTION
This Final Supplemental Environmental Impact Statement (“FSEIS”) is prepared in accordance
with 6 NYCRR 617.9. It responds to comments made on the Draft SEIS (“DSEIS”), presented
verbally at the Public Hearings on October 26, 2009 and November 23, 2009, and comments
made in writing by public officials, area residents and their representatives, and interested and
involved agencies received through the conclusion of the public comment period on January 4,
2010.
The FSEIS also identifies and analyzes revisions and supplements to the DSEIS, as they pertain
to the proposed Tuxedo Reserve project modifications (“Proposed Modifications”). Since the
issuance of the DSEIS, the Proposed Modifications have been revised to include the proposed
stormwater management basin in Sloatsburg as the preferred alternative for stormwater
management. The potential environmental impacts of this change are analyzed in this FSEIS.
In addition and partially in response to public comments, the Town of Tuxedo (“the Town”)
retained consultants to assist the Town in evaluating the potential economic and fiscal impacts of
the Proposed Modifications and the economic and fiscal analysis in the DSEIS. In response to
input from the Town’s economic and fiscal consultants, the economic and fiscal analysis in the
DSEIS has been updated and revised, including an analysis of the present housing market.
Supplemental information about certain land in Sloatsburg, the status of the wastewater
treatment plant for “Tuxedo Reserve” (“the Project”), and onsite potential archaeological and
historical resources are also included in the FSEIS.
B. PRIOR REVIEW HISTORY
The Preliminary Plan and Special Permit (“Project Approvals”) were issued in 2004 after
publication of the Final Environmental Impact Statement (“2003 FEIS”) for the Project in 2003
and the adoption of SEQRA findings (the “Findings Statement”) in 2004. On August 27, 2008,
Tuxedo Reserve Owner LLC, an affiliate of the Related Companies (the “Developer” or
“Applicant”), submitted its application for the Proposed Modifications. Review of that
application was conducted by both the Planning Board and Town Board. Both Boards reviewed
and considered a Technical Memorandum prepared by the Applicant that analyzed the potential
environmental impacts that could arise from the Proposed Modifications. On June 22, 2009, the
Town Board, as SEQRA lead agency, found that a number of the environmental impacts that
could arise from the Proposed Modifications and were analyzed in the Technical Memorandum
did not have the potential to generate any new significant adverse environmental impacts not
previously identified and analyzed in the 2003 FEIS and its antecedent draft environmental
impact statements. The Town Board however did determine that as to certain identified potential
impacts, the Proposed Modifications may have the potential to generate new significant adverse
environmental impacts not previously identified and analyzed in the 2003 FEIS.1 It was those
potential significant adverse impacts that were analyzed in the DSEIS in accordance with 6
NYCRR 617.9 (7).
1
The Technical Memorandum and Town Board Resolution can be found in the 2009 DSEIS Appendix A.
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Tuxedo Reserve FSEIS
The Applicant submitted a preliminary DSEIS to the Town on July 29, 2009, which was
reviewed by its consultants and found incomplete. The DSEIS was revised and resubmitted on
September 2, 2009. On September 14, 2009, the Town Board declared the document complete
for the purposes of commencing public review. On October 26, 2009, a hearing was held to
receive public comments on the DSEIS; a continuation of the hearing was held on November 26,
2009. Written comments on the DSEIS were accepted by the Town Board until January 4, 2010.
C. REVISIONS AND SUPPLEMENTS TO THE PROPOSED
MODIFICATIONS AND DSEIS
Except as identified below, the Proposed Modifications remain the same as described and
analyzed in the DSEIS. Please refer to DSEIS Chapter 1, “Description of the Proposed
Modifications,” for a complete description of the Proposed Modifications.
ECONOMIC AND FISCAL ANALYSIS
The Town of Tuxedo retained two outside consultants to review the economic and fiscal analysis
in the DSEIS. The Town retained Bay Area Economics (“BAE”) to review the methodology
utilized to estimate the number of school children anticipated to be generated by the Project with
the Proposed Modifications. The Town also retained Real Estate Solutions Group, LLC,
(“RESGroup”) to review the market assumptions and fiscal impact analysis presented in
Chapters 3 and 8 of the DSEIS.
Based upon public comment and the input from RESGroup and BAE, the Applicant
supplemented the economic and fiscal analysis in the DSEIS. Appendix D of this FSEIS
contains DSEIS Chapter 3, “Economic and Fiscal Analysis,” as supplemented. Appendix E
contains the Residential Market Update and Strategic Development Recommendations for
Tuxedo Reserve, Tuxedo, New York, as supplemented. Finally, Appendix F contains the Town
consultants’ correspondence, review, and recommendations regarding the fiscal analysis
methodologies utilized in the preparation of the FSEIS.
WASTEWATER TREATMENT PLANT
As authorized in the Special Permit, Tuxedo Reserve has the option to either build a new
500,000-gallon-per-day sewage treatment plant to replace the existing Tuxedo hamlet
wastewater treatment plant (“Hamlet Plant”), or connect to the new Western Ramapo
Wastewater Treatment Plant, subject to the approval by Rockland County Sewer District
Number One. However, as authorized in the Special Permit, Tuxedo Reserve may connect eighty
homes to the existing Hamlet Plant before the larger improvement is undertaken.
In a letter from the New York State Department of Environmental Conservation (NYSDEC)
dated January 6, 2010, and included in Appendix G, NYSDEC informed the Town that no
additional hookups would be allowed to the Hamlet Plant unless improvements are made to the
plant. Accordingly, prior improvements would be required to the Hamlet Plant if the eighty
homes authorized in the Special Permit are to be connected to the plant. Those improvements
would be the responsibility of the Applicant.
VILLAGE OF SLOATSBURG PARCEL
A number of commenters questioned whether a new residential lot was being proposed in the
Village of Sloatsburg, and, if so, why it was not disclosed in the DSEIS. In acquiring land within
Sloatsburg, the Related Companies entered into a contract with one of the sellers, such that her
compensation is to be realized through the creation and transfer of a lot to her. The land on
which the lot would be located is outside and unrelated to the Proposed Modifications and the
lot’s creation would occur whether or not the Proposed Modifications are approved and would
be created entirely independent of the approval and development of Tuxedo Reserve.
The subdivision of the land for that lot would have to be approved by the Village of Sloatsburg
entirely independent of the Tuxedo Reserve Project. The Village of Sloatsburg will be required
to conduct an environmental review of that proposed subdivision per SEQRA. The Village of
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Chapter 1: Description of the Proposed Modifications
Sloatsburg will also be required to take into account the Project Approvals and the
environmental impacts of Tuxedo Reserve when making its determination of significance
regarding the subdivision. As the one lot in Sloatsburg is entirely independent from and
unrelated to Tuxedo Reserve, there is no impermissible segmentation. Further, this lot will not
require Tuxedo Reserve access, utilities, or infrastructure to comply with Sloatsburg Village
zoning code. Therefore, this potential single-family lot has not been included in the analysis of
the Proposed Modifications. Notwithstanding the above, impacts associated with the creation of
one lot to be used for a single family dwelling is deemed insignificant.
VILLAGE OF SLOATSBURG STORMWATER BASIN
The Proposed Modifications, as described in the DSEIS, included a proposal to allow the direct
discharge of clean stormwater into the Ramapo River, a fourth order stream. The DSEIS stated
that in the event that the waiver to allow direct discharge is not approved by the Village of
Sloatsburg and the Rockland County Drainage Agency, the Applicant had developed an
alternative design which included the installation of a detention/recharge basin along Quail Road
in the Village of Sloatsburg, which would be designed to meet all state and local requirements
for stormwater detention. The detention/recharge alternative was also described in the Technical
Memorandum.1
Since the publication of the Technical Memorandum and DSEIS, NYSDEC has issued a new
SPDES General Permit for Stormwater Discharges from Construction Activity (GP-0-10-001).
This permit was issued in January 2010, and became effective on January 29, 2010. It is noted
that a new NYSDEC Stormwater Design Manual is expected to be approved in the next few
months, and it is expected that direct discharge will no longer be permitted once the new manual
is adopted. In anticipation of this policy change, the detention/recharge basin in Sloatsburg is
now the preferred alternative. The detention/recharge basin would require Village of Sloatsburg
and Rockland County Drainage Agency approval. Both the direct discharge and the stormwater
basin alternatives were evaluated in the Technical Memorandum and found by the Town Board
not to have the potential to generate a new significant adverse environmental impact (please
refer to pages 27 and 28 of the Technical Memorandum, which was included in Appendix A of
the SEIS). That conclusion has not changed. In either instance, all of the stormwater
requirements set forth by NYSDEC will be met or exceeded.
ARCHAEOLOGICAL AND HISTORICAL RESOURCES
A number of commenters raised questions regarding potential historical and archaeological
resources on the property, specifically, the alleged presence of Native American remains and
alleged alternative location of the Continental Road. In response to these comments, the Project
Site was re-evaluated for impacts to these potential resources. No additional impacts beyond
those previously disclosed are anticipated.
D. PERMITS, APPROVALS, AND REFERRALS REQUIRED FOR THE
PROPOSED MODIFICATIONS
The Proposed Modifications would not change the approvals for the Project enumerated in the
2003 FEIS. To approve the Proposed Modifications, as revised and described in this FSEIS, the
following additional approvals and referrals are required. Copies of the SDEIS have already
been filed with the agencies listed below. Copies of this FSEIS will also be filed with each
agency upon its acceptance as complete. The Rockland County Drainage Agency has been
informed of the drainage basin modification (see letter in Appendix K), and will receive a copy
of this FSEIS.
1
Technical Memorandum Figures 19A and 19B, which depict the location of the proposed basin, have
been reproduced as Figures 2-1 and 2-2 in Chapter 2, “Land Use, Zoning, and Public Policy,” of this
FSEIS.
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LOCAL APPROVALS
TOWN OF TUXEDO TOWN BOARD
•
•
•
Zoning map change
Amendment of Local Law 4A of 1999
Amendment of the Special Permit and the 2004 Preliminary Plan
VILLAGE OF SLOATSBURG PLANNING BOARD
•
Site plan approval for the stormwater basin and farm stand
ORANGE COUNTY REFERRALS
ORANGE COUNTY PLANNING DEPARTMENT
•
General Municipal Law (GML) Review
ROCKLAND COUNTY
ROCKLAND COUNTY DRAINAGE AGENCY
•
Drainage permit
ROCKLAND COUNTY PLANNING DEPARTMENT
•
General Municipal Law (GML) Review
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DRAFT
Chapter 2:
Discussion of Potential Environmental Impacts
A. INTRODUCTION
This chapter summarizes and evaluates the potential environmental impacts from the Proposed
Modifications as revised and described in Chapter 1, “Project Description,” of this FSEIS, and
includes analysis of the Project refinements and relevant new information received by the Town
since publication of the 2009 DSEIS. As discussed below, the Proposed Modifications, as
revised, would not have the potential to generate any new significant adverse environmental
impacts. The topics below are the same as those addressed and analyzed in the DSEIS. The
supplementary studies undertaken that are included in this FSEIS do not identify any new
significant adverse environmental impacts in any subject area.
B. LAND USE, ZONING, AND PUBLIC POLICY
The Proposed Modifications, as revised, would not substantially alter the land use pattern of the
Project Site from the conditions that were analyzed in the DSEIS. The detention/recharge basin
along Quail Road in the Village of Sloatsburg, which had previously been analyzed as an
alternative design in the Technical Memorandum, would become the preferred design. As stated
in the DSEIS, it would comply with all applicable land use and zoning regulations.
The potential subdivision of land in the Village of Sloatsburg to create one new single-family
building lot is not part of the Proposed Modifications. The lot potentially would be carved out of
the parcel of land within the Village of Sloatsburg over which the private access road leading
into Tuxedo Reserve is located. That land is part of the overall Tuxedo Reserve Project only in
the sense that the access road and a proposed drainage basin for the Project are located on that
property. However, any future subdivision or other development of that parcel is not governed
by the Town of Tuxedo or the Project Approvals. Those matters, including any environmental
review (which would have to take into account Tuxedo Reserve), would be undertaken by the
Village of Sloatsburg.
The potential single-family home that could be constructed on the lot is an as-of-right use in the
Village’s R-40 zoning district. This lot will not require Tuxedo Reserve access, utilities, or
infrastructure to comply with the Sloatsburg Village zoning code. The lot would be designed to
comply with all applicable zoning and subdivision regulations of the Village of Sloatsburg, and
as an as-of-right use, it would not result in any significant adverse impacts to land use, zoning,
or public policy.
Pursuant to the Special Permit, Tuxedo Reserve is permitted to connect 80 dwellings to the
existing Hamlet Plant. However, as a result of recent communications with the New York State
Department of Environmental Conservation (“NYSDEC”), improvements would be required to
the existing Hamlet Plant prior to bringing these 80 dwellings into service. These improvements
would be the responsibility of the Applicant and would not have the potential to generate any
new significant adverse impacts to land use, zoning, or public policy.
C. ECONOMIC AND FISCAL ANALYSIS
Chapter 3, “Economic and Fiscal Analysis,” of the DSEIS has been supplemented and is
included in its entirety in Appendix C of this FSEIS. The Proposed Modifications, as revised,
would generate a net positive fiscal benefit to the Town in all phases of the development.
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June 21, 2010
As previously discussed, any improvements that would be required to connect the first 80
dwelling units of the Project to the Hamlet Plant would be the responsibility of the Applicant.
Therefore, the use of the Hamlet Plant would not result in any significant adverse economic or
fiscal impacts.
The as-of-right building lot in the Village of Sloatsburg would be required to pay any applicable
fees associated with the creation of that lot to the Village of Sloatsburg, and would undergo its
own environmental review. As the building lot has the potential to introduce one new singlefamily dwelling only, no significant adverse economic or fiscal impacts are anticipated.
D. ARCHAEOLOGICAL RESOURCES
The Proposed Modifications, as revised, would not generate any significant adverse impacts to
archaeological or historic resources. A number of commenters raised questions regarding
potential historical and archaeological resources on the property—specifically, the presence of
Native American remains and the location of the Continental Road. In response to these
comments, the Project Site was re-evaluated for impacts to these potential resources.
The Project Site was inspected by a licensed archaeologist to ascertain whether Native American
remains had been present and disturbed on the Project Site, as was claimed at the public hearing.
All new soil cuts in sand around the areas where access roads and test wells (previously
approved) had been drilled were inspected for archaeological material. No artifacts or remains
were observed.
Commenters on the DSEIS had also speculated that a “corduroy road”1 found on the Project Site
was a portion of the Continental Road constructed for use by George Washington’s Continental
Army. To determine the historic context of this road, two sections of one of the logs that form
the “corduroy road” were sent for dendrochronological analysis to the Tree-Ring Laboratory at
Cornell University.
The sections sent to the lab were complete cross-sections from a small tree, pith to bark, with a
maximum diameter of 16.1cm. The genus was ash, a Fraxinus species, either F. americana or F.
nigra, white or black ash, respectively. While an exact date of the sample could not be
determined, the analysis found that the excellent preservation of the log indicates that it is
probably a more recent construction, and is unlikely to be the remnants of the Continental Road
or a 19th century bridal path, as has also been speculated. The area of the Project Site where the
road was found is seasonally inundated, and dries out in the late summer months. The upper half
of each log is exposed to air for at least part of the year. Given this exposure, and type of wood,
the analysis concluded that the road most likely dates to the late 20th or early 21st century.
E. NATURAL RESOURCES
As previously discussed, pursuant to the Special Permit, Tuxedo Reserve is permitted to connect
80 dwellings to the existing Hamlet Plant. The Proposed Modifications would not alter this
authority. As a result of NYSDEC comments, plant improvements would be required prior to
bringing these 80 homes into service. These improvements would be the responsibility of the
Applicant and would have to be approved by NYSDEC. The prior improvements to the Hamlet
plant as approved by NYSDEC would prevent any significant adverse impacts to natural
resources.
As discussed in Chapter 1, “Project Description,” of this FSEIS, the Proposed Modifications, as
revised, identify as the preferred alternative the construction of a detention/recharge basin on
Tuxedo Reserve property within the Village of Sloatsburg, in lieu of direct discharge as
proposed in the DSEIS. The proposed basin location is situated between Quail Road and the
1
The term corduroy is used to describe the improvement of a road by placing logs across and
perpendicular to the path of travel, typically in a low-lying or swampy environment. The resultant
bumps in the road are much like the ridges of corduroy material from whence the name is derived.
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Chapter 2: Discussion of Potential Environmental Impacts
federal wetlands, as shown in Figures 2-1 and 2-2. Soil conditions at this location include deep
sands and gravels, making it a suitable location for recharging the aquifer. The basin location is
outside of the federal wetland areas, and is in a previously disturbed area, the majority of which
is open meadow with some areas of second growth trees. Therefore, no significant adverse
impacts to natural resources are anticipated.
The potential subdivision of one lot in the Village of Sloatsburg is not part of the Tuxedo
Reserve Project. Regardless, it is noted that the lot is located in an area characterized by second
growth field and forest communities, habitats common to the Sloatsburg portion of the site.
Potential impacts to natural resources would be evaluated by the Village of Sloatsburg during
subdivision review. Given the de minimus nature of this minor subdivision, no significant
adverse impacts to natural resources are anticipated.
F. HYDROLOGY AND STORMWATER MANAGEMENT
80 homes to the existing Town sewage treatment plant. The improvements that will be required
by NYSDEC to the existing Tuxedo wastewater treatment plant are not anticipated to result in
any significant adverse impacts to hydrology or stormwater management.
As previously discussed on page 2-1, the potential subdivision of one lot in the Village of
Sloatsburg is not part of the Tuxedo Reserve Project. The lot would be designed to comply with
all applicable subdivision regulations of the Village of Sloatsburg. The stormwater management
for any development in Sloatsburg would be independent of the Tuxedo Reserve Project.
Potential impacts relating to hydrology and stromwater management would be handled as part of
the environmental review conducted by the Village of Sloatsburg.
The proposed detention/recharge basin along Quail Road in the Village of Sloatsburg would be
designed to meet or exceed all state and local requirements for stormwater detention. In addition,
a diversion structure would be incorporated into the Quail Road bridge design at Station 58+00.
The diversion structure would have no effect on stream flows during normal low-flow
conditions. During large storm events, however, a portion of the streamflow would be directed
into a bypass pipe that would parallel Quail Road and discharge to the detention/recharge basin.
The basin would provide significant storage and attenuation of the flow, thereby reducing peak
discharge rates from the overall site to levels below pre-development rates. The stormwater
basin will be designed to meet or exceed NYSDEC standards.
G. CONSTRUCTION
80 homes to the existing Town sewage treatment plant. These improvements would be the
responsibility of the Applicant and would have to be approved by NYSDEC. The required
improvements would be to the existing plant and would not involve the type of construction
activity that would have the potential to generate any new significant adverse construction
impacts.
The proposed detention/recharge basin along Quail Road in the Village of Sloatsburg would be
constructed during the first phase of the project. The Proposed Modifications, as revised, would
not significantly alter the phasing plan presented and analyzed in the DSEIS (please refer to
Chapter 7, “Construction Impacts,” of the DSEIS). Therefore, this addition to Phase 1
construction is not anticipated to result in any significant adverse impacts.
The potential subdivision of one lot in the Village of Sloatsburg is not part of the Tuxedo
Reserve Project. Any construction on this lot would be independent of the Tuxedo Reserve
Project, and would undergo its own environmental review.
The Proposed Modifications would generate a net positive fiscal benefit to the Town in all
phases of the development. Therefore, no significant adverse economic or fiscal impacts during
the construction period are anticipated.
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RELATED
5.26.10
Figure 2-1
Alternative Detention/Recharge Basin Location Plan
RELATED
5.26.10
Figure 2-2
Alternative Detention/Recharge Basin Detail
Since the updated archaeological and historical studies found no new archaeological and
historical resources, and the construction of the Project would conform to the 2001
Memorandum of Understanding between the New York State Office of Historic Preservation
and the Related Companies, no significant adverse construction impacts are anticipated.
Therefore, the revisions to the Proposed Modifications would not have the potential to generate
any new significant adverse construction impacts.
H. GROWTH-INDUCING ASPECTS OF THE PROPOSED
MODIFICATIONS
The Proposed Modifications, as revised, would not have the potential to induce any new growth
not previously identified and analyzed in the 2003 FEIS or Findings Statement. The basin in
Sloatsburg would process only those stormwater flows generated by the Tuxedo Reserve
development and no greater number of units or bedrooms is proposed. The improvements to the
Tuxedo wastewater treatment plant would solely be for the purpose of handling the wastewater
generated by the eighty homes in Tuxedo Reserve previously approved and for which
connection to the Hamlet Plant was previously authorized.
I. IRREVERSIBLE AND IRRETRIEVABLE COMMITMENT OF
RESOURCES
The land that makes up the Tuxedo Reserve site is the most basic resource that would be
irreversibly committed. The Proposed Modifications, as revised, would include the construction
of a detention/recharge basin along Quail Road in the Village of Sloatsburg. This development
area has been accounted for in the estimates of overall land disturbance. Furthermore, this
revision would not materially alter the quantity or type of materials that would be required for
the Project from that which would have been required for construction of the 2004 Preliminary
Plan.
The 2003 FEIS did not find the commitment of the identified irreversible and irretrievable
resources to be a significant adverse impact. The revisions and refinements to the Proposed
Modifications would not significantly alter the resources to be irreversibly and irretrievably
committed.
J. UNAVOIDABLE SIGNIFICANT ADVERSE IMPACTS
The Proposed Modifications, as revised, would not result in any unavoidable significant adverse
impacts.
K. MITIGATION
Any and all mitigation measures identified in the 2003 FEIS, Findings Statement, Technical
Memorandum, DSEIS, and this FSEIS will be implemented. The only mitigation measure
identified in the 2003 FEIS and Findings Statement that will be modified is the improvements to
the intersection of Seven Lakes Drive. As detailed in the Technical Memorandum, this
modification is being made due to the discontinuation of a no-build project (please refer to the
Technical Memorandum). As the Proposed Modifications, as revised, would not have the
potential to generate any new significant adverse environmental impacts, no mitigation is
required beyond the mitigation required in the 2003 FEIS and Findings Statement. Those
mitigation measures would be continued. It is noted that the proposed stormwater basin in the
Village of Sloatsburg was previously considered and analyzed as alternative “mitigation” to
address stormwater flows generated by the proposed project in the DSEIS. As the preferred
alternative, the proposed basin would prevent the Proposed Modifications, as revised, from
having the potential to generate any significant adverse stormwater impacts. Finally, the
improvements to the Town’s wastewater treatment plant that would be required by the NYSDEC
prior to the connection of the Project’s first 80 homes, would also preclude the Proposed
Modifications, as revised, from having the potential to generate any potential significant water
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Chapter 2: Discussion of Potential Environmental Impacts
quality impacts arising from the disposal of the Project’s sewage. No further mitigation
measures are required.
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June 21, 2010
Chapter 3.0:
Comments and Responses – Introduction
A. INTRODUCTION
This Final Supplemental Environmental Impact Statement (“FSEIS”) addresses comments that
were made on the Draft SEIS (“DSEIS”) that were presented verbally at Public Hearings held on
October 26, 2009 and November 23, 2009, and comments made in writing by public officials,
area residents and their representatives, and interested and involved agencies.
The DSEIS, prepared on behalf of Tuxedo Reserve Owner LLC, an affiliate of the Related
Companies (the “Developer” or “Applicant”), analyzed the potential environmental impacts of
the proposed modifications (“Proposed Modifications”) to the Preliminary Plan and Special
Permit (the “Project Approvals”) of “Tuxedo Reserve” (the “Project”). The Project Approvals
were issued in 2004 after publication of the Final Environmental Impact Statement (“2003
FEIS”) for the Project in 2003 and the adoption of SEQRA findings (the “Findings Statement”)
in 2004. The Proposed Modifications to the Project Approvals do not alter many key elements of
the Project Approvals, including but not limited to the total number of units, the total number of
bedrooms, etc. To the extent that the Proposed Modifications do propose changes to the Project
Approvals, many of those Proposed Modifications were analyzed in a Technical Memorandum
(accepted by the Town Board) which concluded that the Proposed Modifications did not have
the potential to generate any new significant adverse environmental impacts not previously
identified and analyzed in the 2003 FEIS. The remaining Proposed Modifications, which the
Town Board determined may have the potential to generate new significant adverse
environmental impacts not previously identified and analyzed in the 2003 FEIS, are analyzed in
the SDEIS. Given the full and complete environmental review of the Project in the 2003 FEIS,
as well as the analysis of many of the Project Modifications in the Technical Memorandum, the
SDEIS does not analyze the Project in its entirety. Nonetheless, many comments received are
directed to matters that had been fully analyzed in the 2003 FEIS or are comments critical of the
overall Project independent of the Proposed Modifications, and are not comments directed to the
Proposed Modifications analyzed in the DSEIS. Responses to these comments note that the
comments are directed to matters that were previously analyzed in the accepted 2003 FEIS and
are beyond the scope of the SDEIS.
This chapter and the following chapters in the FSEIS summarize the substantive verbal and
written comments submitted on the DSEIS. Although most comments were submitted during the
comment period, comments have been included that were submitted outside the comment period
in deference to the commenter and in order to err on the side of inclusiveness. Similar comments
in terms of subject or technical points are grouped together, and the commenter(s) noted in
parentheses after the comment. Full transcripts of public testimony and complete
correspondence from which these summaries are drawn can be found in Appendices A and B,
respectively.
The Town received approximately 500 comments from approximately 125 individuals or groups
during the written comment period. Of these comments, approximately 150 were deemed to fall
in the following categories: legal comments, comments on subjects addressed in the Technical
Memorandum that was adopted by the Tuxedo Town Board and, comments which are nonsubstantive or otherwise outside the scope of specific potential adverse impacts identified by the
Lead Agency and analyzed in the DSEIS. The last set of comments are categorized further as
follows:
DRAFT
3.0-1
June 21, 2010
1. Comments Regarding the Applicant, Financial Arrangement and Agreements, and
General Opposition to the Overall Project
2. Comments Concerning the adequacy of prior SEQRA Reviews
3. Comments Addressing the DSEIS Process
Although these comments are not required to be addressed, to be inclusive, they are responded to
in full in Appendix C. Similar comments in terms of subject or technical points are grouped
together and the commenters are noted in parentheses after the comment. Full transcripts of
public testimony and complete correspondence from which these summaries are drawn can be
found in Appendices A and B, respectively.
B. COMMENTERS ON THE DSEIS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
Terence J. Donaghue, letter dated September 8, 2009.
John Kwasnicki, letter dated October 8, 2009.
Target Tuxedo Group, letter dated October 16, 2009.
Metro-North Railroad, letter dated October 21, 2009.
The Highlands Coalition, Andrew T. Chmar, Co-Chair, NYS Committee, letter dated
October 22, 2009.
Bryan Colwell, letter dated October 25, 2009.
John Kennard, Metro-North Railroad, letter dated October 21, 2009.
Bryan Colwell, verbal at hearing October 26, 2009.
Christian R. Sonne, letter dated October 26, 2009.
Susan Scher, written and verbal at hearing October 26, 2009.
Patsy Wooters, Chair Torne Valley Preservation Associated, written and verbal at hearing
October 26, 2009.
Betsy Kohn, Sierra Club North Jersey Group, written and verbal at hearing October 26,
2009.
Geoff Welch, Ramapo River Watershed Keeper, written and verbal at hearing October 26,
2009.
JoAnn Hanson, written and verbal at hearing October 26, 2009.
Mary Graetzer, written and verbal at hearing October 26, 2009.
Gary Pompan, written and verbal at hearing October 26, 2009.
Mary Yrizarry, written and verbal at hearing October 26, 2009.
Ulrich Pendl, written and verbal at hearing October 26, 2009.
Peter J. Regna, written and verbal at hearing October 26, 2009.
John Kwasnicki, written and verbal at hearing October 26, 2009.
Bonnie Franson, Tim Miller Associates, Inc., written comments dated October 26, 2009.
Evelyn David, verbal at hearing on October 26, 2009.
Dan Gladding, verbal at hearing on October 26, 2009.
Kristia Caverre, verbal at hearing on October 26, 2009.
Nils Gerling, verbal at hearing on October 26, 2009.
James Hays, written and verbal at hearing on October 26, 2009.
Mary Hanson, verbal at hearing on October 26, 2009.
Robert McQuilkin, verbal at hearing on October 26, 2009.
Alyse McCathern, verbal at hearing on October 26, 2009.
Kathleen Norris, verbal at hearing on October 26, 2009.
Charlie Hunt, verbal at hearing on October 26, 2009.
Ken Magar, verbal at hearing on October 26, 2009.
Houston Stebbins, written and verbal at hearing on October 26, 2009.
Michelle Lindsay, verbal at hearing on October 26, 2009.
John Kilduff, verbal at hearing on October 26, 2009.
Bill Sloe, verbal at hearing on October 26, 2009.
Thomas Wilson, verbal at hearing on October 26, 2009.
George Williams, verbal at hearing on October 26, 2009.
June 21, 2010
3.0-2
DRAFT
Chapter 3.0: Comments and Responses
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
Randy George, verbal at hearing on October 26, 2009.
Janet Burnet, verbal at hearing on October 26, 2009.
Cynthia Soroka, verbal at hearing on October 26, 2009.
Steve Gross, verbal at hearing on October 26, 2009.
Andrew Lawrence, verbal at hearing on October 26, 2009.
Chief Dwayne Perry, verbal at hearing on October 26, 2009.
Jeff Genser, verbal at hearing on October 26, 2009.
Ed McGowan, written and verbal at hearing on October 26, 2009.
Susan Goodfellow, written and verbal at hearing on October 26, 2009.
R. Daniel Gladding, letter dated October 29, 2009.
Thomas Bender, letter dated November 15, 2009
David Church, Orange County Planning, letter dated November 19, 2009.
Charles Jones, letter dated November 20, 2009.
Dena Steele, letter dated November 20, 2009.
Robert J Drennen, written and verbal at hearing on November 23, 2009.
James G. Barbour, written and verbal at hearing on November 23, 2009.
Margaret “Peggy” Wissler, written and verbal at hearing on November 23, 2009.
Steve Gross, written and verbal at hearing on November 23, 2009.
Mary Ellen Shaw, verbal at hearing on November 23, 2009.
Janet Burnet, written and verbal at hearing on November 23, 2009.
Howard Horowitz, verbal at hearing on November 23, 2009.
David Dupont, verbal at hearing on November 23, 2009.
Gardiner Hempel, verbal at hearing on November 23, 2009.
Lili Neuhauser, written and verbal at hearing on November 23, 2009.
Sally Spooner, written and verbal at hearing on November 23, 2009.
Barbara Du Pont, written and verbal at hearing on November 23, 2009.
Paul Bumbar, verbal at hearing on November 23, 2009.
Mary Graetzer, written and verbal at hearing on November 23, 2009.
John Yrizarry, written and verbal at hearing on November 23, 2009.
Alan Haywood, verbal at hearing on November 23, 2009.
James Hays on behalf of Joan Alleman, verbal at hearing on November 23, 2009.
Joan Alleman, written at hearing on November 23, 2009.
James Hays on behalf of Earl Stevens, verbal at hearing on November 23, 2009.
James Hays, verbal at hearing on November 23, 2009.
Lawrence Darby, written and verbal at hearing on November 23, 2009.
Dena Steele, verbal at hearing on November 23, 2009.
Francine Rauch, written and verbal at hearing on November 23, 2009.
Tom Wilson, written and verbal at hearing on November 23, 2009.
Dale Mottola, Tuxedo Chamber of Commerce, written and verbal at hearing on November
23, 2009.
Peter Regna, written and verbal at hearing on November 23, 2009.
Ulrich Pendl on behalf of Thomas Bender, verbal at hearing on November 23, 2009.
JoAnn Hanson, verbal at hearing on November 23, 2009.
Alan Barnett, written and verbal at hearing on November 23, 2009.
John Kilduff, verbal at hearing on November 23, 2009.
Ulrich Pendl on behalf of Phillip Seeman, verbal at hearing on November 23, 2009.
Kristia Cavere, verbal at hearing on November 23, 2009.
Nadia Cadavero, verbal at hearing on November 23, 2009.
Ulrich Pendl, written and verbal at hearing on November 23, 2009.
Leslie De Vore, written and verbal at hearing on November 23, 2009.
Will Russell, verbal at hearing on November 23, 2009.
Katherine “Keevie” Silvay, written and verbal at hearing on November 23, 2009.
Kimberly Andelberg, verbal at hearing on November 23, 2009.
Patsy Wooters, verbal at hearing on November 23, 2009.
John Kwasnicki, letter dated November 23, 2009.
Philippe Seeman, letter dated November 23, 2009.
DRAFT
3.0-3
June 21, 2010
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
Helmut Nimke, PE, E-mail, dated November 25, 2009.
Keevie Silvay, E-mail, dated December 1, 2009.
James G. Barbour, letter dated December 1, 2009.
Rajdeep Bhathal, E-mail, dated December 9, 2009.
Terryanne Gmelch, E-mail, dated December 14, 2009.
Ann Zgonena, letter dated December 15, 2009. (identical to Rob Zgonena)
Rob Zgonena, letter dated December 15, 2009. (identical to Ann Zgonena)
Nancy Hays, letter dated December 15, 2009.
Dena Steele, letter dated December 17, 2009.
Dena Steele, letter dated December 18, 2009.
Michael Lefebvre, E-mail, dated December 19, 2009.
Christian R. Sonne, letter dated December 19, 2009.
Passaic County Board of Chosen Freeholders, Resolution, dated December 22, 2009.
John Lindsay, letter dated December 23, 2009.
Edward Lenik, letter dated December 26, 2010.
William Schmidt, letter dated December 28, 2009.
R. Michael N'Dolo, Camoin, written report, dated December 28, 2009.
Corinne Brown, letter dated December 29, 2009.
Georgette Campbell, Orange & Rockland Utilities, letter dated December 29, 2009.
Kathleen Caren, letter dated December 29, 2009
Douglas Mackey, SHPO, letter dated December 29, 2009.
S. Judy and Dirk Salz, letter dated December 29, 2009.
Brian Ketcham, PE, letter on behalf of the Tuxedo Land Trust, dated December 29, 2010.
Alexander Gates, Highlands Environmental Research Institute, letter dated December 30,
2009.
Anthony Oliveri, Dolph Rotfeld, letter on behalf of the Tuxedo Land Trust, dated
December 30, 2009.
Paul Rubin, HydroQuest, letter on behalf of the Tuxedo Land Trust dated December 31,
2010.
Paul Gluck, E-mail, dated December 31, 2009.
Michael Sterthous, letter dated December 31, 2009.
Thomas Wilson and John Kilduff, Tuxedo Land Trust, Inc., letter dated December 31,
2009
John Kwasnicki, letter dated December 31, 2009.
Ralph Macchio, letter dated December 31, 2009.
Ralph Macchio, letter dated December 31, 2009. (different from above)
Stephen Gross, letter dated December 31, 2009.
Howard Horowitz, letter dated January 1, 2010.
Robin O’Hearn, Skylands Clean, letter dated January 1, 2010.
Charles and Ann Marie Hunt, letter dated January 1, 2010.
Helmut Nimke, PE, letter dated January 3, 2010.
David Church, Orange County Planning, letter dated January 4, 2010.
Michele Lindsay, letter dated January 4, 2010.
Michele Lindsay, letter dated January 4, 2010.
Salvatore Corallo, Rockland County Planning, letter dated January 5, 2010.
Frank Peverly, letter dated January 11, 2010.
June 21, 2010
3.0-4
DRAFT
Chapter 3.1:
Comments and Responses
Description of the Proposed Modifications
A. DESCRIPTION OF THE PROPOSED MODIFICATIONS
Comment 1-1:
Given SEQRA's mandate, it can only be presumed that in 2004 and
prior years when the Town Board reviewed the master plan for the
project as the SEQRA lead agency, conscious decisions were made
about the location of the R-l, R-2 and Open Space areas in order to
avoid and minimize potentially adverse environmental impacts
attributable to the project. In other words, allowable density and Open
Space areas were designated as such based upon the existing
environmental conditions of the overall project site, and the resultant
conservation priorities assigned by the SEQRA lead and involved
agencies to various portions of the project site. Under the new plan,
however, all of the underlying analysis which led to the location of the
R-1, R-2 and Open Space areas as a means of ensuring that
environmental impacts were avoided and minimized is being ignored,
und the environmental consequence of the change in location of the R1, R-2 and Open Space areas overlooked. Simply put, the premise
asserted in the SDEIS that as long as the total density of the project
remains unchanged, no additional or different environmental impacts
will result, is belied by the record previously established by the Town in
analyzing the project. (Sterthous)
Response 1-1:
The R-1 zoned lands on the tract were created in the 1970s and were not
necessarily reflective of areas that are environmentally sensitive—R-1
lands were to be left as open space or developed with low-density
residential uses to satisfy a variety of objectives stated in the Town’s
master plan. The PID regulations included an incentive to set aside R-1
zoned lands as open space—the developer received additional
residential density for the open space set aside. Not all R-1 zoned lands
are environmentally sensitive and not all lands that are environmentally
sensitive are zoned R-1. For example, there are existing R-2 and LIO
zoned lands on the Northern Tract that will remain as open space as per
the Project Approvals since timber rattlesnake are present on this tract.
Thus, it is possible to amend the boundaries of the R-1 zones without
impacting environmentally sensitive areas of the property. As part of the
Proposed Modifications, portions of the Southern Tract that were zoned
R-1 following the issuance of the Project Approvals would be rezoned
to R-2 to allow development to occur in areas presently designated as
open space. Conversely, portions of the Southern Tract that are now
zoned R-2 and would be preserved as open space under the Proposed
Modifications and would be rezoned to R-1. The re-zonings would
DRAFT
3.1-1
June 21, 2010
result in a net gain of 3.25 acres to the R-1 zoning district. The
Proposed Modifications leave the vast majority of open space
unchanged as designated in the Project Approvals. Therefore, the basic
premise of the Project Approvals remains. To the extent that the
Proposed Modifications would open certain areas to development that
had previously been designated as open space, those Proposed
Modifications have been fully analyzed in the DSEIS, regardless of the
fact that overall Project density remains unchanged (see Chapter 2,
“Land Use, Zoning, and Public Policy,” of the DSEIS). That analysis
confirms that the Proposed Modifications would not have the potential
to generate any new significant adverse environmental impacts not
previously identified and analyzed in the 2003 FEIS, since more open
space is being created, no additional residential units are being
proposed, and the R-1 Zoning District is more restrictive than the R-2
Zoning District. Therefore, no significant adverse impacts to land use,
zoning, or public policy are anticipated.
Comment 1-2:
I trust that these proposed amendments are not touching: first, our
PILOT agreement, which called for the developer to pay the Town of
Tuxedo $150,000 a year for fourteen years in the area on the Northern
Tract, that was non-residential, and which they considered probably
wouldn’t be development for some time; and second, the original
program set aside $6 million from the applicant to revitalize the hamlet,
$2 million in grants, $4 million in revolving loans, because we had done
a very thorough study of the hamlet, and we had a revitalization plan
that we were hoping this applicant would help fund, in exchange for
doubling the size of the Town. (McCathern)
Response 1-2:
The Proposed Modifications do not propose any changes to the existing
Special Permit’s requirements to pay a PILOT of $60,000 per year for
ten years to the Village of Sloatsburg, to pay the Town of Tuxedo
$150,000 annually for a period of 14 years (which may be offset by the
amount of real property taxes generated annually by any nonresidential
improvements constructed on the Northern Tract), $2,000,000 in grant
money, and $4,000,000 in revolving loans. As of January 2010, Tuxedo
Reserve has paid six annual installments of the $60,000 PILOT to the
Village of Sloatsburg, and the required $1,000,000 payment of grant
money to the Town of Tuxedo. Any historic agreements between the
Applicant and the municipal bodies are part of the public record. A
listing of these agreements was not required as part of the DSEIS. See
Appendix B, “Tuxedo Hamlet Revitalization Fund,” of the Special
Permit.
Comment 1-3:
The Developer has an application before the Board. The Developer has
previously negotiated a deal and wishes to change it to the Town’s
detriment. The benefits to the Town in doing so should be clear,
persuasive and easily explained to the community. (Gluck)
Response 1-3:
The DSEIS clearly identifies the purpose and need for the Proposed
Modifications.
June 21, 2010
3.1-2
DRAFT
Chapter 3.1: Comments and Responses – Description of the Proposed Modifications
Comment 1-4:
Since about 70% of the Town is already permanent open space even
before the addition of Tuxedo Reserve's open space acreage there is no
hope of achieving a reasonable population through building elsewhere
in the Town. In fact, if all of Tuxedo Reserve's property, instead of only
70% of it as now proposed, is designated forever wild, there are
probably more potentially buildable lots inside the Incorporated Village
of Tuxedo Park than in the remainder of the Town of Tuxedo. (Sonne
12/19/09)
Response 1-4:
Comment noted. A determination of the number of buildable lots in the
Village of Tuxedo Park is beyond the scope of the DSEIS.
Comment 1-5:
Regardless of the size or the location of new commercial uses, we state
that any such activity outside of the Hamlet be coupled with every
possible effort to address walk-ability between the Tuxedo Reserve
homes and the Hamlet. This is especially true in light of another Special
Permit modification: to locate homes within close proximity to
Mountain Lake. This and what appears to be a proposed trail leading
closer to the Hamlet area opens up an opportunity for more pedestrian
connections. (Church)
Response 1-5:
Comment noted. Intervening topography between the Mountain Lake
area and the Tuxedo hamlet make it difficult to establish a trail
connection. A viable trail connection along an existing path could link
Mountain Lake to the Village of Tuxedo Park to the north. However,
the Village is an historic gated community and no such connection is
proposed. A pedestrian trail will connect the North Ridge neighborhood
to the hamlet via Mountain Road in the hamlet. See also Response 1-6
below.
Comment 1-6:
In a letter dated October 21, 2008, this Department expressed its
concern for whether or not the proposed project will be adequately
integrated into the fabric of the Town of Tuxedo. At that time, this
Department required: "That the Town and project applicant document
the feasibility of improving Mountain Road as a regular access way for
residents of Tuxedo Reserve to the Hamlet. It is noted that the point
where the access road from the Northridge Subdivision meets Mountain
Road is less than 1/2 a mile from where Schoolhouse Road meets Rte
17. That the Town and project applicant document the feasibility of
creating a connection between the Southern Tract of Tuxedo Reserve
via the Mountain Lake area to Hospital Road in the Hamlet. The nearest
proposed homes at Mountain Lake are situated about ¾ of a mile from
where Hospital Road could be accessed by the Tuxedo Reserve
property. Although the terrain appears to be steep and the land there is
largely untouched, a paved trail could be considered, allowing cycling,
rollerblading and walking to the Hamlet. That the Town document the
feasibility of expanding transit opportunities into the Tuxedo Hamlet
area for the purposes of creating a connection for Tuxedo Reserve
residents. It is noted that a private jitney service has been proposed by
the applicant. We would like to encourage the Town, with the applicant,
DRAFT
3.1-3
June 21, 2010
to consider how this could be expanded in the future, to accommodate a
broader range of riders. This Department is prepared to offer some
assistance to this end." (Church)
Response 1-6:
In the prior SEQRA review for the Project Approvals there was
extensive consideration by the Town Board of a full street connection to
Mountain Road. For the reasons set forth in the 1999 DSEIS, 2003
FEIS, and other environmental documents it was determined that such a
connection is not feasible. As part of the approved North Ridge
subdivision application (reviewed by the Orange County Department of
Planning), Tuxedo Reserve provides an emergency connection to
Mountain Road as required by the Special Permit. This connection also
serves as a trail connection to the Hamlet. Slopes limit the ability to
connect the former “Valley Road” right-of-way that adjoins Mountain
Lake to Hospital Road. Reductions or other changes to the required
jitney service required by the Special Permit are not proposed. The
Town will consider future ridership or change in demand and
investigate, in conjunction with the Applicant and County,
enhancements to the Jitney service.
Comment 1-7:
Do the requested changes help or hinder the Town and those goals that
they hope to achieve from having this development program happen.
After long negotiations the 2004 permit said that under no
circumstances shall the number of multi-family units be greater than
305. Now the Related Companies is sharply increasing that number to
413, and its loading 390 of them into the first phase of construction. (J.
Hanson)
Response 1-7:
The Special Permit approved 305 multifamily units, which were all to
be constructed in Phase I. The Proposed Modifications propose 431
dwellings, of which 413 would be built in Phase I. The net increase in
multifamily units in Phase I is attributable to the construction of agerestricted dwellings, which were to be built in Phase II as per the
Special Permit. The Town Board has examined the impact of the change
in phasing and dwelling unit modifications. With the Proposed
Modifications, the Project would continue to have a net fiscal benefit to
the Town.
Comment 1-8:
(Residential Unit Count, Page 1-7, Table 1-2A) The applicant has stated
that the purpose of these amendments is to improve the project by
avoiding certain sensitive environmental areas. If so, the new plan
should essentially consist of a reconfiguration of the layout. This,
however, is not the case. Rather, the proposed mix of units has been
changed to such an extent that it violates the intent and spirit of the
2004 Special Permit. The approvals contained within that permit were
the result of many years of hard work and negotiation by the previous
Town Board, which are now in danger of being obviated by the current
proposal. In particular, the Special Permit states in many places, but
none more prominent than in all caps on page 10:
June 21, 2010
3.1-4
DRAFT
"UNDER NO CIRCUMSTANCE SHALL THE TOTAL NUMBER OF
RESIDENTIAL UNITS IN THE PROJECT EXCEED 1,195 NOR THE
NUMBER OF SINGLE FAMILY DETACHED OR SEMIDETACHED UNITS IN THE PROJECT BE LESS THAN 866 NOR
THE NUMBER OF MULTI-FAMILY UNITS BE GREATER THAN
305."
This Board has respected the maximum 1,195 total number as inviolate
as a result of this permit. Why, then, should the other numbers set by
this permit be any less inviolate? The Special Permit established that
UNDER NO CIRCUMSTANCE shall the number of single family or
semi-detached units be less than 866, yet the proposed amendments
would lower that number to 764, a full 102 units less than the minimum
number set by the Special Permit, and 126 less than the 890 units in the
approved plan! Likewise, the Special Permit established that UNDER
NO CIRCUMSTANCE shall the number of multi-family units be more
than 305, yet the proposed amendments would raise that number to 431,
a full 126 units, or an incredible 41.3% above the cap set in the Special
Permit. Nowhere has the applicant indicated that changing the housing
mix is necessary to avoid sensitive environmental areas, and if it were,
it would violate the intent and spirit of the "under no circumstance"
wording of the Special Permit. Under such circumstances, avoidance
could instead be achieved by lowering the total unit count by some
amount beneath the maximum 1,195 unit cap. (Gross 12/31/09)
Response 1-8:
DRAFT
The language in the Special Permit does not prohibit and, in fact, cannot
prohibit the Town Board from amending the Special Permit to change
the unit mix and numbers if it determines that an amendment is
appropriate. The Special Permit language, including the phrase “under
no circumstance,” was included in the Special Permit to confirm to the
Planning Board and other Town boards and officials that they had no
discretion to change the provisions of the Special Permit regarding these
matters. However, no Town Board has the power to bind future Town
Boards and prevent a future Town Board from amending the Special
Permit. Amendments to the Project’s Special Permit are allowed under
the Town’s land use regulations governing Planned Integrated
Developments applicable to the Project. Accordingly, this Town Board
has the power to amend the Special Permit and revise the unit and lot
counts. The increase in total multifamily units (and corresponding
decrease in total single family units) is attributable to a revised mix of
the active adult age-restricted housing. Under the 2004 Special Permit,
the age-restricted program consisted of only cottage and carriage
houses, both considered single family product. In the Proposed Plan, the
age-restricted program consists of a more varied unit mix including 59
single-family units and 138 townhouse and multi-family units
(Accordingly, the number of non-restricted single family units has
actually increased by 16 units in the proposed plan.) Tuxedo Reserve’s
market study has shown that the market for active adult product remains
significantly strong for well-amenitized, full-service, single-floor
apartments particularly when integrated into a neighborhood setting.
Planning for and delivering desirable active adult housing product will
bode well for both Tuxedo Reserve and the Town, as the units will sell
3.1-5
June 21, 2010
faster and generate quality ratables earlier and without any additional
schoolchildren.
Comment 1-9:
(Neighborhood Retail and Commercial, and Community Amenities,
Page 1-8, Table 1-3) Likewise, the Special Permit states on page 9, "In
no event shall Project Amenities and Commercial Uses on the Southern
Tract exceed 70,000 square feet." Yet, the proposed amendments would
raise this square footage by nearly 50% to 103,000 square feet, and this
amount doesn't even include the 3,000 square-foot farmer's market. It
seems odd that the cap on the number of housing units is treated as
inviolate, but the corresponding cap on the square footage of
commercial and community amenities is not. (Gross 12/31/09)
Response 1-9:
Any provision of the Special Permit can potentially be amended by the
Town Board in compliance with the applicable zoning law of the Town
governing planned integrated developments and in compliance with
SEQRA. Any such proposed amendment must be evaluated on its own
merits. Thus, the Town Board has the authority and power to amend the
caps imposed by the extant Special Permit. The Applicant has requested
an amendment to the Special Permit to increase the amount of square
footage authorized for non-residential uses. The increase in the
proposed non-residential uses at Tuxedo Reserve is almost entirely
attributable to the proposed 27,000 square foot increase in the
neighborhood retail and commercial component within the Commons.
This increase, which may seem significant on a percentage basis, still
only increases the total retail/commercial space to 30,000 square feet,
which is considered by the applicant’s market study to be a minimum
amount of space required to make the retailers economically viable.
Additionally, the Applicant’s market study of the proposed retail
indicated that if this threshold of quality neighborhood retail was not
included in the proposed development, the residents would generally
opt to make purchases at retail centers outside of Tuxedo, leaving
potential retail demand uncaptured by Town establishments.
Comment 1-10:
(Library, Page 1-8, Table 1-3) Table 1-3 notes a 5,000 square-foot
allowance for a library building, and makes reference to a 0.5-acre
parcel for the library, but this is inadequate per the assessment of
Library Board President Barbara Dupont, who notes in her July 1, 2009,
letter that serving the Tuxedo Reserve project will require a 10,000
square foot building on 3 acres. Yet, in the fiscal analysis, figures are
used that reflect the construction of a 10,000 square foot building for the
library. If so, then the total square footage noted in Table 1-3 should be
increased by 5,000 square feet to be consistent with the fiscal analysis.
This would make the total 108,000 square feet plus another 3,000
square feet for the farmer's market, FAR above the 70,000 square foot
cap established by the Special Permit. (Gross 12/31/09)
I also notice that this table lists five thousand square feet for a library,
but I'm not sure where that is, and whether the area of disturbance and
impervious surfaces have been calculated for this as well. However I
June 21, 2010
3.1-6
DRAFT
see on page 3-16 that the fiscal analysis assumed a ten thousand square
foot library. So where is the other five thousand square feet? (Graetzer)
Response 1-10:
The 0.5-acre lot for the library and its associated 5,000-square-foot
building is located, as required, within the Commons and is adjacent (to
the north) to the proposed recreational facility on the Preliminary Plan.
The library lot and building have been included in the calculations for
disturbance area and impervious surface. The correct square footage for
the library, as used in the analysis and identified in Table 1-3, is 5,000
square feet. The mention of 10,000 square feet in the fiscal analysis is a
typo. This application does not propose to amend the requirement for
the Applicant to donate the 0.5-acre parcel within the Commons to the
Tuxedo Park Library.
Comment 1-11:
When I searched the Tuxedo Reserve website, I found an interesting
description of their plans for that site. It includes a club, the Mountain
club, located in a residential enclave at the edge of Mountain Lake and
would be home to an outdoor ice rink, platform tennis courts, a summer
lawn, and a rock beach at the end of the lake. Is that in the SEIS? I
found an appendix to an appendix with one sentence that notes
Mountain Lake boat house is being proposed. This whole part of the
development has not been identified in any meeting and I was unaware
that Mountain Lake was being developed as a recreational resource. The
lake and surrounding area is a NYS wetland and would require a permit
for anything that they do there, including just the beach. This impact
assessment has never been part of the SEQR documentation. (Scher,
Gross 10/26/09)
There is a three thousand square foot boat house proposed for Mountain
Lake. Where exactly in this document does it say that Mountain Lake is
supposed to be used for recreational purposes? Mountain Lake is in the
middle of a DEC regulated wetland. From what I read, wasn't the whole
purpose of moving the development into this area to avoid wetland
impacts. Well, I can't see how you can build a boat house and have
people frolicking on the lake without disturbing the wetlands; can you?
(Graetzer)
Response 1-11:
DRAFT
The Applicant has offered the Town Board the following response with
regard to its website: “The Tuxedo Reserve website has been updated to
remove outdated or inaccurate descriptions of the Project and of the
Proposed Modifications. The Proposed Modifications would include
3,000 square feet of community recreational space located within the
Mountain Lake neighborhood (not on Mountain Lake), which is
identified as “the boathouse” for marketing purposes. The building is
simply a community facility and is not located on or adjacent to
Mountain Lake. In addition, there are no plans for this facility to be
used to support boating or other recreational activities on Mountain
Lake and no such recreational uses for Mountain Lake are proposed.
Use of this facility would be limited to community meetings and
neighborhood activities.”
3.1-7
June 21, 2010
Comment 1-12:
On page 1-8, table 1-3, 2003 FEIS versus proposed modifications,
neighborhood retail and commercial and community amenities lists all
the non-residential structures that are proposed to be built by Tuxedo
Reserve. I see in that list, three trailhead buildings amounting to a total
of sixty-two hundred square feet of building. Can anyone tell me where
these structures are? I can't seem to find them anywhere on the plans. I
am also assuming if they are bothering to build such significant
structures, one measuring three thousand square feet, that these
recreational amenities will probably also have parking associated with
them. But again none of this can be determined because it doesn't
appear on the plans, and certainly it wasn't included in any area of
disturbance calculations or impervious surfaces et cetera. (Graetzer)
Response 1-12:
The three trailhead buildings are identified on the Preliminary Plan at
the following locations: (A) At the bend in Lower Mountain Lake Road
immediately west of the Commons (up to 1,500 sf); (B) Along Bridle
Trail Road in the center of Phase 2 (up to 3,000 sf); and (C) At Kensett
Square in Phase 3 (up to 1,500 sf). At each of these locations parking is
provided on street. These facilities were included in calculations for
disturbance area and impervious surface.
Comment 1-13:
(Neighborhood Amenity Buildings, Page 1-8, Table 1-3) Table 1-3
notes 10,500 square feet of proposed community owned buildings that
are not elsewhere described in the DSEIS, nor are the potential impacts
of these buildings assessed. The full list is as follows:
Maintenance and Recreation Equipment Storage - Upland Park
Boathouse - Mountain Lake Neighborhood
Trailhead Building - Lower Mountain Lake Road
Trailhead Building - Bridal Trail
Trailhead Building - Kensett Square
Particularly disturbing is the revelation of a boathouse at Mountain
Lake. By all public representations to date, it appeared that the applicant
was respecting the sensitive nature of the lake, avoiding encroaching no
further than 100 feet from the edge of the wetland surrounding the lake.
This obscure mention in Table 1-3, and again in Table 2-3, is the only
place that the boathouse comes up in the entire DSEIS. Searching as
well through the Technical Memorandum (Appendix A), there is again
no mention. The one and only place where there is any disclosure of this
boathouse is in an appendix to the Technical Memorandum (Appendix
F - Recreational Facility Needs Assessment). Even here, despite the
nature of the report focusing on recreation at Tuxedo Reserve, there is
only one mention in a group of item in one sentence, which reads,
"Facilities which would be open to the public for recreation include the
Mountain Lake boathouse, four-mile loop trail for cyclists and joggers;
18 miles of walking trails with a trailhead connection to Sterling Forest
State Park; after-school-hours access to an artificial turf athletic field
suitable for football, soccer, lacrosse, baseball, and softball; and five
pocket parks programmed with half-court basketball, playground
June 21, 2010
3.1-8
DRAFT
equipment, stroller paths, and picnic pavilions." Looking at the Tuxedo
Reserve website, however, there is more information than has been
disclosed to in the DSEIS to the Town Board or the public. Promoted
under "Amenities", the website promotes "Lake Activities" and provides
this description of proposed recreational amenities at Mountain Lake:
"The Mountain Lake Club, located in a residential enclave at the edge of
Mountain Lake, is home to an outdoor ice rink, platform tennis courts, a
summer lawn, and a rock beach at the edge of the lake." From these two
sentences, one found in an appendix to an appendix of the DSEIS, and
the other only on a separate website, it can be discerned that Tuxedo
Reserve intends to develop Mountain Lake into a major recreational
facility, complete with a boathouse, beach, ice rink, and tennis courts,
and that these facilities will be open to the public. This could expose
Mountain Lake to intensive, damaging recreational use over the long
term. In the short term, however, the proposed activities also represent a
significant encroachment on a NYSDEC regulated wetland which has
not been disclosed to the Town Board, which seems completely
contrary to the stated purpose of proposing development in this area
specifically in order to avoid wetland impacts. Improvements which
provide access to Mountain Lake for boating and a beach have not been
shown on any project plans, nor included in any analysis of impacts,
such as the area of disturbance mapping and calculations. Obviously,
this is an area of concern that requires much more disclosure and
analysis. (Gross 12/31/09)
Response 1-13:
See Response 1-11. The Tuxedo Reserve website has been updated to
remove outdated or inaccurate descriptions of the Project and of the
Proposed Modifications. The Proposed Modifications would include
3,000 square feet of community recreational space located within the
Mountain Lake neighborhood (not on Mountain Lake), which is
identified as “the boathouse” for marketing purposes. The building is
simply a community facility and is not located on or adjacent to
Mountain Lake. In addition, there are no plans for this facility to be
used to support boating or other recreational activities on Mountain
Lake and no such recreational uses for Mountain Lake are proposed.
Use of this facility would be limited to community meetings and
neighborhood activities. The proposal for recreation facilities is
accurately described in the current application in front of the Town
Board. The location of a neighborhood community center (or
“boathouse”) in the proposed Mountain Lake neighborhood is included
on the Preliminary Plan and is well outside the 100-foot buffer
associated with the New York State DEC wetland surrounding
Mountain Lake, and therefore no adverse impacts to the wetland are
anticipated.
Comment 1-14:
I am concerned with many aspects of the Proposed Modifications to the
original Special Permit such as expansion of the retail space, the
unrealistic assumptions for home values and tax projections; and the
proposed change in the housing mix to more multi family units.
(Lindsay)
DRAFT
3.1-9
June 21, 2010
Response 1-14:
With regards to home and commercial values, the Town has enlisted the
services of an independent consultant to review the projected values and
tax projections that were the basis for the fiscal impact analysis. The
reader is referred to Chapter 3.3, “Comments and Responses –
Economic and Fiscal Analysis,” of this FSEIS addressing fiscal
comments. The independent consultant has advised the Town that the
projections of home value and tax projections are reasonable. Please
refer to the technical correspondence regarding the Fiscal Analysis
contained in Appendix F.
Comment 1-15:
Why is Related looking to change the original plan in the first place?
Many years of collaboration resulted in the 2004 approval, which was
considered acceptable to all parties. Why is this now, especially in light
of the worst real estate development market in our lifetime, being readdressed? (Zgonena)
Response 1-15:
The reasons for the Proposed Modifications are set forth in the Project
Description in the DSEIS. The Proposed Modifications are designed to
respond to changing market conditions and to better protect certain
environmentally sensitive but otherwise unregulated lands.
Comment 1-16:
I am particularly concerned that previously approved lots are being
removed from a new plan and replaced with previously unapproved lots.
Exactly what is superior about the new sites? Why are the old approved
sites considered inferior to the new sites? Again, substantial work went
into the prior approved sites, so logic would conclude that those are the
best sites irrespective of anything. (Zgonena)
I am concerned, from a skeptic's standpoint that "new" sites are being
created and the "old" sites will be shifted to a so-called lot-reserve for
future development. There is nothing to prevent previously approved
sites from being pushed for development years hence. This is
completely contrary to the approval process of 2004. (Zgonena)
Response 1-16:
Please refer to Chapter 1, “Project Description,” of the DSEIS. As
indicated on Figures 1-5 and 5-2 thru 5-6, the Proposed Modifications
have relocated development to avoid disturbances to certain sensitive
but unregulated natural areas. These areas will not be developed in the
future. The Proposed Modifications do not call for creation of a “lot
reserve” at the locations where lots are currently allowed and which
would be designated as open space under the Proposed Modifications.
The reasons for the Proposed Modifications are set forth in the Project
Description in the DSEIS. The Proposed Modifications are designed to
respond to changing market conditions and to better protect certain
environmentally sensitive lands. The total number of dwelling units/lots
is capped at 1,195.
Comment 1-17:
First, although some adjustments would be expected; one, has Tuxedo
Reserve performed their due diligence in that ten year opportunity, since
they are now getting back in the ring? Two, when we issued the Special
June 21, 2010
3.1-10
DRAFT
Permit for 1195 units certain conditions were agreed upon, and expected
to be met. If denying building around Mountain Lake, which I think we
should deny, does not give the numbers desired, that is not the fault of
the town, nor its responsibility. Three, is three thousand square feet of
commercial space too little? Is thirty thousand square feet too much? It
seems the business community supports the shift. I am trying to imagine
Mr. Latini up the road trying to fill his space at Duck Cedar with the
new businesses in town who have set up their shop, and are hopeful.
And recently Augusta properties hoped to expand some retail
opportunities and he is—his father and he have paid taxes here for
decades. I really wonder how they might feel. (Rauch)
Response 1-17:
The Proposed Modifications do not alter any of the multiple protections
incorporated in the Project Approvals, including but not limited to the
requirement that the Special Permit runs with the land, that the
developer must post required performance bonds, etc. Regarding the
proposed increase in retail within the Commons as it relates to other
retail locations within the Town of Tuxedo, the retail within the
Commons is intended to provide basic neighborhood services to
residents within Tuxedo Reserve in a viable, walkable setting. The
market analysis included in the DSEIS concluded that the project could
support the additional retail space and would not negatively impact
existing retailers. Also, Augusta Properties is only now seeking project
approvals. It is anticipated that the inclusion of additional retail within
Tuxedo Reserve will not only increase its viability as a neighborhood
retail center, but also capture tax revenues for the Town that would
likely be lost otherwise. No comments were received from Mr. Latini or
the owner of Augusta Properties.
Comment 1-18:
We also understand that the modified development plans for the project
now identify commercial construction on lands in the Village of
Sloatsburg. However, a complete analysis of this project component
appears to be lacking in the SDEIS. (Sterthous)
Response 1-18:
The Special Permit requires that the Applicant receive site plan
approval from the Village of Sloatsburg for that portion of the primary
access road within Sloatsburg. This site plan approval was received in
December 2005 and the Town of Tuxedo was notified of this approval.
In 2007, the Village adopted revised regulations that rezoned a portion
of the site to the MU-1 Zoning District. Consistent with that zoning, the
Applicant is contemplating establishing a farm market stand which is a
permitted use in that district. The proposal is described in the DSEIS.
Comment 1-19:
The permits, approvals and referrals required for these Proposed
Modifications are listed on Pages 1-14 and 1-15. Site plan approval by
the Village of Sloatsburg and a GML review by this department are
required for the proposed 3,000 SF market stand. The proposed direct
discharge of clean stormwater into the Ramapo River requires review
and approval by the Rockland County Drainage Agency. These review
and approval agencies must be included on Pages 1-14 and 1-15.
(Corallo)
DRAFT
3.1-11
June 21, 2010
Response 1-19:
Comment noted, this has been corrected in the FSEIS.
Comment 1-20:
Are the Town of Tuxedo Board Members aware of any approvals from
the Village of Sloatsburg for Tuxedo Reserve land? Are the Town of
Tuxedo Board Members aware of any approvals from the Town of
Ramapo for Tuxedo Reserve land? Are the Town of Tuxedo Board
Members aware of any approvals from Orange County for Tuxedo
Reserve land? (Tuxedo Land Trust)
Response 1-20:
The Special Permit requires that the Applicant receive site plan
approval from the Village of Sloatsburg for that portion of the primary
access road within Sloatsburg. This site plan approval was received in
December 2005 and the Town of Tuxedo was notified of this approval.
The Project does not require any approvals or actions by the Town of
Ramapo. The Applicant has submitted, and will continue to submit,
applications to the various Orange County agencies as required by law,
and the Town of Tuxedo has and will continue to be notified of each of
those applications and approvals.
Comment 1-21:
This development is not scheduled to start until 2013. The developer is
unlikely to pull a building permit until close to that time, so the tax
status of the land is not likely to change in the intervening years. There
is time to negotiate with the Related Companies on these important
matters. If the Town stays with the currently authorized 253 multifamily
units, the Town will have the opportunity to see who the actual
developer is (Related is currently attempting a bulk sale) and to judge
whether age-restricted units are successful, how many children are
being generated by the multifamily units, what tax revenues are being
generated by the multifamily and condos and whether the developer is
achieving the high prices they have projected. If the first 253
multifamily units are a success for the Town, the Town can consider
modifying later phases to include additional multifamily units. (Hanson)
Response 1-21:
A total of 305 multi-family dwelling units are allowed by the Special
Permit. In response to public comments, the Town of Tuxedo retained
two outside consultants to review the economic and fiscal analysis in
the DSEIS. The Town retained Bay Area Economics (“BAE”) to review
the methodology utilized to estimate the number of school children
anticipated to be generated by the Project with the Proposed
Modifications. The Town also retained Real Estate Solutions Group,
LLC, (“RESGroup”) to review the market assumptions and fiscal
impact analysis presented in Chapters 3, “Economic and Fiscal
Analysis,” and 8, “Alternatives,” of the DSEIS. Based upon public
comment and the input from RESGroup and BAE, the Applicant revised
the economic and fiscal analysis in the DSEIS. Appendix D of this
FSEIS contains the revised DSEIS Chapter 3, “Economic and Fiscal
Analysis.” Appendix E contains the revised Residential Market Update
and Strategic Development Recommendations for Tuxedo Reserve,
Tuxedo, New York. Appendix F contains the Town consultants’
correspondence, review, and recommendations regarding the fiscal
analysis methodologies utilized in the preparation of the FSEIS.
June 21, 2010
3.1-12
DRAFT
In short, a thorough review of all of the information and analysis by the
Town Board and its consultants has revealed that the Proposed
Modifications would have a net positive fiscal impact in each phase of
the development.
Comment 1-22:
What happens when and if the current owner of the property divides it
up amongst the various developers; who will be responsible for it is
built out, architectural appearance, traffic, police, fire, DPW, water
service, pollution to the Ramapo River, or when you have nine hundred
children wanting to come to your public school? We need the answer.
(Norris)
Response 1-22:
The Proposed Modifications would not change any of the
responsibilities associated with the matters raised by the commenter.
Any homebuilder must fully comply with all of the Project Approvals,
as may be amended. The Architectural Review Board will review
proposed structures to assure compliance with the Project’s architectural
guidelines. Traffic will be monitored according to the monitoring
program created in the Project Approvals. Police and fire protection will
be provided by the Town. Water service will be provided in accordance
with the Project Approvals, subject to approval by NYSDEC and the
Orange County Department of Health. All discharges into the Ramapo
River will be pursuant to permits issued by the NYSDEC. As to the
number of school children projected to be generated by the Project, with
the Project Modifications, please refer to responses in Chapter 3.3,
“Comments and Responses – Economic and Fiscal Analysis,” of this
FSEIS.
Comment 1-23:
The proposed development is huge and there are many uncertainties,
some of which will not be known until construction is underway. If
things go poorly for the developer, they can seek another amendment to
the Special Permit, but what if things go poorly for the Town?
Shouldn’t the project be phased so that the Town has the opportunity to
review the project at intervals, in the event that projected tax revenues
don't materialize? The Special Permit specifies the number of units
allowed, it does not specify unit prices. The developer has the option of
building cheaper units, which would adversely impact projected tax
revenues. (Target Tuxedo Group) A “phased approach” of approvals is
the prudent and wise business approach. (Pompan)
I am concerned that there is not scaleable monitoring, so that if we don’t
hit this trigger point for phase one, then phase two and three are put on
hold or clamped down; there is optimistic residency figures in terms of
school children but if that balance changes because of the economic, I
haven’t seen the specific trigger points that say we will go no further
than phase one. (Hunt)
Phase one of the project requires that they build 75 units but the water
and sewer treatment facility isn’t going to be built unless 80 units are
built. The ramifications of this is that they build their 75 units and
DRAFT
3.1-13
June 21, 2010
fifteen, seventeen, twenty years from now, maybe we get to phase two,
and maybe you get your sewer treatment facility. (Williams)
Response 1-23:
The phasing of the Proposed Modifications takes into consideration the
tremendous upfront costs of the Project in terms of infrastructure
investment and that the phasing of the infrastructure is scaled to the size
of the development. Overall, as noted in the revised market assessment
undertaken at the request of the town, the product and prices that can be
expected to be generated by the Proposed Project might be somewhat
lower than projected in 2008, but are still sufficient to result in a viable
Project and with positive fiscal effects for the Town.
Comment 1-24:
In 2004, we included a lot of enforcement mechanisms in the Special
Permit and findings. I’m sure that you will not abandon them.
Specifically this includes traffic monitoring such that if a traffic impact
could not be mitigated, then building permits would be stopped. I’m
sure that you will not abandon them. (McCathern)
Response 1-24:
No changes to enforcement mechanisms will be undertaken.
Comment 1-25:
Specifically we ask that the town board not vote on any proposal until
such time as the board of fire commissioners has had the opportunity to
meet with representatives of Tuxedo Reserve, to hear the latest changes,
and final proposal which impact the above, and we have affirmatively
concurred with them. (Hempel, Jones)
Response 1-25:
Tuxedo Reserve met with the Tuxedo Joint Fire Commissioners on
February 1, 2010. At this meeting it was confirmed that no changes
have been proposed to the Project since Tuxedo Reserve last met with
the Commissioners in December 2008 and to discuss the capital and
operating budget considerations for the Project since the
Commissioners’ last review. A second meeting with the Joint Fire
Commissioners was held on March 1, 2010, to finalize these
considerations. A letter signed by the Applicant and the Chairman of the
Joint Fire Commission, which summarizes the conclusions of these
meetings, is contained in Appendix J of this FSEIS.
Comment 1-26:
Tuxedo Reserve was proposing that the maximum building height of
multi-family buildings in the commons be measured at 52 feet from the
base of the building to the midpoint of the eave and ridge of the roof.
The issue we discussed was whether firefighters would be able to gain
access to the roofs of such buildings to execute venting operations.
Venting operations are critical to the overall fire suppression strategy.
We determined that given the distance of the road to the structures, the
proposed height of the buildings and the maximum height of the one
ladder on our extendable ladder truck, we simply would not be able to
reach the roofs with our equipment. We did the trigonometry at the
meeting and it was apparent to the representative from Tuxedo Reserve,
the fire commissioners and the fire chiefs, that revisions to their height
June 21, 2010
3.1-14
DRAFT
proposals were necessary. We are still waiting to hear back from
Tuxedo Reserve on this very critical issue. (Hempel, Jones)
Response 1-26:
The Applicant has rescinded its proposal to modify the maximum
building height of buildings within the Commons and, in addition,
included the Town Zoning Code’s definition of building height within
the proposed Smart Code to clarify how the height of buildings in
Tuxedo Reserve would be measured. This was confirmed to the Tuxedo
Joint Fire Commissioners on February 1, 2010. Please refer to
Appendix J of this FSEIS. As a finding of this FSEIS, the Applicant will
be required to submit to the Fire District any site and/or subdivision
plans for the construction of the multifamily buildings in the Commons
for review. The Fire District wants to ensure that the multifamily
buildings can be serviced for fire protection via their trigonometry
calculations.
Comment 1-27:
We understand Tuxedo Reserve may have had further changes to their
proposed plans since they last met with us in December, 2008. Any
such changes will need to be viewed and agreed with the board of fire
commissioners. Our understanding was that Tuxedo Reserve had
requested to attend our meeting on August 6, 2009, and we were
anticipating meeting with representative at that time. However, no one
from Tuxedo Reserve appeared at that meeting as planned, nor have we
heard from them as to why they did not appear. Moreover, we have not
received any requests from them to reschedule a meeting, to consider
the above referenced open matter, and any other proposed changes that
they may be considering. (Hempel, Jones)
Response 1-27:
Tuxedo Reserve met with the Tuxedo Joint Fire Commissioners on
February 1, 2010. At this meeting it was confirmed that that no changes
have been proposed to the Project since Tuxedo Reserve last met with
the Commissioners in December 2008 and to discuss the capital and
operating budget considerations for the Project since the
Commissioners’ last review. A second meeting was held with the
Tuxedo Joint Fire Commissioners on March 1, 2010, to finalize these
considerations. Please refer to Appendix J of this FSEIS for a signed
letter between the Applicant and the Fire Commissioners.
Comment 1-28:
I submitted a letter on July 1, 2009, with an update, as requested by
Andrew Dance, on the information regarding the Tuxedo Park Library
needs with respect to the development as proposed in 2003. The letter
underscored four major points; one, our funding methodology has
changed. We now need voter approval of any budget increase. This
essentially guarantees that no increase to support building, staffing, cost
and materials, or other operating expense will be approved to support a
facility in Tuxedo Reserve, until the population there approaches or
equals that of the existing town. (B. Dupont)
Response 1-28:
Tuxedo Reserve will provide the Tuxedo Park Library with a 0.5-acre
parcel within the Commons for the construction of a new branch as
required by the Special Permit. In response to Ms. Dupont’s letter,
DRAFT
3.1-15
June 21, 2010
Tuxedo Reserve has indicated that it would consider the option to
construct a 5,000-square-foot space for either lease or sale to the library
as part of its larger recreation facility in lieu of gifting 0.5 acres of land.
However, Tuxedo Reserve cannot commit to such a requirement at this
time. The fact that voter approval is required for funding does not
guarantee that there will be no increase in funding for the Library.
Rather, the voters will approve what they desire to pay for the Library’s
services. Tuxedo Reserve does not propose to make payments to the
Library to offset revenues that the voters of the Town fail to approve.
Comment 1-29:
Use of the library, already at capacity, is growing at record rates, putting
a severe strain on the existing facility, which cannot be expanded. (B.
Dupont)
Response 1-29:
Comment noted.
Comment 1-30:
The 2004 Special Permit provided for one-half acre of land for a new
facility to be built, not to be built I should say, by Tuxedo Reserve, to
service the projected population of Tuxedo Reserve. However, we
would require three acres and a ten thousand square foot facility to
serve that population. (B. Dupont)
Response 1-30:
See Response 1-27.
Comment 1-31:
Although we had several discussions with Tuxedo Reserve, specifically
with Andrew Dance, in recent years, about the developer building a five
thousand square foot library in the town center, we have never gotten a
commitment in writing. Also that is absent from the current Special
Permit amendment. The amendment does say that the applicant, quote,
"May, at its option, construct a library, in the Commons area." But they
also may not. So it really doesn't give us anything. In his comments at
the last meeting, and in his letter of October 29th through the town
clerk, Dan Gladding, trustee, noted the twelve year kick out clause that
was in the original permit. This has also been discussed with Mr. Dance
several times and he agreed that the timing would have to be extended,
but no change was made in the current amendments. (B. Dupont)
Response 1-31:
See Response 1-28.
Comment 1-32:
I would like to make one additional point; when we were asked to
address all the changes to the library's needs since the 2004 permit was
approved, it is important that the public and the town board be aware
that the provisions in the 2004 permit for one-half acre of land, was
repeatedly and emphatically opposed by the library director and trustees
as totally inadequate and would result in either an enormous, unfair
burden on the taxpayers of Tuxedo, or no additional capacity to serve
the needs of the public. This one-half acre was not something we ever
agreed to, nor would we ever in good conscience recommend for the
people of Tuxedo. It was put on the table as a take it or leave it, all we
are willing to do, provision, with no regard to our council or the real
June 21, 2010
3.1-16
DRAFT
needs of this community. On behalf of the library, trustees and the staff,
and the people of Tuxedo, I would hope that this board will not accept
any plan for development that does not provide -- meaning build,
furnish, stock, and staff -- a new facility that realistically satisfies the
needs for the increase in library services that this development will
create. (B. Dupont)
Response 1-32:
See Response 1-28.
Comment 1-33:
It is disturbing that the Developer does not seem to have provided the
Board the courtesy of submitting a document reasonably responsive to
the limited information requested. At the very least, the Developer
should also be required to submit a document or supplemental
information more responsive to many of the financial, environmental,
safety and other questions raised by Town residents and others before
the public hearing process is complete and closed to further public
comment. For example, we think the public should be entitled to see
and comment on a meaningful explanation of the costs of upgrading our
fire and public safety equipment rather than noting the absence of such
a discussion, and to see and comment on a discussion of the tax
neutrality of the Project using reasonable, more current market
information. (Gluck)
Response 1-33:
The fiscal analysis has been updated as part of this FSEIS. Please refer
to Chapter 3.3, “Comments and Responses – Economic and Fiscal
Analysis.”
➭
DRAFT
3.1-17
June 21, 2010
Chapter 3.2:
Comments and Responses
Land Use, Zoning, and Public Policy
A. CHAPTER 2: LAND USE, ZONING, AND PUBLIC POLICY
SMART CODE
Comment 2-1:
Also the proposed amendments to the Special Permit of 2004 make me
wonder, what is your vision of Tuxedo? To be congested like Monroe or
Mahwah? Why would the board entertain the idea to change the
proposed codes? How would the Smart Code be smart for Tuxedo, not
just for the developers? Weren't we promised a workshop on how the
Smart Code works? How can approvals be given for something we don't
fully understand. (Devore)
Related offered to hold a workshop on Smart Code so that we can
understand the change from the current Town-zoning code. This
workshop has not yet happened. (Hanson)
I think it's very important that we do have the workshop that Related
offered to do for us on the Smart Code, so that we can understand the
changes that are being proposed. I have a degree in urban planning. I
have made a serious attempt to compare the Smart Code, and I
understand conceptually that it's trying to smooth the process, and not
have the development bogged down in little details before a board of
architectural review, but I made a serious attempt to understand what
changes have occurred. Larry Darby gave you a more technical sense;
this change, that change, this change, that change, what's in what's out.
It was drafted by the Related Company, so I think that it's really
important that we get their perspective, that we have an opportunity to
learn what the code is intended to do, so we get a comparison of the
code versus the Special Permit, before the public hearing is closed,
because we're being asked as the public to comment on this and I don't
think we have sufficient information yet to really understand what the
practical implication of this change is. I understand the advantages to
Related, it smoothes their process. It makes a much more flexible
situation. But I think the public and the board really need to understand,
what are we giving away, what changes have occurred, and the overall
implication. (Hanson 11/23/09)
Not a lot has been said about the Smart Code. I think partly because it is
very complicated. On rereading it, I am concerned. In earlier
submissions there was a lot of references to Robert A. M. Stern, and
there was a lot of references to certain housing types being picked by
him or judged by him. Now the guidelines are just that, suggested; there
DRAFT
3.2-1
June 21, 2010
is no -- apparently anything can be built; but there are suggestions,
guidelines, there are suggestions as to landscaping, but there is nothing
with any teeth in it, and that's a matter of concern. The Architectural
Review Board has been sidelined, as has the Zoning Board, and I think
you should take a hard look at what, in fact, you are going to be
allowing with that particular part of this amendment. Andrew Dance
sometime ago offered to give a workshop on the Smart Code, which I
hope you will, because I think for your sake, and for the sake of maybe
people in the town, who have trouble understanding this Smart Code, to
have a workshop where you present it and there are people,
knowledgeable people about real estate in the audience, who can ask
intelligent questions and from those questions we can all learn and
understand exactly what it does and doesn't do. Thank you very much.
(Hays)
When will the workshop Related offered be held for the necessary full
disclosure and understanding of the proposed SmartCode? (Steele
11/20/09)
Response 2-1:
The Smart Code does not change the Town’s Zoning Law. Consistent
with the applicable Planned Integrated Development regulations
contained in the Town Zoning Law, the Smart Code is a “performance
criteria” document requiring implementation of certain architectural and
construction-related design standards that ensure the Planned Integrated
Development proposed is what actually is built. The Smart Code is an
appendix to and part of the Special Permit.
A workshop on the proposed Smart Code was held on January 11, 2010.
The Town Board originally scheduled the Smart Code workshop on
December 7, 2009, but rescheduled it due to a conflict with a scheduled
meeting of the Village of Tuxedo Park Planning Board. The Town
Board rescheduled at a time that would avoid the December holidays as
well as regularly scheduled Town meetings. Accordingly, January 11,
2010, was the earliest date that the Town Board determined the
workshop could be scheduled.
At the January 11, 2010 workshop, attendees were provided with an
overview of the Tuxedo Reserve Smart Code. Many in attendance had
questions and all questions were answered by the Applicant and its
consultants. The Smart Code is a technical document which establishes
very detailed planning standards for the different neighborhoods that are
proposed within Tuxedo Reserve. The Smart Code includes the
planning standards from the 2004 Design Guidelines and expands on
them to provide more specificity about how the various neighborhoods
will ultimately look. In every instance, the Tuxedo Reserve Smart Code
includes neighborhood design standards that promote the original vision
for Tuxedo Reserve approved by the Town Board in 2004.
In addition to the Smart Code, the Applicant has proposed refinements
to the Architecture and Landscape Guidelines approved in 2004. The
2004 Architecture Guidelines prepared by Robert A.M. Stern Architects
(“RAMSA”) identified six architectural styles that were appropriate for
the Project; however, the 2004 guidelines provided very little in the way
June 21, 2010
3.2-2
DRAFT
Chapter 3.2: Comments and Responses – Land Use, Zoning, and Public Policy
of describing specific architectural elements or materials that should be
employed or avoided. In the proposed modifications to the Design
Guidelines, RAMSA coordinated with associate architect Donald
Powers Architects to further refine the specifics of the approved
architectural styles as well as to add two additional styles that they
deemed were both appropriate for the area and positive additions to
ensure variety.
At no point during the course of the Project was it represented that
RAMSA, or Robert Stern himself, would “pick” or “judge” the final
designs of houses. The Special Permit requires that the Tuxedo
Architectural Review Board approve the designs of each house to
confirm their conformity to the Design Guidelines. The Smart Code
does not alter those requirements. The commenter is not correct in
stating that the Smart Code has sidelined the Architectural Review
Board. The Smart Code does not affect the jurisdiction of the
Architectural Review Board over the Project. To the extent that the
comment refers to sidelining the Zoning Board of Appeals, please refer
to Response 2-10.
Comment 2-2:
In their web site, quote, "Related’s use of the Smart Code as a means to
secure flexibility in addressing future real estate market demands." So
how does that protect our environment? How are the standards of
opportunity upheld? How are the interests of the town and developer
protected in the Smart Code? And I also have questions about the
workshop. (Steele)
The increase in commercial square feet from 3,000 to 30,000 square
feet, increasing multi-family housing by 40 percent, and new zoning to
supersede the Town is basically being asked to subsidize the sale of the
property to another developer. (Wilson)
Response 2-2:
DRAFT
To the extent this comment addresses the Smart Code, the proposed
Smart Code would not supersede the Town’s Zoning Code. The transect
system that is the cornerstone of the Smart Code is a term that has been
borrowed from ecology. Applied in a planning sense, the Smart Code
for Tuxedo Reserve defines a series of zones in which neighborhoods
transition from undeveloped open space through the more densely
developed Commons. The Smart Code has integrated the same
standards set forth in Appendix C of the Findings Statement that
regulate the bulk requirements for the uses in the Tuxedo Reserve PID.
The Smart Code goes further by linking these bulk standards with
neighborhood-related design standards (e.g., roads, landscaping,
lighting, civic spaces, etc). By codifying detailed standards governing
the critical aspects of the development that determine community
character, the Smart Code protects the Town by assuring that the vision
for the Project approved by the Town Board is actually implemented
and protects the developer by providing predictability and greater
certainty about what can and cannot be built. In this manner, the Smart
Code does not “subsidize” a sale to another developer but in fact
ensures the continuity of the obligation to build according to established
3.2-3
June 21, 2010
guidelines and quality controls on future developers. The change in
commercial square footage has been proposed to provide the minimal
amount of retail space needed to make the Commons a viable
community center for the Project. The increase in multi-family units
arises almost entirely because market studies (see Appendix B of the
DSEIS) revealed that the active adult housing component would be far
more likely to be successful if it is in substantial part comprised of
multi-family units in the Commons in lieu of a separate area of singlefamily homes removed from the Commons.
Comment 2-3:
The zoning laws are created to protect and preserve the community and
the environment. With global warming and eventual climate change on
the horizon, Tuxedo should be enforcing stricter zoning codes. Further
up the road in Warwick, there are communities that have been built with
very strong zoning regulations. They are very nice developments and
have added to the community greatly. I’m sure Tuxedo could end up
with something like that. (David)
What Tuxedo Reserve is proposing is to override our existing Town
Code. The Reserve basically wants their own rules and standards and
this would apply to any developer who would buy this property. Tuxedo
must have its own zoning; this is our Town, and our architecture, zoning
and landscaping cannot be at the whim of this developer, or any
developer they sell to. (Caverre)
We have to know exactly how the Town is going to control the quality
of the building and landscaping of this developer. I am very concerned
that the developer wants the Smart Code and they plan to sell parcels or
perhaps all of it, how are we going to control this development.
Page 5 of the Technical Memorandum refers to Smart Code, which is a
misnomer, as smart growth entails development around public
transportation hubs. This Project would promote sprawl into territory
with topographical challenges making it especially vulnerable to loss of
wildlife, pollution of ground water, flooding, and traffic, to say nothing
of financial complications. Use of the word "smart" is a smoke screen
when used in conjunction with building in the mountains. Look at the
projects on Sterling Mine Road, look at Pomona, and look at Stony
Point. Smart is not the first word that comes to mind. (Wooters)
Why should we current-citizens of Tuxedo be risking the experiment of
applying a prototype "Smart Code’ for the first time to a huge scale
development in extremely difficult terrain? Where is the evidence that
"Smart Code" works at all, much less side-by-side with a Municipal
Code in a 1200-unit cluster? (Regna)
Response 2-3:
June 21, 2010
The proposed Smart Code would not override the Town’s Zoning Code.
Rather, it is consistent with the Planned Integrated Development zoning
regulations, which require the use of performance criteria and design
standards to implement the land use policy vision of a Planned
Integrated Development. It ensures that Tuxedo Reserve is developed
according to the specific standards that will have been approved by the
Town Board. As stated above, the Smart Code would integrate relevant
3.2-4
DRAFT
technical standards already approved and incorporated in the 2004
special use permit (including those regulating lot area, yard
requirements, height limitations, streets, access, and building area) to
guarantee that what has been represented by the Applicant and what will
ultimately be approved by the Town Board is actually constructed. As
confirmed during the Smart Code workshop, smart codes have been
implemented in multiple municipalities in a variety of states and govern
all types of development from protection of open space to regulating
city centers. The Smart Code is a workable technical approach that
regulates future permitted development with far greater specificity than
is normally applicable in traditional zoning and subdivision regulatory
systems. For additional information on The Smart Code, please see
Responses 2-1 and 2-2.
Comment 2-4:
Community character is important and in 2004 when we determined
how big a house could be fit on a lot, we asked our consultant to do a
three dimensional video to show us different proposals that the
applicant had in front of us. That resulted in very specific bulk standards
being developed so that we did not have yet one more development that
looked like big huge house on little tiny postage stamps. So, if that has
not been done I would highly recommend that be done before you make
any changes to the Special Permit, so that you can see what this is going
to look like. (McCathern)
Response 2-4:
The commenter is referring to the bulk and massing analysis prepared
by Anton Nelessen Associates (“ANA”) (Appendix K of the 2003
FEIS). Three-dimensional illustrations of various streets in the proposed
PID were modeled to assess the visual impact of proposed maximum
floor area ratio (FAR) standards in various neighborhood settings. The
FAR standards contained in Appendix D of the Findings Statement
reflect the FAR standards approved by the Town Board for Tuxedo
Reserve, based on review of the ANA analysis. The same FAR
standards have been incorporated into the proposed guidelines—see
Table 7 of the draft March 2009 Smart Code.
Comment 2-5:
In 2004, both our local code and part of the special permit is that all of
this development would be reviewed, and subject to approval by an
Architectural Review Board (ARB). I think this board has not been
favorable to the ARB and I find that very disturbing. I would like not
like to see the ARB weakened in respect to Tuxedo Reserve, or any
other development in this Town. (McCarthen)
Response 2-5:
The Smart Code and Design Guidelines would not weaken the Town’s
ARB. Rather, the ARB would utilize the Smart Code and Design
Guidelines to review the various phases of Tuxedo Reserve to ensure
the Project is being developed as envisioned by the Town. This
application does not propose altering the jurisdiction of the ARB.
Comment 2-6:
Where has it been proven Smart Code Zoning is suitable for controlling
Wilderness lands? (Kwasnicki 9/14/09)
DRAFT
3.2-5
June 21, 2010
Response 2-6:
Many municipalities have adopted a “Smart Code” that is tailored to
regulate the various land use areas of a community. “Wilderness” or
open space areas would be regulated in accordance with standards for
the T1 transect zones. The Smart Code does not relax protections of
those lands that are to be designated as open space in the Project
Approvals and would be modified by the Proposed Modifications.
Comment 2-7:
I was struck by the very substantial changes from the prior August,
2008 draft of the Smart Code being proposed, to the foundation section,
titled Article One, authority. These changes are being proposed at a late
stage in the permitting process, and that by itself suggests to me, that
they be given special attention, so that the import is clearly understood.
I would urge you to instruct the town attorney to provide the council
and the public with a written explanation of the changes and the reasons
why they are being proposed…Under section one, authority, in the new
draft code, the Smart Code is no longer expressly designated as being
adopted pursuant to the PID regulations; only the Special Permit. Why
is that? Is there a concern that the Smart Code reflects a substantial
departure from the PID regulations, that it is no longer appropriate to
refer to them? Section one has also been revised to delete the statement
that the site development performance standards are part of the Smart
Code. Why was that changed? Similarly the architectural landscape
guidelines are no longer stated to be part of the Smart Code. Why was
that change made? If the original idea of the Smart Code was to provide
integrated provisions governing a development, why have these
provisions been separated from the Smart Code, and are they somehow
floating in the air as part of the Special Permit? (Darby)
Response 2-7:
The Planning Board determined that it was redundant and unnecessary
to repeat language, e.g., various authorities that will be made part of the
Special Use Permit. Rather, the Smart Code should be limited, to the
maximum extent, to the specific standards which will govern the
Tuxedo Reserve development. The Design Guidelines and the
Performance Standards are separate stand alone documents—they are
not part of the Smart Code. Thus, references to these documents were
deleted. However, the Design Guidelines and Performance Standards
are integral to the Special Permit and will be incorporated therein. The
August 2008 draft of the Smart Code represents a draft version of the
proposed Smart Code that was submitted for Town Board review. In
September 2008, the Town Board referred the Tuxedo Reserve
application documents, including a draft of the Smart Code, to the
Planning Board for review and comment. The Planning Board
conducted a seven-month review that included meetings and special
workshops (all open to the public), as well as reviewing two
resubmissions by Tuxedo Reserve. On March 13, 2009, the Planning
Board submitted a unanimous favorable referral letter to the Town
Board supporting the final submission by Tuxedo Reserve subject to
conditions and a Schedule A that identified areas of review that the
Planning Board deferred to the Town Board. Therefore, the
June 21, 2010
3.2-6
DRAFT
modifications to the Smart Code were in response to issues raised by the
Planning Board and its consultants during that seven-month period.
There is no departure from the PID Law applicable to the Project. The
PID Law contemplates that the detailed standards governing the
Project’s design will be set forth in the Special Permit. Accordingly, the
Smart Code is appended to and part of the Special Permit. (Also see
Response 2-1.) The final organization of Tuxedo Reserve’s planning,
design, and engineering documents was determined by the Planning
Board and its consultants. Per the Town’s PID Law, the Smart Code,
Design Guidelines, and Performance Standards are appendices to and
part of the Special Permit.
Comment 2-8:
In the section on interpretation, the prior draft included a specific
statement of the hierarchy of interpretation. Now, among other changes,
the previous statement that the Smart Code shall not authorize any use
not permitted under the zoning law has been dropped. Why was that
change made? The statement that the procedures of the zoning law
remain applicable to Tuxedo Reserve has also been dropped. Why was
that change made? The statement that all procedural requirements in the
subdivision law remain applicable to Tuxedo Reserve has been dropped
as well. Why was that change made? And the statement that in the event
of a conflict between the Smart Code and a Special Permit, the Special
Permit shall govern; that's been dropped. Why was that change made?
What is the legal effect? Parenthetically, it does not seem to me that it is
truly a satisfactory answer to say that the Smart Code is part of the
Special Permit so that by definition there can be no conflict. The
statement that the dimensions of Article 4 Standards and Tables are
legally binding has been dropped. Why was that change made and what
is the legal effect? (Darby)
Response 2-8:
The statement that the Smart Code shall not authorize any use not
permitted under the zoning law was dropped because it was
unnecessary. The Smart Code does not regulate permitted uses for the
Project. They are regulated by the applicable zoning and the Special
Permit. The statement that the procedures of the zoning law and
subdivision law remain applicable to Tuxedo Reserve was dropped for
the same reason. The Smart Code would be an appendix to and part of
the Special Permit and does not purport to affect the procedures in the
Town’s Zoning Law or Subdivision Law. And the statement that in the
event of a conflict between the Smart Code and a Special Permit, the
Special Permit shall govern; has been dropped for the reason alluded to
by the commenter. The Smart Code is appended to and made a part of
the Special Permit and accordingly it cannot be in conflict with itself.
The statement that the dimensions of Article 4 Standards and Tables are
legally bindings was dropped because it is unnecessary. All of the
provisions of the Smart Code are binding as part of the Special Permit
governing the Project.
DRAFT
3.2-7
June 21, 2010
Comment 2-9:
The former Section 1.3 on "Intent" set forth important "policies" of the
Smart Code, such as the policy that Tuxedo Reserve shall be designed
and built in accordance with the provisions and standards set forth in the
Preliminary Plan and the Special Permit. The entire section on Intent
including the statement of this policy been eliminated in its entirety.
Why was that change made? This would seem to raise a concern that the
"integrated approach" of all the standards, guidelines and other
specifications for the Project is being weakened or perhaps even
abandoned. (Darby)
Response 2-9:
The language in the Special Permit itself mandates that the Project be
built in accordance with the Special Permit and Preliminary Plan. The
Smart Code need not repeat what is already addressed in the Project
Approvals.
Comment 2-10:
In new Section 1.3 relating to the issuance of Waivers, language has
been added to permit the issuance of a waiver when "engineering or
design considerations" make such a waiver "necessary or desirable"
provided it is consistent with the Preliminary Plan and the Special
Permit. This would seem to be a potentially very broad provision and
might be thought to give the Planning Board virtually unlimited
authority to issue waivers as almost any engineering or design change
might be thought "desirable". An explanation should be provided why
this is not so (if it is not) and some examples of permissible and
impermissible waivers should be given. Consideration should be given
to limiting the broad scope of this provision so that it does not undercut
the force of the standards, guidelines and specifications provided. Also,
to aid general understanding, could the applicant and the Town Attorney
please provide a written explanation comparing when and to what
extent, if any, existing legal New York State law and Town zoning law
provisions governing when and under what circumstances a "use
variance" or "area variance" can be granted would remain applicable to
the issuance of a waiver of a Smart Code requirement if the change
sought is made. (Darby)
Response 2-10:
The waiver provision provides appropriate flexibility, but is not unduly
broad. No waiver can be granted that would be inconsistent with either
the Preliminary Plan or Special Permit, thus assuring that no waiver can
be granted which would fundamentally alter the approved Project in any
way or allow a change that would be inconsistent with what the Town
Board approved. Thus, the Planning Board would not have authority to
make any change it deemed “desirable.” Typical waivers would involve
minor changes to specific Smart Code technical standards that would be
required because of terrain, unusual engineering considerations, or
similar unusual site specific circumstances. The waiver provision could
not be used to grant a “use variance” because changes in the use would
not be consistent with the Special Permit or Preliminary Plan.
Moreover, changes in permitted uses would require an amendment to
the Special Permit, as opposed to a use variance. The details of the
waiver provisions are being developed by the Applicant in consultation
June 21, 2010
3.2-8
DRAFT
with the Town Board and its consultants. The waiver provisions will be
included in the Special Permit and incorporated into the Smart Code.
The modification and waiver provisions in the Smart Code are intended
to authorize the Planning Board to address technical problems, site
conditions, and similar matters during subdivision and/or site plan
review or during construction. Once a lot has been improved according
to an approved subdivision plat or site plan and a building permit, then
any future modifications or waivers to the Smart Code would require
issuance of an area variance by the Town’s Zoning Board of Appeals,
pursuant to the Town’s Zoning Law and applicable state laws.
Language will be inserted into the Special Permit to explicitly confirm
the respective jurisdiction of the Planning Board and the Zoning Board
of Appeals to grant waivers and modifications to the Smart Code.
Comment 2-11:
Incorporation of a "Smart Code" into the conditions of the special
permit for Tuxedo Reserve would turn the planning and zoning process
on its head—giving the developer a special permit to seek Project
related approvals incrementally from the Planning Board rather than a
right to build in compliance with the permit and within a rational
timeframe. While such an approach may ostensibly appease some by
adding layers of administrative review to the Project, the Smart Code is
neither permissible under Town Law nor desirable from the perspective
of the Town's need to retain authority to plan for its future growth and
development. (Sterthous)
Response 2-11:
Incorporation of the Smart Code into the Special Permit is consistent
with the planning and zoning process applicable to the Project pursuant
to the relevant PID Law. The PID Law contemplates that the detailed
design and planning standards for the Project will be set forth in the
Special Permit. By incorporating the Smart Code into the Special
Permit, the process contemplated by the PID Law is followed. The PID
Law and the Special Permit contemplate multiple subdivisions and site
plan approvals for various portions of the Project. The Smart Code does
not alter that sequence, which is typical of large scale planned
communities. However, all such subdivision and site plan approvals
must be issued in conformity with the Special Permit, including the
Smart Code and timing will be determined, in substantial part, by
prevailing market conditions. The Smart Code implements the Town
Board’s approved vision for the Project and, as such, appropriately
governs the Project. By having approved the Project, the Town Board
has determined that it is appropriate for the Town and its future growth
and development. Nothing about the Smart Code alters those
determinations by the Town Board or affects powers of the Town Board
that may be exercised in the future. To some, use of the terms Smart
“Code” and transect “zones” suggest that the Town Board is approving
a separate zoning code for this development. This is not the case. The
Smart Code is a template for integrating the bulk standards established
under the Special Use Permit with neighborhood-specific (i.e., transect
zone) design standards.
DRAFT
3.2-9
June 21, 2010
Comment 2-12:
Upon reviewing the “Tuxedo Reserve: Design Guidelines, Architectural
Design Guidelines, Landscape Design Guidelines December 9, 2008,
The Related Companies L.P.” I focused on the Landscape Design
Guidelines and have the following observations and questions:
• The document uses terms such as "encouraged" "discouraged" with
respect to desirable and undesirable practices. What is to prevent
the developer and the subsequent owners just ignoring the
encouragements and discouragements?
• The list of plants except for the spring plantings is an extensive
listing of native plants many of them niche plants that are hard to
purchase, difficult to establish and expensive. How realistic is it to
expect the developer and subsequent owners to pursue and complete
such purchases? Can we realistically expect the plants to be
maintained until established? Where will the quantity of plants be
purchased? I know of only three native nurseries nearby, one
outside of New Paltz, another in Pennsylvania and the other in
southern New Jersey. Not very convenient for a large scale
development or individual owners.
• How will deer be prevented from eating the plantings until
established?
• Most progressive developments that care about the local ecology
demand that a certain number of trees be replanted for a specific
area of disturbance. Will Related provide a minimum number of
trees?
• Reference is made to soil being restored or brought in. Won't the
Project be subject to the same soil runoff that Central Park
experience when it was created and topsoil ran off the bedrock into
the streets of New York every time it rained? How will soil be held
in place? Who will be responsible for restoring?
• On page 62 there are Sample Landscape Calculations which seem to
be addressing stormwater runoff by establishing a ratio of
impervious surfaces to pervious surfaces. A sample ratio was
calculated without references to annual expected rainfall and
location of the impervious surface in relation to pervious surfaces.
Will a ratio based on actual rainfall be calculated and used? Will the
relationship of impervious surface location to pervious surfaces be
dictated so as to effectively control stormwater runoff? (Steele
12/18/09)
Response 2-12:
To the extent that the Project has design, architectural, and landscape
guidelines, it will be the function of the Town’s boards and officials to
determine if the guidelines are being followed. As per the Special
Permit, the Architecture Review Board (ARB) will review each site
plan and subdivision application for conformance with the Landscape
Design Guidelines. The Planning Board will not issue final site plan or
subdivision approval, and the Building Inspector will not issue a
building permit, until the ARB has provided written verification of
compliance with the Guidelines. With regards to the terms
“encouraged” and “discouraged,” these are used to assist the ARB in
assessing the appropriateness of a proposed landscape plan. Compliance
with the Guidelines and the Special Permit will be a requirement for all
developers and subsequent homeowners.
June 21, 2010
3.2-10
DRAFT
An extensive list of native plant species is included in the Landscape
Design Guidelines to maintain healthy plant biodiversity, increase
available wildlife habitat, allow for a interesting variety of forms,
texture, and bloom times, and to respond to a variety of solar aspects,
shading, drainage, and soil moisture conditions. A number of these
plantings are resistant to deer browsing. The HOA will be required to
maintain the plantings in the common areas. In addition, the HOA will
be responsible for providing individual homeowners with strategies for
success for the long term maintenance of plantings, as well as sources
for planting materials. As per the Landscape Design Guidelines, plant
species should be chosen based on their ability to be established on a
site. With regards to the availability of native plant species for sale,
native species are increasingly being required by municipalities and
agencies, and are generally available in the nursery trade.
With regards to the required number of trees, this is established based
on the type of lot. Please refer to pages 59 through 61 of the Landscape
Design Guidelines. In addition, NYSDEC will require a certain number
of trees to achieve stormwater standards in addition to the on-lot tree
requirements.
The Landscape Design Guidelines encourage the use of on-site soils for
plantings. In addition, the use of site appropriate native species will help
to stabilize the soils. Furthermore, as discussed in Chapter 6,
“Hydrology and Stormwater Management,” of the DSEIS, the Project
requires a Stormwater Pollution Prevention Plan to control soils from
migrating off-site during storm events.
As discussed on page 62 of the Landscape Design Guidelines, the
landscape calculations are provided as a reference to assist in the
implementation of the landscape guidelines. Please refer to Chapter 6 of
the DSEIS for information on the stormwater management plan.
Comment 2-13:
Hall Alminana, Tuxedo Reserve's consultant, who developed the Smart
Code says in their website: "Related sponsored the use of the Smart
Code as a means to secure flexibility in addressing future real estate
market demand” (www.hallalminana.com). Do we fully understand how
the SmartCode works? Where in this code is the environment protected,
or the standards of the town upheld? How are the interests of the Town,
not of the developer, protected? (Steele 11/20/09)
Response 2-13:
Please refer to Responses 2-1 and 2-3.
Comment 2-14:
The original permit promised an upscale development. Already the
developer is asking for multi family dwellings and a ten fold increase in
commercial space. What is to prevent a developer in the future from
putting in a trailer park or whatever is needed to address future real
estate demand? Certainly in this market, age restricted housing would
not be necessary, so does the Smart Code allow the elimination of age
restricted housing? What is the impact to our estimated tax revenues?
(Steele 11/20/09)
DRAFT
3.2-11
June 21, 2010
Response 2-14:
Please refer to Responses 2-1 and 2-3. The Proposed Modifications,
which include the Smart Code, provide more stringent requirements on
the development to further guarantee the quality of the Project as it is
built. The Special Permit identifies very specific uses which are
permitted within the development, and a trailer park is not a permitted
use. With regard to age-restricted housing, it is unclear what the
commenter’s source of information is regarding market demand. The
demand for active adult housing is primarily driven by the population
growth of residents over the age of 55 and the ability of those residents
to sell their current homes. Detailed market studies show that the
population growth of this segment is very favorable for active adult
housing, and the fact that the housing market has slowed down as part
of the overall economic environment generally indicates that there will
be a pent-up demand for active adult housing at the time of Tuxedo
Reserve’s build-out (when these residents can sell their current homes).
Comment 2-15:
Light pollution will be increased. With the Smart Code in the
developer's hands how will our night sky be protected? (Steele
11/20/09)
Response 2-15:
The Smart Code includes public illumination design and performance
standards (see Table 9 of the Smart Code) that vary in brightness and
that also vary in the character of the specific fixture according to the
Transect in which they are located. The selected lighting fixtures and
levels of brightness are all designated to be Dark Sky compatible to
minimize light pollution.
Comment 2-16:
It is my interpretation that the addition of the Smart Code provisions to
be appended to the Special Permit is actually the creation of zoning
regulation. As such, future interpretation of the zoning requirements, or
as Related prefers to call a Smart Code, must be embedded in Town
Code and all requests for area and use variances shall be determined by
the Zoning Board of Appeals and not, as the Smart Code requires, be
administered by the Planning Board. (Peverly)
Response 2-16:
Please refer to Responses 2-2, 2-3, 2-10, and the “Legal Arguments”
section of Appendix C.
Comment 2-17:
The Town Board and the Planning Board cannot, per State statute, act
as a board of appeals. To the extent new zoning requirements specific to
the Reserve are developed, the planning board lacks the jurisdiction to
address issues specific to the zoning interpretation. In order to invoke
the appellate jurisdiction of the ZBA, there must be a decision issued by
an enforcement officer. Thus, point two, adoption of the Smart Zoning
for Tuxedo Reserve stipulates the authority for interpretation shall
reside with the Planning Board. Its interpretation shall be binding upon
the Code Enforcement Officer. The Planning Board’s authority resides
in the adoption and approval of subdivision plats within the confines of
the Town’s comprehensive plan and laws. It shall not render a zoning or
June 21, 2010
3.2-12
DRAFT
code decision that relinquishes the authority of the Code Enforcement
Officer. (Peverly)
Response 2-17:
Please refer to Responses 2-1, 2-2, 2-3, 2-10, and the “Legal
Arguments” section of Appendix C.
Comment 2-18:
If one argues that the Smart Code is not zoning, but mandatory
guidelines to dictate the construction requirements of the community, in
essence, the aesthetic requirements, than the community is right to ask
what happens when the developer leaves. For the community and for
the future residents of the Reserve, the issuance of relief for reasons
unknown nor contemplated does not exist. Zoning and Codes reflect the
current norms and values of a community. But as the community
changes, those expectations change with it. That is most evident by the
process of re-zoning, redevelopment of comprehensive plans and the
granting of area and land use variances which do not negatively impact
the health, safety and welfare of the community. Indeed, even in my
community, which maintains guidelines more stringent than the
Town’s, we remain firmly rooted to the Town’s zoning of our
development and through the explicit process to petition for relief under
the rules and regulations of the covenants of the community. The Smart
Code provides no means for future relief unless one accepts the
authority this Code grants the Planning Board. (Peverly)
Response 2-18:
Comment 2-19:
In my opinion, the Smart Code appears to be a rather porous document,
and thus my fourth point. While the acceptance of exceptions in
regulations is normal, governing bodies tend to prefer more stringent
requirements that minimize misinterpretation, misapplication, and/or
future liability. The Tuxedo Reserve Smart Code makes generous use of
exceptions in its document. It is my opinion these exceptions must be
minimized to mitigate any future misinterpretation or legal liability for
the Town. Furthermore, to the extent relief will be required; they shall
follow the statutes stipulated by the State and Town which ensures the
general health, safety and welfare of the community. I do not believe,
with the years of work and research that has been employed to bring this
development this far, that this much uncertainty can exist in terms of
architectural standards, lot requirements, and general community
configuration. If so, there is a fatal flaw in the design and engineering of
the development proposal. (Peverly)
Response 2-19:
The Smart Code vests the Planning Board with the discretion to allow
individual waivers or modifications to the Smart Code so long as such
changes are consistent with the Special Permit and the Preliminary Plan.
Thus, neither the developer nor succeeding lot owners have the ability
to request anything via a waiver or modification of the Smart Code that
would be inconsistent with the overall and fundamental conception of
the Project as set forth in the Preliminary Plan and Special Permit. On a
project of this scale, flexibility must be built into the governing
regulations so that the Planning Board has the requisite ability to
DRAFT
3.2-13
June 21, 2010
respond to unique conditions and individualized problems, while still
assuring that the Project is implemented in accordance with the Special
Permit and Preliminary Plan.
Comment 2-20:
The granting of relief to zoning and codes is not a responsibility to be
borne lightly. The development of architectural standards, community
planning guidelines and municipal comprehensive plans are necessary
and essential. But they must be done within the rules and regulations of
the State’s Town and General Municipal Law and shall not be done in a
manner that circumvents existing due process, regulation and statute for
the comfort, ease, and financial benefit of any party. (Peverly)
Response 2-20:
Comment noted.
ZONING AND PID
Comment 2-21:
The Department has received the above referenced [zoning amendment]
Local Law has determined that the proposed action does not have the
potential to cause inter-municipal or County-wide impacts. (Church)
Response 2-21:
Comment noted.
Comment 2-22:
The September 2009 DSEIS and the November 2003 FEIS mentions the
applicants use of the Town of Tuxedo special use permit Planned
Integrated Development (PID) code for its Project. But where did the
PID come from? Who created the Town of Tuxedo special use permit
down-zoning code called Planned Integrated Development (PID) of
1976 with several amendments through 1998?
Where in all of the Tuxedo Town Board [by Resolutions] starting with
July 1991 as to the R-H Tuxedo Development, PID application of
September 1989 through the recent new TR DSEIS September 2009. Is
there evidence of where the PID Town Code came from or its source?
Town of Tuxedo Master Plan of 1972, page 11. Housing Densities in
part says: "the Master Plan recommends that the owner or developer of
property, at the time of an application, indicate plan relating to Town
Master Plan, Zoning and to other municipal, county and state
regulations through a procedure known as a Planned Unit Development
(PUD)". Page 20 in part says: "Planning Board recommendation of
PUD" Isn't the PUD special permit, the forerunner to PID? Where in all
of the TR DEIS- DSEIS-FSEIS-FEIS is the PID code history?
(Kwasnicki 10/26/09)
Response 2-22:
June 21, 2010
Although not the subject of the DSEIS, the Planned Integrated
Development (PID) was developed by the Town’s then Planning
Consultant and incorporated into the Town’s Zoning Law in 1975 by
the Town Board. The Town has amended the PID law several times, the
last time being 1998. A detailed history of the PID law and its
amendments is included in the 1999 DEIS.
3.2-14
DRAFT
Comment 2-23:
Isn’t the PID answer, that the Tuxedo Town Board should have
[rescinded] the PID special permit down zoning law back in 1991 (see
Tuxedo Town Board by Resolution to R-H Tuxedo Development L.P.,
July 10, 1991 as part of, R—H Tuxedo application of September 29,
1989) or before such date in that this kind of land-use development does
not conform to the Town Master Plan of 1972 or to the Game Preserve
(Open Space) lands of Tuxedo Park area Map of May 1887, and such
new or past TR DEIS, DSEIS, FEIS would be considered Sprawl
attacks on all natural setting and wildlife? (Kwasnicki 10/26/09)
Response 2-23:
The PID is part of the Town’s current zoning scheme and conforms
with the Town’s plans and land use policies.
Comment 2-24:
One, if the amendment to the permit issued to the Related Companies
are changes to the zoning law in disguise they are illegal and perhaps
unconstitutional, forecasting a long, drawn out, and expensive lawsuit.
(Hays/Alleman)
Response 2-24:
The Proposed Modifications do not include any changes to the
applicable Planned Integrated Development (PID) zoning law. Tuxedo
Reserve utilizes the provisions included in the existing zoning law that
regulates PID special use permits that has been part of the Town’s code
since 1975.
Comment 2-25:
Regarding the "Local Law Amending the Zoning Map of the Town of
Tuxedo”. Its to my understanding that these Town of Tuxedo, Zoning
Areas have been submitted by TR LANGAN Engineering, but gives no
indication of what type R-l, R-2, R-4 Zoning are in Exhibit A. Zoning
Area R-1, Exhibit B. Zoning Area R-2, Exhibit C. Zoning Area R-4.
Response 2-25:
Comment noted. The R-1, R-2, and R-4 zoning designations are
described in Chapter 2, “Land Use, Zoning, and Public Policy,” of the
DSEIS. Furthermore, these are all existing zoning designations defined
in the Town of Tuxedo Zoning Code.
Comment 2-26:
LANGAN Engineering Exhibit D. TR, Zoning Amendment Maps
shows TR Figure 2-3Proposed Modifications Zoning Map, with no date
indicated and with additional RO, LIO Zoning locations and the TR 36+
acres in the Village of Sloatsburg as zoned R-40 and MU-l without the
Zoning Areas indication of its land-use. Please note the 2007 Village of
Sloatsburg Chapter 54 Zoning Code prepared by Tim Miller Associates,
attachments. The Sloatsburg MU-l Residential/Neighborhood
Commercial Zoning also includes Farmers Market and Stand with
frontage on Rt. 17. Do the people of Sloatsburg know of such a TR
proposal for a Farmers Market at this site? (Kwasnicki 11/23/09)
Response 2-26:
Figure 2-3 is in the Tuxedo Reserve DSEIS (September 2009) accepted
by the Town Board as complete for purposes of commencing public
review. There are no additional RO and LIO areas proposed. The maps
were submitted as part of a zone petition and are not required to
DRAFT
3.2-15
June 21, 2010
illustrate land use. Land uses are shown in Figure 2-1 of the DSEIS. The
Special Permit Modifications and DSEIS have been transmitted to the
Village— an additional set of documents is available for review at the
Sloatsburg Library. The Village of Sloatsburg Board of Trustees
prepared and adopted the zoning chapter in 2007.
PUBLIC POLICY
Comment 2-27:
Does the Tuxedo Town/Planning Boards think that the DSEIS concept
plan and its Smart Code Zoning on open space lands meet these Master
Plan Goals and what are the DSEIS impacts on the Town of Ramapo
2004 Master Plan-Zoning Code or on the Sloatsburg 2007 Master PlanZoning Code? (Kwasnicki 10/26/09)
Response 2-27:
The proposed modifications were analyzed in the context of the Town
of Tuxedo’s Comprehensive Plan and presented in the Technical
Memorandum accepted by the Town Board in June 2009. The analysis
concluded that the proposed modifications were consistent with the
Town’s Comprehensive Plan. The Technical Memorandum and the
DSEIS do not analyze the proposed modifications against the Town of
Ramapo because the Proposed Modifications do not alter the
conclusions of the 2003 FEIS. The DSEIS notes that a market stand is
proposed in the Village of Sloatsburg (Table 2-3 of the DSEIS). It
would be located in the MU-1 zone (Figure 2-3 of the DSEIS). A farm
market stand is a permitted use in the MU-1 zoning district.
Comment 2-28:
Town of Tuxedo Master Plan of 1972 page 8. Nature Preserve states in
part: The plan recommends that approximately one-half of Tuxedo's
privately owned lands be maintained as a [natural preserve] in a
[wilderness classification]. The essence of the plan would require any
large [landowner], upon application for development to establish and
maintain areas of environmental importance as a [natural preserve].
Areas include: Topo exceed 20%, Wetlands /Swamp /Streams
/Riverbeds /Ridgelines/Waterbodies/Lakes.
DSEIS pages 2-1 through 2-8 Chapter 2, Land Use, Zoning and Public
Policy, where does it mention that the Town of Tuxedo has a Planned
Integrated (PI) District within a [Nature Preserve with Wilderness] like
the TR southern tract area of 1,200 open space acres? Isn't this Natural
Wildlife Land site constant with the Town of Tuxedo Master Plan of
1972 and not with the TR proposed [modifications] with added
rezoning, and at the same time proposing Smart Code Zoning over
Town home rule Zoning? (Kwasnicki 10/26/09)
Response 2-28:
June 21, 2010
The Tuxedo Reserve Planned Integrated Development specifically
effectuates the policy identified by the commenter. The 1972 Master
Plan recommended that “planned unit development controls” (“PUD”)
be enacted and characterized the zoning technique as “the most
significant and important development control.” A purpose of a PUD
(adopted by the Town Board as a “PID”) is to provide “substantial areas
of open space and recreational facilities at little or no cost to the Town.”
3.2-16
DRAFT
The Master Plan further states: “In order to maximize the
comprehensive and coordinated development of as large an area as
possible, the Planning Board recommends that…a minimum of 50
percent of a PUD be required to be set aside as a natural preserve...”
Tuxedo Reserve is 2,301 acres. Approximately 1,753 acres of the site
were set aside as open space as per the Special Permit, or 75 percent of
the project site. Approximately 42 percent of the entire site consists of
open space maintained on two large tracts—the Northern and Fox Hill
tracts. The Project Modifications would continue to set aside 76 percent
of the site as open space. The project is consistent with, and effectuates
the objectives of the 1972 Master Plan.
Comment 2-29:
Chapter 2 of the DSEIS also discounts the number of new 2009
pending Bills updating the Federal Clean Water Act, like U.S. Bill
S787, U.S. House Members of the Committee on Transportation and
Infrastructure, U.S. EPA Office of Enforcement Action Plan, EPA
Drinking Water and Ground Water Statistics and the NYS Committee
on Environmental Conservation Senate Bill 848. Bill passage will
safeguard Water, Wildlife, Sewers, and Wetlands to a higher level and
construction standards that could greatly limit the TR Project and could
affect Chapter 2 page 2-3 PID Law Grandfather in clause exceptions.
Response 2-29:
The passage of S.787, the Clean Water Restoration Act, is intended to
define “waters of the United States.” It would result in added protection
to streams, wetlands, and other water bodies which are no longer
federally regulated as a result of several lawsuits, including the Rapanos
and Northern Cook County cases. It is unclear what effect, if any, the
Act would have on existing ACOE jurisdictional determinations.
Regardless, the Applicant is required to adhere to all applicable federal,
State, and local laws in place at the time approvals and permits are
secured. Nothing in the passage of a federal act would affect the
grandfathering provisions of the PID law.
Comment 2-30:
So for all these reasons I think in the long run we should recognize that
this is a place that's highest and best use is to be kept as wild land.
(Horowitz)
Response 2-30:
The Town’s land use policy does not recommend that the property be
kept as forever wild. Notwithstanding, approximately 76 percent of the
property would be protected as open space.
Comment 2-31:
The proposed modifications to the Special Permit include an increase in
commercial square footage in The Commons area. The SEIS contains
the results of a market study stating that said increase will not adversely
affect business in the Hamlet. It is the goal of this Department to not
only deter competition with existing commercial uses in our Priority
Growth Areas, but to direct the possibility of any investment and
patronage to them. Although we recognize the need for a mixed-use
design in Tuxedo Reserve, we question why some of the untapped
DRAFT
3.2-17
June 21, 2010
potential for commercial activity cannot be more innovatively directed
to the Hamlet, with help from the sizeable contribution that the
applicant supplied to the Hamlet Revitalization Fund. We also question
why some of the commercial properties meant to be neighborhood scale
cannot in fact be located throughout the development, thereby
integrating uses even more and allowing the Tuxedo Hamlet to remain
the "town center." (Church)
Response 2-31:
The Proposed Modification to increase the commercial square footage
within Tuxedo Reserve from 3,500 square feet to 30,000 square feet fits
within the smart growth objectives of the Project to create a walkable,
pedestrian-oriented development such that basic conveniences of its
residents can be met without unnecessary car trips. The market study
mentioned above concluded that the 3,500 square feet of neighborhood
retail would not only limit the basic conveniences offered, but greatly
hinder the viability of that limited retail space. The inclusion of 30,000
square feet of neighborhood retail is considered the minimum amount of
space required to make the neighborhood retail commercially viable.
This same rationale is the premise for why the commercial uses within
Tuxedo Reserve are proposed to be centralized within the Commons
and not dispersed throughout the site.
Because the existing Hamlet retail is located one mile north of the
Project’s north entrance and because of existing parking capacity
constraints within the Hamlet’s retail center, the market study identified
that without the additional proposed retail, residents of Tuxedo Reserve
would likely travel to retail centers located in towns to the south of the
Project for convenience retail purchases, which would then cause the
Town of Tuxedo to lose those commercial tax revenues. Please refer to
the market studies contained in Appendix E.
LAND USE
Comment 2-32:
(Page 2-4, Potential Impacts) Paragraph 1 states: "The Proposed
Modifications would not substantially alter the residential land uses
approved in the 2004 Preliminary Plan." As stated above, the proposed
amendments violate the expressed caps and minimums in the Special
Permit quite significantly, converting 126 single family homes into
multifamily units. This increases the number of multifamily units by
41.3% above the cap set in the Special Permit. It would seem that this
should qualify as a "substantial" alteration of the residential land uses
approved in the 2004 plan. (Gross 12/31/09)
Response 2-32:
All of the land uses included as part of the Proposed Modifications were
previously considered and approved. While the number of multi-family
units would increase, this is not a new land use, nor is it inconsistent
with the land uses incorporated into the project. In addition, the increase
in multi-family units and reduction in single-family units is to enhance
in part the viability and marketability of the age restricted housing
which enhances the Project’s ability to generate tax revenues and
maintain its ability to be tax positive.
June 21, 2010
3.2-18
DRAFT
Comment 2-33:
The proposed development of Tuxedo Reserve is an anachronism, based
on a dated vision of the highest and best use of the land. (Horowitz
1/1/10)
Response 2-33:
The Tuxedo Reserve concept plan, approved by the Tuxedo Town
Board in 1991, would have allowed 1.1 million square feet of
nonresidential uses, and 2,450 dwelling units. As a result of the SEQRA
review process and PID amendments, the project was approved for a
total of 1,195 dwelling units and 199,000 square feet of office, light
industrial and commercial space (commercial space limited to 3,000
square feet) substantially less than proposed by the Applicant.
Comment 2-34:
The effort to stop the proposed 1195-unit development at Tuxedo
Reserve is the logical continuation of the effort to save Sterling Forest.
The existing landscape at Tuxedo Reserve is part of the same wild and
rugged forest land that has been saved at Sterling Forest. The same
animal and bird species that inhabit or utilize the Sterling Forest
ecosystem also inhabit or utilize the Tuxedo Reserve lands. With highend developments encroaching from various directions, it is imperative
that we preserve as much as we can as open space for future
generations. (Horowitz 1/1/10)
Response 2-34:
Comment noted. Nothing in the Special Permit limits the Applicant
from negotiating with agencies that may desire to purchase the property
for open space. However, to the Town Board’s knowledge, no such
negotiation has taken place. Approximately 76 percent of the project
site will be preserved as open space, with much of that acreage located
on the Northern and Fox Hill tracts which are contiguous to the PIPC
and other publicly owned open space lands.
Comment 2-35:
The Tuxedo Reserve property was once a hunting preserve for the
Lorillard family, having gradually reverted to wild forest land since the
end of the iron mining era. Perhaps because of its rugged and steep
character, it was not developed into housing during the second half of
the twentieth century. Previous development proposals did not get
realized (even after approval), and the economic climate for large-scale
housing was much better then than it is today. Now the time has come
to protect this land as open space. That is its highest and best use, and
would be the best outcome for area residents as well as for the region as
a whole. (Horowitz 1/1/10)
Response 2-35:
Comment noted. Please refer to similar comments and responses in
Appendix C.
Comment 2-36:
Community Character. The project modifications contain a significantly
different mix of residential and commercial uses, with the commercial
uses expanding greatly. The SDEIS contains no analysis of the effect of
these changes on the character of the local community. (Sterthous)
Response 2-36:
The Proposed Modifications would increase the amount of
neighborhood retail and commercial, recreational, and community
DRAFT
3.2-19
June 21, 2010
amenity uses to 103,000 square feet (larger retail, larger private
community club, larger welcome center, new neighborhood amenity
buildings, and library) from 70,000 square feet (private community
club, day care, business center, Active Adult recreation, pool club, and
welcome center). Included within the foregoing is an increase in the
amount of neighborhood commercial within the Commons to 30,000
square feet (deli, bank, café, restaurant, pick-up/drop-off dry cleaner,
boutique shop, and professional offices) from 3,000 square feet
(gourmet deli). The increase in neighborhood commercial would further
the Project goal of creating a walkable neighborhood center. In addition,
it would benefit the Town of Tuxedo through the provision of viable
retail tax ratables. Since the additional 27,000 square feet of
neighborhood commercial will primarily service residents of the project
site, it is not anticipated to result in any significant growth inducing
impacts. As discussed in the Retail Market Analysis (see Technical
Memorandum, Appendix A), Tuxedo Reserve Commons can support up
to 54,700 square feet of retail and restaurant development at 50 percent
residential build out—substantially more than what is proposed.
Comment 2-37:
I think that it would be in our best interest to preserve as much as
possible of Tuxedo and really let it remain this light in the midst of all
these mini-metropolis that are being built all around us. (Caverre)
Response 2-37:
As per the draft Town of Tuxedo Comprehensive Plan, approximately
22,000 acres, or 76.7 percent of the entire Town, is maintained as public
open space. Approximately 75 percent of the Tuxedo Reserve
development will remain as open space. Tuxedo already serves and will
continue to serve as a green “buffer” between the New York/New
Jersey metropolitan area and the Hudson River valley region to the
north.
Comment 2-38:
The Highlands are very important, and Tuxedo is very important to the
Highlands. We hope the Board will consider the importance of this
Town to the Highlands, the importance of this Town to the Village of
Tuxedo Park, and hopefully the importance of the Village of Tuxedo
Park to the Town. (Hays/Stevens)
Response 2-38:
Comment noted. See Response 2-39 regarding open space lands
preserved in the Town, an objective of the Highlands Act. The Village
of Tuxedo Park is an incorporated village within, and integral to, the
Town of Tuxedo.
Comment 2-39:
In August 2004, in my home state of New Jersey, as you may know,
land just over the state border was officially recognized as the important
water resource area it is, along with the historic/cultural resources and
wildlife habitat that must also be protected. It was with great interest
that I followed the course of events leading up to this significant
legislation. My disappointment that this wasn't happening throughout
the entire Highlands Region was soon replaced by joy when thenPresident George W. Bush signed the Highlands Conservation Act of
June 21, 2010
3.2-20
DRAFT
2004 on November 30th (please see http://www.na.fs.fed.us/highlands/
con act/index.shtm for more information). And while we may be on
opposite sides of a state boundary, the water and wildlife do not know
that this boundary exists. This proposed development really flies in the
face of the purpose of that Federal legislation, and those who
understand the importance of water conservation are appalled. While
navigating the Town of Tuxedo's website, I happened upon and read the
"Town History" section, which states the name comes from the LenniLenape Indian term for the largest lake, "Tucseto," which means "place
of the bear" or "clear flowing water." One of my lesser concerns is that
you will need to re-name your town because neither of those will be true
if this draft SEIS is approved. (Caren)
Response 2-39:
The Highlands Conservation Act PL 108-421 Section 6, “Private
Property Protection and Lack of Regulatory Effect,” provides that
nothing in this Act, “(1) requires a private property owner to permit
public access (including Federal, State, or local government access) to
private property; or (2) modifies any provision of Federal, State, or local
law with regard to public access to, or use of, private land.”
Furthermore, “Nothing in this Act modifies any authority of Federal,
State, or local governments to regulate land use,” or “requires the owner
of any private property located in the Highlands region to participate in
the land conservation, financial, or technical assistance or any other
programs established under this Act.”1 Nothing in the Highlands
Conservation Act precludes the Town Board from approving any of the
Proposed Modifications.
The Land Conservation Partnership portion of the Highlands Act
provides federal financial assistance for qualifying projects. The Act
states that land conservation partnership projects will be consistent with
areas identified as having high conservation value in the Important
Areas portion of the Highlands Study, the Conservation Focal Areas
portion of the Study Update, the Conservation Priorities portion of the
Study Update, and land identified as having higher or highest resource
value in the Conservation Values Assessment portion of the Update.
“Tuxedo and Arden Farms” has been identified as an area of highest
conservation value. The portion of the Tuxedo Reserve site that has
highest conservation value, as shown on Figure 3-19 (in red) of the
2002 Highlands Regional Study Update, is the Northern tract. The
Southern tract and the Fox Hill tract are shown as having a range of low
to moderate to high values. Most of the Northern tract and almost the
entire Fox Hill tract are being preserved as open space without having
to acquire it by use of state and federal funding. The majority of the
Southern Tract, with mostly moderate resource value, is also being
protected as open space.
Comment 2-40:
1
We in the New York Highlands Coalition believe that the proposed
Tuxedo Reserve development does not meet the standards spelled out in
http://na.fs.fed.us/highlands/con_act/index.shtm
DRAFT
3.2-21
June 21, 2010
the 2004 Highlands Act, which calls for conserving priority lands and
natural resources in the Highlands region. We believe that this proposed
development does not “recognize the importance of the water, forest,
agricultural, wildlife, recreational, and cultural resources of the
Highlands region.” The Act states that the Highlands region holds
national significance to the United States. We believe that the standards
spelled out under the Act have not been honored in this project. The
best use of this land would be for land owners and local officials to seek
preservation of this property, thus avoiding the segmentation and further
fragmentation of a valuable section of the Highlands. (Highlands
Coalition)
Response 2-40:
See Response 2-39. Nothing in the special permit limits the
Applicant/Property Owner from negotiating with outside agencies to
preserve the property. Consistent with the objectives of the Highlands
Act, 76 percent of the Tuxedo Reserve site would be set aside as
permanent open space.
Comment 2-41:
What has the Tuxedo Town/Planning Boards done as to the Federal,
Highland Regional 2004 Bill in funding of full [acquisition] purchase of
the TR 2,400 open space acres? (Kwasnicki 10/26/09)
Response 2-41:
The Planning Board does not have any authority to purchase or acquire
land on behalf of the Town. The Town Board has no plans to purchase
Tuxedo Reserve. Nothing in the special permit limits the
Applicant/Property Owner from negotiating with outside agencies to
preserve the entire property as open space. See also Response 2-39.
Comment 2-42:
How much of the TR Natural Wildlife site including Mountain Lakes,
under existing Subdivision Regulations and Town Zoning could single
family housing units be built? (Kwasnicki 10/26/09)
Response 2-42:
The number of housing units that can be developed on any portion of
the Project site is determined by the Project Approvals, which were
issued in accordance with the Town’s Zoning Law, in particular the
provisions governing a planned integrated development (“PID”). As a
PID, the number of residential units permitted anywhere in the Project
is delineated in the Project Approvals. Under the 2004 Project
Approvals, no residential units were authorized in the area proximate to
Mountain Lake. The Proposed Modifications would transfer some of the
residential units authorized to be built elsewhere on the Project site and
allow such units to be built on lands that are in the general vicinity of
Mountain Lake. No increase in the overall number of residential units or
bedrooms is proposed.
Comment 2-43:
The concept of creating a new development based on a variety of
housing stock, clustered around a social commercial center, with a lot of
open public park-like space, is the current politically correct view for
this kind of development. However, I do have a quarrel with the ratio of
development space versus the amount of open space. (Yrizarry)
June 21, 2010
3.2-22
DRAFT
Response 2-43:
The Proposed Modifications do not propose to decrease the open space
of the Project, but rather propose to marginally increase the open space.
With the proposed modifications, the amount of dedicated open space in
the Southern Tract would increase to 778 acres from the 773 acres that
were analyzed in the 2003 FEIS. Since the total number of units would
remain constant (1,195), the proposed modifications would result in a
slightly greater ratio of open space to housing units. Furthermore, the
Proposed Modifications do not contemplate any changes to open space
preservation in the Northern and Fox Hill Tracts, which would preserve
870 and 234 acres, respectively. Therefore, the Project would preserve a
total of 1,740 acres of open space.
Comment 2-44:
From what I have seen and read about this proposed development all the
new homes will be basically right along the state land border. If these
homes are allowed to be built, I want to the developer to keep those
homes at least 500 feet from the State land so my hunt and hiking will
not be in someone’s backyard! I believe that this is a very important
point. The 500 feet zone should fall on the developer and not on people
who hike and hunt in the area of the Long Swamp. Check out the State
Land map of Sterling Forest State Park and you will see what I am
talking about. Along with countless new homes also come ATVs and an
end to the many people who love this part of Sterling Forest State Park.
I say no to new houses in this area. (Schmidt)
Response 2-44:
Residential development is limited to the Southern tract. The Southern
tract does not directly abut state lands—it is separated from same by an
existing utility line along the Southern tract’s southeastern boundary. A
small portion of Sterling Forest State Park is situated south of the utility
line—hunting is restricted from the Doris Duke Nature Sanctuary but is
allowed in the vicinity of Long Swamp. The Project Modifications
would not introduce any new residential development in the vicinity of
Sterling Forest State Park not already approved by the special permit.
Hiking on state parkland is not restricted or limited as to location from a
residence. As per §11-0931 of the New York State Environmental
Conservation Law, no person shall “discharge a firearm or long bow
within five hundred feet from a dwelling house, farm building or farm
structure actually occupied or used, school building, school playground,
or occupied factory or church.” Portions of the Long Swamp area will
remain 500 feet from residences in the project. In addition, hunting
opportunities are available elsewhere throughout the park. Motorized
vehicles are not permitted within Tuxedo Reserve open space lands; use
of state lands is as per state regulations.
Comment 2-45:
The 2004 approval preserved over 1,700 acres, the Northern Tract in its
entirety, Fox hill in its entirety, and a significant portion of the Southern
Tract that included Mountain Lake, which at the time was determined to
be an environmental treasure that should not be built upon. I do not
believe that Mountain Lake should be developed. (McCathern )
DRAFT
3.2-23
June 21, 2010
Response 2-45:
June 21, 2010
The Proposed Modifications would enhance the Project’s protection of
environmentally sensitive lands and vernal pools used for breeding by
amphibious species of special concern by relocating certain
development to less-sensitive areas, such as the area in the vicinity of
Mountain Lake. Mountain Lake itself, its surrounding wetland area, and
the 100-foot adjacent area beyond the wetland would not be developed.
The vernal pools and other areas to be preserved are identified in DSEIS
Figures 5-2 through 5-7. However, there is no State legal requirement to
preserve the vernal pools for protection of species of Special Concern,
and therefore the plan as approved in 2004 could still be approved and
built. The Proposed Modifications would change that by protecting
these vernal pools.
➭
3.2-24
DRAFT
Chapter 3.3:
Comments and Responses – Economic and Fiscal Analysis
A. CHAPTER 3: ECONOMIC AND FISCAL ANALYSIS
POTENTIAL IMPACTS TO TOWN SERVICES
Comment 3-1:
We recommend that the Town retain an appraiser or market valuation
specialist to review the proposed market values used in the fiscal
analysis. Given the current state of the housing market, the market
values appear to be ambitious. It is recommended that the proposed
Town costs be reviewed with the Town's bookkeeper to ensure that the
values are reasonable. (Tim Miller Associates) The applicant has
represented that the project will be tax-positive—generating more in
taxes than it demands in services—despite the fact that this is rarely the
case for residential subdivisions. However, this tax benefit is completely
depended on some hard-to-believe assumptions. More than 500 of the
1,195 tax-generating units (nearly half) are valued from just under $1
million to nearly $1.5 million. These units have a maximum of 4
bedrooms, and no more than 1/3 of an acre. By contract, the only sale in
Tuxedo Park this past year was a 7-bedroom mansion on 1.5 acres for
$950,000. (Target Tuxedo Group, Pendl) Look at the Sunday New York
Times real estate section and see the recent home sales in Tuxedo. That
will tell you that the price of a home on a 1.6 acre lot, sold for
significantly less than what the Related Company is projecting for
homes on much smaller lots. (Pompan)
From my own experience in trying to sell a three bedroom house on 1.3
acres without one bid suggests that this report saying that they are going
to sell a four bedroom house on one third of an acre for $1.5 million,
then bring them my way. (Wilson)
The developer uses unrealistic projections of real estate values and
property tax revenues. Comparable sales in our community firmly
establish that the assumed Tuxedo Reserve house prices are sad relics of
the 2007-era boom, not what is reasonable today. (Colwell)
Response 3-1:
DRAFT
The DEIS economic and fiscal analyses were based on realistic
development assumptions and value estimates as established by the
proposed developer and as analyzed by a nationally recognized real
estate valuation consulting firm, Robert Charles Lesser & Co.
(“RCLC”). Given the economic changes experienced in the local and
national real estate markets in 2008 and 2009 it is appropriate that the
FSEIS include updated market analyses. Chapter 3 of the FSEIS
provides the revised analyses, and Table 3-1 below shows the
differences between the market values used in the DSEIS and this
FSEIS. In addition, the Town of Tuxedo has retained Real Estate
Solutions Group, LLC, (“RESGroup”) to review the fair market value
3.3-1
June 21, 2010
projections that the Applicant has included in the FSEIS. RESGroup has
determined the fair market value projections by the Applicant and its
consultant to be reasonable. Largely, because of the fact that Tuxedo
Park is a long-established neighborhood, there has been a dearth of resale activity in that community as compared to new sales in the
comparable master-planned communities. Therefore, use of sales of
existing homes in the Village of Tuxedo Park are not considered to be
the most appropriate comparables for projection of fair market value of
homes and units in Tuxedo Reserve. The appropriate comparables are
sales of new homes and units in other master planned communities that
are similar to Tuxedo Reserve. Nevertheless, some consideration was
given to the limited amount of sale activity in Tuxedo Park including a
July, 2008 sale of a 3,072 square foot, 7-bedroom, 3 bath home on 0.33
acres for $1,520,000 ($495 per square foot); an October, 2009 sale of a
3,886 square foot, 8 bedroom, 5½ bath home on 1.50 acres for
$2,800,000 ($720 per square foot); and an April, 2010 sale of a 4,260
square foot, 7 bedroom, 5 bath home on 0.88 acres for $1,750,000 ($410
per square foot). Although it is acknowledged that these properties
contain larger sites, the sale prices per square foot are well above the
prices estimated for Tuxedo Reserve and therefore lend credibility to
those estimates.
The updated market study prepared for this FSEIS shows a reduction in
housing prices from the values previously projected for the Project’s
units. The projected reduction has been included in the revised fiscal
analysis and the results are generally consistent with the DSEIS finding
in that the Project with Proposed Modifications would result in a net
fiscal benefit to the Town of Tuxedo and the Tuxedo Union Free School
District in each of the three phases of development.
June 21, 2010
3.3-2
DRAFT
Chapter 3.3: Comments and Responses – Economic and Fiscal Analysis
Table 3-1
Market Values used in the DSEIS and FSEIS
Unit Type
SINGLE FAMILY
Non-Restricted
Estate
Manor
Village
Cottage
Cottage (Alley)
Carriage
Age-Restricted
Village
Cottage
Cottage (Alley)
Carriage
MULTI-FAMILY
Non-Restricted
Townhouse
Multi-family
Multi-family
Multi-family
Age-Restricted
Townhouse
Multi-family
Multi-family
Multi-family
Beds
Number of
Units
Market Value per Unit
DSEIS
FSEIS
4
4
3
3
3
2
27
101
216
158
161
42
$1,461,600
$1,211,000
$1,126,400
$946,400
$873,600
$686,350
$1,412,100
$1,162,350
$970,800
$781,000
$781,000
$572,500
3
3
3
2
8
26
17
8
$882,000
$790,400
$729,600
$544,250
$872,000
$717,000
$717,000
$553,500
2
3
2
1
61
36
178
18
$722,000
$390,000
$390,000
$390,000
$515,700
$312,320*
$250,803*
$179,821*
2
3
2
1
58
16
62
2
$650,000
$390,000
$390,000
$390,000
$460,800
$312,320*
$250,803*
$179,821*
Notes: * Multi-family housing units were valued based on a rental income approach as described in
Appendix F of this FSEIS.
Sources: Tuxedo Reserve DSEIS and Robert Charles Lesser & Co.
Comment 3-2:
The Town currently has a population which is less than 3,700 people but
demands, and is provided with, full services that are sufficient for a
much larger population base, including police, road maintenance, a
library, and paramedics. Thus, if Tuxedo Reserve is built out, the costs
of the police force and DPW will not need to rise anywhere near the
percentage rise in population and the paramedics will cost the taxpayer
less because there will be more calls and thus more reimbursements. At
least for the present, the High School is made viable by the fact that 85
percent of its students come from Greenwood Lake. As we all are aware,
Greenwood Lake is making a huge effort to obtain State funding for its
own high school and will eventually succeed. What is worse is that we
would probably be forced to merge with another system (to the south or
north) which would cause a huge increase in our school taxes. Since
about 70 percent of the Town is already permanent open space even
before the addition of Tuxedo Reserve's open space acreage there is no
hope of achieving the desirable population elsewhere in the Town.
(Sonne 10/26/09)
Response 3-2:
Comment noted.
DRAFT
3.3-3
June 21, 2010
Comment 3-3:
Tuxedo Reserve’s financial experts are not our financial experts. It has
been several years and major changes have happened in the real estate
and financial market since the Town hired its own fiscal experts. The
SEQRA law is written to allow the lead agency to gather its own
information with it costing the Town citizens. We should be doing our
own studies before we rush to approval. (Scher, Pendl)
We are asked to believe and trust the analyses and models but we see
that our Town’s comments are putting a hole in the side of every single
one of their basic numbers. (Kilduff)
It is important that the Town Board do a thorough and independent
fiscal analysis of the proposed amendment as recommended by the
Town Planning Board. This analysis should include a comparison of the
fiscal impact of the 2004 plan with that of the 2009 plan with and
without age restricted housing. (Target Tuxedo Group) More fiscal
analysis is needed before we can proceed. (Caverre)
This review should include an analysis of the fiscal impact of the
proposed changes in housing mix from no less than 866 single families
detached and semi-detached units that were part of the 2004 Special
Permit to no less than 761 units. This produces an increase in
concentration in the number of multi-family units by something like 41
percent. (J. Hays 10/26/09)
A development is rarely tax neutral, but this one will generate at least
41 percent negative tax impact, to be borne by the Town of Tuxedo. (J.
Hays/Alleman)
The tax assessor, Greg Stevens, has told me that he was not asked to
review these documents (M. Hanson)
Due to the errors in this document I would like to ask the Town board to
hire capable consultants that have the background to go through and
audit, and to verify the veracity of the numbers, and their origin. There
are math errors throughout the document. (Gerling)
The board would be well served to engage the services of an
independent specialist to help it make an assessment of the critical core
issues presented in this amended permit, particularly a fiscal analysis.
The forecasted benefit of this development, which shows a positive tax
result for Town and village taxpayers, should be studied carefully and
be required to realized by having these favorable economics be
protected by the developer (i.e. through cash contingent payments since
the actual experience of many other communities has been realization of
negative tax impacts). (Stebbins)
Please hire a professional who will represent the town's interests in
conducting a fiscal analysis, and please direct these professionals to
assess the cost of the appropriate mitigation of library services. Given
that the applicant has neglected to provide adequate service for the
proposed new population in the area of library service, it is crucial that
the fiscal analysis extend to review of critical municipal services such as
the true cost of fire protection, for example. It is right and fair that the
applicant pay for the additional infrastructure our town will need
June 21, 2010
3.3-4
DRAFT
because of the additional population generated by their projects. Please
protect your constituents from unfair burdens, secure a fair plan of
mitigation for all municipal services. It is fine for the applicant to make
money, but not at our expense. Please do not burden us with paying for
expenses that belong to them. (Spooner)
Response 3-3:
The economic and fiscal analyses presented in the DSEIS follow the
methodologies for fiscal analyses approved by the Town Board in the
2003 FEIS. The revised fiscal analysis has been reviewed and
scrutinized by special consultants retained by the Town, the Town’s
consultant team, Town Board Members, and the public. In the
preparation of the fiscal analyses, the Applicant’s consultants discussed
the overall approach and key variables (such as assessment data, tax
rates, budget line items) with Town officials to obtain their input and
guidance concerning the acceptable methods of updating the fiscal
analysis.
As described in response to Comment 3-1, RCLC prepared an updated
market valuation, the data from which has been relied upon in the
revised fiscal analysis and which has been reviewed by the Town’s
consultant, RESGroup. RESGroup has concluded that the RCLC’s
market valuation is reasonable.
With regard to the request to analyze the project without age-restricted
housing, the purpose of the fiscal impact analysis contained in the
DSEIS is to identify and evaluate the potential for the Proposed
Modifications to generate new significant adverse fiscal impacts not
previously identified in the Project Approvals. The Proposed
Modifications include Active Adult dwelling units. Therefore, the
commenter’s request to study the fiscal impacts of a hypothetical plan
without Active Adult units is outside the scope of the DSEIS. Part of the
revised fiscal analysis assesses the potential fiscal impacts of the
Proposed Modifications, including the proposed changes in the Active
Adult units, such as the increase in multi-family units attributable to the
Proposed Modifications’ re-allocation of some of the Active Adult units
from single-family homes in Phase 2 to multi-family units in the
Commons in Phase 1.
The Town of Tuxedo does not have the power under New York State
law to impose general project impact fees—or “cash contingency
payments” as suggested by the commenter—if tax and other revenues
are less than projected in the SEIS. Such an impact fee was not imposed
in the Project Approvals and there is nothing in the Proposed
Modifications that would warrant the imposition of such a guarantee,
even it was allowed by law.
Finally, it should be noted that the Town has retained RESGroup to
review the Applicant’s fiscal analysis of the Project with the Proposed
Modifications. The revised fiscal analysis analyzes all of the potential
fiscal impacts of the Project with the Proposed Modifications, including
but not limited to those that are identified in the comment.
DRAFT
3.3-5
June 21, 2010
Comment 3-4:
We find the current fiscal analysis to be deficient in a general manner
because the methodology and assumptions are not adequately explained
and justified. We are presented with a fiscal impact report that is quite
specific in its results but not specific in the discussion of methodology.
Furthermore, some of the assumptions used are questionable and it is
not possible, with the materials available, to determine how the authors
came to those assumptions and what basis the authors used to choose
such assumptions. A reasonable person could have used assumptions of
a substantially different nature and thus come to a separate and distinct
conclusion on the fiscal impacts of the Project. (Camoin Associates)
Response 3-4:
A revised Chapter 3, “Economic and Fiscal Analysis” can be found in
Appendix D. This revised economic and fiscal analysis sets forth the
relevant assumptions and methodologies and they have been reviewed
by the Town’s consultants.
Comment 3-5:
The projected net fiscal impact of the Project relies on the anticipated
market values of the units to be built in the Project. The Analysis
recognizes the key nature of this input in “Section E: Conclusions” on
page 3-21 in its “Table 3-20: Home Value Impairment Analysis”. Table
3-20 shows how the fiscal benefit to the Town diminishes with a 5, 10,
15, 20 and 25% reduction in unit values. Specifically, it shows how a
reduction of 25% in the value of Project homes would produce a
negative impact for the School District if a new high school had to be
built. And this is, of course, before any of the various Deficiencies,
above, are taken into consideration. However, the Analysis lacks a clear
justification for the market values used. The only evidence presented is
in Volume II of II, Appendix B. The evidence in question is itself titled,
“Residential
Market
Update
and
Strategic
Development
Recommendations for Tuxedo Reserve, Tuxedo, New York” prepared
by Robert Charles Lesser and Co. (the “RCLCO Report”). The RCLCO
Report as included in Appendix B is clearly an abridged version of a
larger report, as the report numbers pages consecutively from 0-26 but
is missing pages 5-24. The RCLCO Report included in Appendix B
does not provide any actual market data but rather simply states
recommendations as to how the Developer should price units. It seems
to reference market data the RCLCO Report authors may have used and
other studies that may provide information as to price premiums for
planned luxury developments, but none of that data is included or
attached to our knowledge. This is in contrast to the retail market
analysis also included in Appendix B which lays on the data in a
convincing manner that the reader can review and verify. In itself,
therefore, the RCLCO Report included in Appendix B is not sufficient
to substantiate market values used in the Analysis, which, as stated
above, are essential factors in calculating net impacts. (Camoin
Associates)
Response 3-5:
Please see the Response 3-1. The FSEIS contains a full and updated
market valuation report from RCLC, included herein as Appendix E,
including the appendices requested by the commenter. The updated
June 21, 2010
3.3-6
DRAFT
market valuation report from RCLC has been reviewed by the Town’s
special fiscal consultant, RESGroup.
Comment 3-6:
The fiscal analysis should also review the potential local tax impact of
the inclusion of condominiums in the project where NYS law provides
that the aggregate of the assessment of the individual units plus the
common interests cannot exceed the total valuation of the property as a
whole. Condos often generate less favorable tax revenues for
municipalities. (J. Hanson).
South Field is on the northern part of the Town and they pay a $1,000 a
year to Tuxedo. We are looking at big expenses here and we had better
make sure that our taxes are not going to fund Tuxedo Reserve. (M.
Hanson)
Another potential local tax impact to be studied is the decrease in local
taxes if the developer of the multifamily units seeks exemption under
Articles 18 and 19 of the New York State private housing finance law
for the inclusion of affordable units. (M. Hanson)
Response 3-6:
The valuation of condominiums uses a rental income approach
consistent with the FEIS and consistent with New York State tax laws;
the valuation is included in the FSEIS. As described in Response 3-5,
the DSEIS fiscal analysis considers the potential fiscal impacts of the
Proposed Modifications. The Proposed Modifications do not include
affordable housing units, and therefore the commenter’s request for an
assessment of the potential tax implications of affordable housing is not
within the scope of the SEIS analysis.
Comment 3-7:
The authors did not properly calculate the increase in property tax
revenues for either the Town or the School District. On Table 3-3, the
analysis states that the property currently generates $194,153.31 in
property tax revenue for the Town and $336,020.69 in property tax
revenue for the School District. Table 3-14, titled “Estimated Town
Property Taxes from the Tuxedo Reserve Development, 2009,” lists the
entire amount of property tax to be generated, not just the increment
above the $194,153.31 that the property is already generating for the
Town. Likewise, on Table 3-19, the amount of property tax revenues for
the school district is incorrectly listed as the entire amount of property
tax revenues from the property, failing to net out the current
$336,020.69 in payments made. In effect, the analysis is overstating the
amount of new property tax revenue the Town and school district will
enjoy on an annual basis by well over half a million dollars per year.
(Camoin Associates)
Response 3-7:
The tables cited in the comment are not incorrectly calculated, as
suggested by the commenter. The tables appropriately present the total
future tax revenues expected to be generated by the Project with the
Proposed Modifications, which is the proper basis for comparison
against the total of likely future Town and school expenses.
DRAFT
3.3-7
June 21, 2010
Comment 3-8:
Of the 1,195 proposed units, 197 (16.5%) are proposed to be agerestricted, and therefore generate no school-aged children. As such,
these units would contribute to the school district tax base with no
demand for services. However, the bottom has fallen out of the agerestricted housing market. A recent market analysis found the current
inventory of age-restricted housing in Orange County alone reflects a
24.5 year backlog. As a result, age restrictions on such units have been
lifted in Town after Town, converting them into unrestricted housing
that can have school children. Even if you agree that the housing units
would generate only 0.43 students each, the conversion of 197 units into
unrestricted housing will result in 85 more school children, or an
additional $1.86 million in costs per year. (Target Tuxedo Group)
Because age restricted housing is not selling at this time, the analysis
should be done with and without age restricted housing. (J. Hays
10/26/09)
The fiscal analysis should include the impact of the number of school
children which would be generated if the proposed age-restricted units
fail to be marketed successfully and have to be converted to regular
multifamily units as has already happened in Goshen (see attached
market study). (J. Hanson)
Why should we risk accepting that hundreds of Active Adult units will
remain so, even though the target "Baby Boomer" market will likely be
in its 70's with no successor "wave" to sell to? Why should we bare the
risk that these units may become family homes with the consequent
demands for more schools and teachers? (Regna)
Response 3-8:
Dedicating a small segment of the total development for Active Adult
age restricted housing is consistent with the concept of Tuxedo Reserve
which is to create a master planned community that provides a complete
continuum of housing types and associated community amenities. As a
unique housing product within the Orange County marketplace, the
Active Adult housing component is unlikely to be subject to the
excessive backlog of absorption noted in the comment. In addition, the
updated market analysis specifically addresses the age-restricted market
segment both in terms of market feasibility and anticipated absorption.
As detailed in the updated market analysis, the economic downturn may
delay realization of the potential of this market as some Active Adults
have decided to postpone retirement or wait until the value of their
existing home recovers, but the large size and future growth of this
demographic justifies the conclusion that the active adult housing will
be marketable. In addition, it is not correct that all active adult housing
is not selling. There is a market for active adult housing in well
designed new-urbanist communities with ample recreational
opportunities and a design that enables residents to walk stores for local
shopping needs. Please refer to Comment and Response 11, in RCLO’s
April 14, 2010 response letter to RES’s March 24, 2010 comment letter,
contained in Appendix F for further information.
Comment 3-9:
The homes in Tuxedo Reserve will be placed on lots of no more than
1/3 acre, meaning massive clearing, grading and blasting will be
June 21, 2010
3.3-8
DRAFT
needed. No less than 50 retaining walls, measuring as high as 30 feet,
and as much as a half mile long, and some 25 rock cuts are proposed.
Most of the retaining walls and rock cuts are associated with road
construction, and these roads will eventually be turned over to the Town
to maintain. Maintaining simple roads is expensive enough. How much
will it cost to maintain roadways supported by retaining walls as high as
30 feet? (Target Tuxedo Group, Regna)
(Page 3-15, Highway) The analysis of costs of maintaining the new
roadways does not take into account the extensive system of retaining
walls and rock cut faces that are proposed along the new roadways. The
Town Supervisor mentioned at a public meeting the possibility that the
maintenance of these features could be the responsibility of a
Homeowners Association, but such an arrangement is not being
proposed as part of the amendments. Therefore, this maintenance must
be accounted for in the projected municipal expenditures, which could
be substantial. Should an eventual arrangement be made for
maintenance to be performed by an outside entity, the Town Board
should assess the impact on the Town if that entity fails to perform the
maintenance. (Gross 12/31/09)
Response 3-9:
These issues were fully analyzed in the FEIS and Findings Statement.
To the extent that the Proposed Modifications would increase the
number of retaining walls or length of roadways, the additional
retaining walls and roadways would be maintained by the Project’s
Home Owner’s Association (HOA). The HOA’s formation will be
approved by the New York State Attorney General, and will be
reviewed by the Town Attorney and Town Board under the Special
Permit. In order for the HOA to be approved, the Applicant will be
required to prepare a budget for all anticipated HOA expenditures,
including but not limited to the maintenance of all HOA owned roads
and retaining walls. The HOA will be required to assess all property
owners on a monthly basis to address all expenses.
Comment 3-10:
The claim by the developer as well as by your Town Board that the
development and the addition of almost 1,200 units to a Town of our
size will be tax neutral or even tax positive is suspect to say the least. It
is well known that in general a tax dollar received from the residents
necessitates about $1.30 in services to be provided to the community.
Ideally this shortfall is covered by business taxes. There is no business,
no industry, no commerce in our small community big enough to make
up for the discrepancy and it is a fallacy to believe that the development
will bring business to the Town; Tuxedo is simply geographically not
large enough to accommodate meaningful tax paying enterprises with
the railroad, the Thruway, Route 17 and the River filling our narrow
valley. Business—it is no exaggeration to say—will move south with no
major monetary benefits to Tuxedo. (Pendl)
I did want to say something about the rateables chase from which you
never catch up. It goes like this. New development creates greater need
for infrastructure and services which in turn creates a greater need for
more rateable to meet expenses, which creates greater need for more
DRAFT
3.3-9
June 21, 2010
development and so on in an endless circle. The correlation between
development and high taxes is inescapable. Taxes are highest in the
most developed areas. In Bergen County, where I live, taxes are
extremely high, and the area is choked with sprawl, traffic jams and
pollution. And with a project of this size you would get into a hole you
would never get out. Why would you do this to your community?
(Kohn)
High density housing is rarely tax positive for a town. And that's a
danger to Tuxedo. (Barnett)
Consideration of other communities' studies should give pause to
accepting Related's financial analysis of the positive tax impact of
Tuxedo Reserve. What makes Tuxedo Reserve different from most
communities? (Steele 12/17/09)
Despite several new residential real estate developments in Tuxedo over
the last twenty years such as Table Rock and Hamilton Estate, I have
not noticed my taxes going down. Have yours? They have gone up.
Why do we think the impact of Tuxedo Reserve will be any different?
(Steele 11/20/09)
The developer is back here for one reason only, its economics. They
cannot build it because they cannot sell it for the price they need. They
are asking the Board to give us more density, more multi-family units,
more commercial property. That’s only to help with their bottom line.
Everything I hear says that its going to cost you money to the taxpayers
when all is said and done. (George)
Response 3-10:
As detailed in Response 3-1, the fiscal analyses conducted for the SEIS
have been based on realistic development projections and the
application of appropriate cost and revenue projections. As shown in
Chapter 3, “Economic and Fiscal Analysis” in Appendix D, the project
with the Proposed Modifications is estimated to have a positive fiscal
impact to the Town of Tuxedo and TUFSD. There are several factors
that offset the assumed ratio of $1.30 in cost for every $1.00 in revenue
statistics, or in the so-called “rateables chase” referred to above.
Chapter 3, “Economic and Fiscal Analysis” can be found in Appendix D.
Not only does the provision of the Active Adult housing component
significantly enhance the Project’s fiscal balance but the inclusion of
additional retail uses in the Commons also supports the fiscal balance of
the Project with the Proposed Modifications. The Project with the
Proposed Modifications, with its housing and bedroom mix, would
likely generate fewer students per dwelling than a comparable
subdivision composed solely of single family detached dwellings. Since
school costs are the largest component of the property tax levy, housing
and bedroom mix has a major influence on the net cost to revenue ratio.
Comment 3-11:
June 21, 2010
The doubling of the population will mean we require additional library
facilities. Five years ago, it ended up that the library was going to be
given a half acre parcel in the center of Tuxedo Reserve to build a
library. There was a 12 year sunset provision. We have some changes of
circumstances in that the library is busier than it has ever been
3.3-10
DRAFT
(circulation is up 38 percent). Voters now approve any increases in the
library budget. Since the time of the approval, we have met with the
developers and had some very good conversations. At one point they
told us they were willing to build a library building for us, then hand to
the library to manage and operate. It was never put into writing but
would be a vast improvement for the library I see in the applicant’s
version of an amended resolution that the developer has a choice of
either giving the library the land or building a library facility. That’s
certainly what we discussed with the developer. (Gladding 10/26/09)
The original permit which was approved by the Town Board on
November I5, 2004 stipulated that the Developer would give one-half
acre of land in the Commons area to the Library for construction of a
branch or satellite Library so long as the Library provided proof of
financing within 12 years of the approval date and that construction
started within one year of proof of financing. Otherwise the land would
revert back to the Developer. Since the time of the November 15, 2004
approval there have been changed circumstances at the Library. The
Library is now being used at record levels. Our circulation has increased
by 38 percent in the past four years. Our current facility is now barely
adequate for our current population, let alone any increased customers
as Tuxedo Reserve begins to be built. Another changed circumstance is
that now any increase in tax funds for the Library must be approved by
voters. It is extremely unlikely that Tuxedo voters would approve the
funds needed to build a second Library facility in Tuxedo Reserve until
the time that the development is largely built out, the tax base has
substantially increased due to the build out, and there are enough voters
within Tuxedo Reserve to help gain ballot approval of the necessary
building funds. That time is well out into the future. (Gladding
10/29/09)
When the makeup of the Tuxedo Reserve management team was
changed several years ago Library representatives met with the new
team several times. During those conversations the Tuxedo Reserve
people said that their plans had changed and they now planned to pay to
construct a building for the Library in the Commons area. The Tuxedo
Reserve representatives also said they would transfer that building to
the Library if the Library would then provide library services at that
facility. At those meetings the Library representatives said that a 10,000
square foot facility would be needed and the Tuxedo Reserve
representatives offered only a 5,000 square foot facility; this difference
of opinion was not resolved in those meetings. This plan for Tuxedo
Reserve to pay to construct a building for the Library was never put into
writing. In March of 2009 I further discussed the Library situation with
Andrew Dance. He said that due to economic circumstances the
Developer could no longer commit to building a Library facility
although they still wanted to leave that option on the table. He said that
the forthcoming proposed revised Tuxedo Reserve plans would give the
Developer the option of either: 1) Building the facility, or 2)
transferring the one-half acre to the Library for construction of a Library
facility. (Gladding 10/29/09)
DRAFT
3.3-11
June 21, 2010
For the library, we have also discussed with the developer about the 12
year provision of having financing or you lose the land. Now the
proposal is that if we don’t get financing in seven years, we would lose
the land. So we have to get that fixed. I talked to the developer about
changing the concept to ten years after their first certification of
occupancy; that makes sense because there will be a real market for our
library and it’s a reasonable time frame for us. (Gladding 10/26/09)
In that March 2009 conversation we also discussed the reasonableness
of the 12 year "build it or lose it" time limit which began on November
15, 2004. I suggested that this be changed to 10 years from the date of
issuance of Tuxedo Reserve's first Certificate of Occupancy. Andrew
said that this sounded reasonable for both sides and that he planned to
incorporate this in the Tuxedo Reserve amendments. After our
conversation I realized that I should have used a Certificate of
Occupancy for a residence as a trigger point but I neglected to do this in
our conversation. Turning specifically to the Applicant's Version of the
"Amended and Restated Resolution Granting Special Permit and
Preliminary Plan Approval to Tuxedo Reserve" which was posted on
the Town web site a few weeks ago, I have the following comments and
requested changes regarding
Article XIII:
Regarding point A, revise the sentence to read as follows: "The
Applicant may, at its option and with Site Plan approval by the
Planning Board, construct a library of not less than 5,000 square
feet of usable space in a building in the Commons, which shall be a
branch of the Tuxedo Library."
Regarding point B, the time frame for a financing commitment has not
been changed from the November 15, 2004 approved permit. Five years
have now passed with no signs of construction by Tuxedo Reserve. The
current draft for point B now says that the financing commitment must
be provided by November 16, 2016 - only seven years from now which is now clearly impractical. The time frame for providing proof of
financing in Point B should be changed to 10 years from the date of
issuance of the first Certificate of Occupancy for a residence in Tuxedo
Reserve. (Gladding 10/29/09)
•
Response 3-11:
The economic and fiscal analysis in the DSEIS followed the
methodology of the 2003 FEIS in accounting for additional library
services operating costs, as well as the cost of expanding library
facilities to accommodate the demand generated by the project’s
population. This application does not propose to amend the Special
Permit requirement for the Applicant to donate 0.5 acre parcel within
the Commons to the Tuxedo Park Library. However, the developer has
agreed to extend the time period to seven years from the issuance of the
first certificate of occupancy.
Comment 3-12:
In one of the presentations by Andrew Dance, they spoke about the
water facilities in Tuxedo Reserve and that the plant will be maintained
by the homeowner’s association. It was also said that if there is a point
in time when the association felt they could no longer maintain the
June 21, 2010
3.3-12
DRAFT
water facility that the Town would have to take it over and maintain it. I
haven’t heard any other resolution to this issue. (Lindsay)
Are costs a factor into Related’s financial analysis if the proposed
homeowners association does not maintain properly their water district?
If the new homeowners don't maintain the water district, will Tuxedo
have to assume the operation and costs? (Steele 11/20/09)
Response 3-12:
As required by Town Code and the Special Permit, Tuxedo Reserve’s
water supply system will be part of a Tuxedo Reserve water
transportation corporation, and the Tuxedo Reserve Homeowners
Association will be responsible for meeting the obligations of the water
transportation corporation as determined by the New York State
Department of Health. The Tuxedo Reserve water transportation
corporation will also require the recognition of a backup water supply
district, which is to be owned by the Town. The backup system will be
funded by the users within the district.
Comment 3-13:
What is it going to cost the taxpayers of this Town now? If you go over
the document, we’re taking their word that we are not going to pay a
huge amount of the fire department and highway department costs. In
2003, the fire department estimated well over $1.5 million just in
pumpers, mini-tankers and that is without a building. Are we going to
be paying for this? (M. Hanson)
Response 3-13:
The revised economic and fiscal analyses that is included as Appendix
D in this FSEIS identifies potential fire district capital and operating
costs, which were identified in consultation with the Tuxedo Fire
District officials. The economic and fiscal analysis confirms that the
total projected fiscal revenues from the Project with the Proposed
Modifications are greater than the total projected fiscal costs—including
the costs associated with the fire district and highway department.
Comment 3-14:
The fiscal analysis appears to omit the cost of employee benefits related
to the new police officers required to service the project. On page 3-11
of the Analysis, it states that “[t]he annual cost of providing police
services to the Project with Proposed Modifications is estimated at
approximately $605,000, including the cost of additional staff and
uniforms, police vehicles, and facility improvements.” On page 3-13,
the discussion further states that, “[w]ith annual salaries for police
officers and dispatchers at approximately $60,000 and $40,000,
respectively, the additional salary for 8 new staff would be
approximately $466,000.” The Analysis then goes on to enumerate costs
for patrol cars and facility upgrades. However, the salary cost of new
employees to the municipal payroll must be accompanied by a
proportional cost increase related to employee benefits since the new
employees will enjoy such benefits and since those costs will become
Town costs. From our general experience in municipal finance, we find
that the cost of employee benefits for police officers represent between
40% and 55% of the salary cost. So, in this case, the Analysis omits
additional costs totaling between $186,400 and $279,600. (Camoin
Associates)
DRAFT
3.3-13
June 21, 2010
I just wonder how much work they did to verify their documents, so I
would suggest at some point, you meet with your accountants, your
clerk, your budget officer, Ed Sullivan, and meet with the consultants,
and get the correct numbers out. Between the highway department and
the police department they identify the need for four additional people.
They used $61,000 for police after talking with the Chief and $71,000
for the highway department, with benefits, and I didn’t know you were
paying your highway department people more than you were paying for
police officers. (Gerling)
Response 3-14:
The DSEIS analysis incorrectly omitted the employee benefits related to
the new police officers. This omission has been corrected and is
included in a revised Economic and Fiscal Analysis (see Appendix D of
this FSEIS) The inclusion of this cost does not alter the DSEIS finding
that the Proposed Modifications would not have the potential to
generate any new significant adverse fiscal impact not already identified
in the FEIS.
Comment 3-15:
The assessment of the potential reduction in home values and the
continuation of tax positive estimates only considers the school budget
and does not consider the Town budget at all. (Gross 10/26/09)
(Page 3-21, Table 3-20, Home Value Impairment Analysis) In
describing the conclusions represented in Table 3-20, the DSEIS states:
"As shown in Table 3-20, regardless of impairment in home values of
up to 20% with a new high school and 25% without a new high school,
there would be a positive fiscal benefit to the Town." The table,
however, does not consider the fiscal impacts to the Town at all, as only
the school district is considered in the analysis, as is confirmed by the
projected $2,277,320 surplus at the top of the table (see Table 3-21 on
the next page for confirmation). The fiscal impact on the Town, which
is already projected to be negative for the General Fund and Fire
District, would likely become negative in all taxing jurisdictions. (Gross
12/31/09)
Actual sales records in the vicinity suggest that the projected sale prices
already were too high, even for the previously hot real estate market. It
is more likely that the table should consider value reductions on the
order of 30 to 35%. (Even this reduction would have the four-bedroom
Estate units on 1/3 acre selling for more than the recent $950,000 sale of
a seven-bedroom mansion on 1.5 acres in Tuxedo Park.) (Gross
12/31/09)
Response 3-15:
Please refer to Response 3-1. Appendix D of the FSEIS contains the
economic and fiscal analysis as revised of both the school budget and
Town budget incorporating the projected tax revenues to be generated
based on the revised market values identified in the updated market
study.
Comment 3-16:
As currently presented Tuxedo Reserve creates a problem that will
require substantial taxpayer dollars to fix. Specifically taxpayer dollars
from those of us are who are not part of the development. The Tuxedo
June 21, 2010
3.3-14
DRAFT
Park library will require additional infrastructure to meet the needs of
the population generated by Tuxedo Reserve. The costs of this
additional library infrastructure could run into the millions of dollars.
The applicant does not provide adequate mitigation for this service. The
cost of land, the building, additional furniture and equipment will be
borne by us, not by the applicant. (Spooner)
Response 3-16:
The SEIS accounts for the incremental cost of the project on Tuxedo’s
library services. Specifically, the economic and fiscal analysis estimates
an incremental annual cost at full build-out of $709,738, which includes
additional operating budget as well as debt service associated with
expansion of the library. The SEIS analysis is conservative in assuming
project-generated incremental operating costs would increase in
proportion to the number of new residents in Tuxedo Reserve. For
smaller jurisdictions (typically less than 10,000 to 20,000 residents),
staffing patterns and facility requirements for some local services may
be such that, up to a certain point, new growth is likely to cause a
decline in the jurisdiction’s per capita costs for some services.1
Regarding mitigation, please see the Response 3-11.
Comment 3-17:
Spatial changes in the reconfiguring of the proposed development all
threaten the quality of life in Tuxedo. We want development that will
enhance the current downtown of Tuxedo, while the commercial space
now proposed will weaken rather than enhance what we have, rather
than enriching it. Modest levels of development will increase the
business of local firms, but this larger development will ironically
displace them. You want improvement, not destruction of what we
have. The geometric increase in infrastructure and services that will be
required to accommodate such a construction project and population,
and the long term maintenance, is beyond the resources space that the
new development will create. Worse yet, the problem is that the
development will be a long time in the making, perhaps decades, but the
public investment to accommodate its scale will have to precede the
eventual increase in revenues for the town. That will put tremendous
pressure on finances, at a time in New York State when all its
jurisdictions project long term seemingly insoluble fiscal challenges.
(Pendl/Bender)
Response 3-17:
As indicated on page 3-20 of the DSEIS, a retail market analysis
conducted for the Developer by Gibbs Planning Group finds that the
retail trade areas for Tuxedo Reserve and the greater Tuxedo Park are
currently underserved by existing retail. The study concludes that the
primary trade area for Tuxedo Park could currently support an
additional 86,000 square feet of retail, and that the proposed Tuxedo
Reserve project could support up to 54,700 square feet of retail and
restaurant development at 50 percent build-out. Therefore, the 30,000
square feet of retail and restaurant space to be constructed during Phases
1
Natural Resources Defense Council, “Developments and Dollars; An Introduction to Fiscal Analysis in
Land Use Planning.” http://www.nrdc.org/cities/smartgrowth/dd/ddinx.asp.
DRAFT
3.3-15
June 21, 2010
1 and 2 of the proposed project would not have a negative impact on
existing retailers in Tuxedo.
In the long term, the fiscal impact analysis ensures the balance of costs
versus revenues. In the short term, the Town will employ security,
performance, and timing mechanisms to ensure the Town’s fiscal
interests.
Comment 3-18:
The project is not scheduled to break ground until 2013. As a tax
attorney I do not believe that the town will realize increased tax revenue
until construction actually begins. This means there is time for you, the
council, to negotiate with Related Company to design a project which
has a best chance of being tax positive for Tuxedo. Therefore I request
and reiterate the comments of others that you engage an independent
consultant, to look at, review the impact of these many complex issues.
(Barnett)
Response 3-18:
The project is anticipated to break ground in 2011; the first phase is
expected to be completed and operating by 2013, and therefore tax
revenues would be realized by 2013. Regarding the request for
independent consultant review, that independent review has occurred.
Please see the Response 3-1.
Comment 3-19:
Our concern is fiscal. Tax revenue will obviously be based on property
values in the development. From what I have seen the assumptions with
respect to property values combined with the flexibility the developer is
requesting, with respect to the type of homes to be built, lead me to
believe that the tax revenue will fall well short of expectations.
(Pendl/Seeman)
Response 3-19:
In regard to property values, please see the Response 3-1. In regard to
the “flexibility the developer is requesting,” please refer to Response
2-2 in Chapter 3.2, “Comments and Responses, Land Use, Zoning, and
Public Policy.”
Comment 3-20:
(DSEIS Page 3-14, Table 3-15, Summary of Project Related
Incremental Municipal Expenditures) library debt service is improperly
included in the General Fund Townwide library expenditures are
supported by a special taxing district dedicated to the library, and the
library budget and any expenditures for a new building must be directly
approved by the voters in that district. In addition, representations had
been made by the applicant that space would be provided for a new
library facility at Tuxedo Reserve, yet debt service for the total
projected cost of constructing a 10,000 square foot building has been
included in this analysis as a municipal expenditure, implying that the
construction of new library space is not part of the applicant's proposal
as had been believed. This needs to be clarified. (Gross 12/31/09)
Response 3-20:
The estimated project-generated costs to library services were
incorrectly included in the General Fund Townwide; this has been
corrected in this FSEIS. The error does not alter the total estimated costs
to the Town for library services, nor the finding that the Proposed
June 21, 2010
3.3-16
DRAFT
Modifications would not result in any new or different significant
adverse impacts as compared to those impacts identified in the FEIS.
This application does not propose to amend the Special Permit
requirement for the Applicant to donate 0.5 acre parcel within the
Commons to the Tuxedo Park Library. The SEIS analysis
conservatively includes potential debt service costs for construction to
account for the possibility that the proposed space is not agreed to. In
addition, please see Response 3-11.
Comment 3-21:
(DSEIS Page 3-16, Library) The DSEIS reports that Library Board
President Barbara Dupont has identified that the impact of the Tuxedo
Reserve project will require a new 10,000 square foot facility on a
three-acre site, as well as a largely increased budget (by about
$300,000). Yet, the applicant is offering to provide either a 5,000 square
foot space or a 0.5 acre site. Neither are adequate to mitigate the impact
of the project. Ms. Dupont further pointed out that as her tax generated
revenues are now dependent on voter approval in a special library
district rather than the Town General Fund (a recent development since
the FEIS), and that she is skeptical that the voters will be willing to
approve these large new expenditures. The authors of the DSEIS fail to
fully analyze the impacts as described by Ms. Dupont, mischaracterizing her identification of the need for a 3-acre site in response
to the impact of Tuxedo Reserve as a "request", and stating, "As this
request was not based upon changed circumstances, it is not considered
in this analysis." However, Ms. Dupont has instead provided the
applicant with a new assessment of the impact of Tuxedo Reserve on
library services in the current 2009 context. This should therefore be
treated as new information, which is an identified category of topics in
SEQRA properly assessed as part of an SEIS. (Gross 12/31/09)
Response 3-21:
Please see Response 3-11. In addition, the “change in circumstances”
described by the commenter is that tax generated revenues are now
dependent on voter approval in a special library district. The Proposed
Modifications would not override this town law, nor is there any lawful
basis for requiring that the Applicant shall be responsible for library
facility capital expenditures that are not approved by voters in the
library district.
Comment 3-22:
(DSEIS Page 3-17, Table 3-16, Non-Property Tax Revenues Generated
by Tuxedo Reserve) Items included on this table need to be defined or
explained. For instance, what is "Use of $ and Property"? (Gross
12/31/09)
Response 3-22:
The “Uses of Money and Property” are line items in the Town’s
General Funds and Highway Funds that account for revenues generated
by interest earnings and rental of real property. As there are no changed
circumstances regarding the Proposed Modifications or the passage of
time that alter the potential revenues from this line item, the DSEIS
applied the same methodology as the FEIS in projecting potential
revenues from these sources. Table 3-16 has been amended in the
FSEIS (now Table 3-21) to include a footnote describing this category.
DRAFT
3.3-17
June 21, 2010
Comment 3-23:
(DSEIS Page 3-18,Table 3-17, Summary of Net Revenues/(Costs)) The
focus of this table and the discussion surrounding it is and has been to
state that the project is tax positive, a conclusion that is in itself
questionable based on points already raised in this letter. However, even
if the applicant's conclusions are correct, it would be more accurate to
note that the project is tax positive in certain taxing jurisdictions, while
tax negative in others. This table indicates that the project will be tax
negative in regard to the Town-wide General Fund, as well as for the
Fire Department. To claim that the project is tax positive implies that a
resident may expect to see some reduction in taxes as a result. The fact
of the matter is that those taxing jurisdictions that benefit are unlikely to
lower their tax rates, for fear that they would simply have to raise them
again the following year. To the contrary, the Town and the Fire
Department, however, are extremely likely to raise their tax rates in
order to cover costs. The bottom line, then, is that residents across
Tuxedo can expect to have their taxes raised as a result of Tuxedo
Reserve, even if it is tax positive, and this impact should be disclosed in
a more forthright manner. (Gross 12/31/09)
Response 3-23:
The commenter is referred to Appendix D of this FSEIS for the revised
Economic and Fiscal Analysis. Nevertheless, with respect to the items
discussed in this Comment, it should be noted that DSEIS accurately
characterized the findings of the economic and fiscal analysis for the
Proposed Modifications. Table 3-17 referenced by the commenter is
entitled “Summary of Net Revenues/(Costs).” The table specifically
identified the net revenues, as well as net costs, for each taxing
jurisdiction. The text that introduced and explained the table (on Page 318 of the DSEIS) stated, “Based on the [analysis], the Town would
experience a net positive fiscal impact during all three phases of the
project, although certain districts or fund categories may experience a
net fiscal deficit that would require adjustment in taxes for the taxing
jurisdictions.” The revised Fiscal Analysis estimates that the Project
Without Modifications would experience a negative net fiscal impact in
Phase 1 only, while the net fiscal impact for the Project With Proposed
Modifications would be positive in all phases, although Phases 2 and 3
would be less positive than the Project With Proposed Modifications.
Comment 3-24:
Tuxedo Reserve is quick to point out the “profits” of the development: a
new source of tax revenues, grants and donation of land. What has not
been pointed out is the cost of preparing the donated land for school or
library construction or the ongoing cost of educating school children
that move into new houses or the cost of building more infrastructure
and expanding public services. The $2mm-$4mm Tuxedo Reserve
promises to pay will not cover the additional expenses the Town will
incur later. We will need more police. Will our volunteer ambulance
and fire personnel increase quickly enough to handle increased demand?
Will Related employees volunteer to man our ambulances and fire
trucks or will the Town have to take over managerial and financial
responsibility? Who will provide all the support the fire companies and
ambulance corp. require like buildings, equipment and vehicles? (Steele
11/20/09)
June 21, 2010
3.3-18
DRAFT
Response 3-24:
The economic and fiscal analysis presented in Chapter 3 of the DSEIS
and revised in this FSEIS (see Appendix D) accounts for the costs of
anticipated infrastructure improvements, as well as expected increases
in municipal operating costs. These estimates include consideration of
incremental capital and operating costs for police, fire, and ambulance
services. There is no reason to believe that future residents of the Town,
including future residents of Tuxedo Reserve, would be less willing to
volunteer for ambulatory or fire services; therefore, the analysis does
not assume any future deficit in volunteer services.
Comment 3-25:
Also, consideration should be given for costs that are not obvious and
come in small increments. Examples include more municipal employee
overtime or additional employees for construction oversight, or vehicles
that need servicing or replacing more frequently due to heavier use. TR
will generate traffic, especially construction equipment and commercial,
which means roads wear out faster and need repairs more often. Are the
associated costs included? (Steele 11/20/09)
Response 3-25:
Consistent with the methodology used in the FEIS, the estimated annual
expense of providing additional community services is based on
analysis of the 2009 budget appropriations and discussions with Town
officials as to requirements for new capital expenditures. Incremental
costs were estimated for government support activities, police services,
fire services, road/highway services, library services, and ambulance
services. These costs included increments for municipal employment in
all service areas, and accounted for anticipated operational demands of
the Project relative to existing demand. The incremental operating cost
and capital cost estimates for highway services is based on the
proportional increase in miles of Town roads introduced by the Project
with the Proposed Modifications. This is a common and widely
accepted methodological approach for fiscal impact analyses, and while
it does not capture the cost of additional wear on the existing road
network, it also does not account for potential economies of scale. For
smaller jurisdictions (typically less than 10,000 to 20,000 residents),
staffing patterns and facility requirements for some local services may
be such that, up to a certain point, new growth is likely to cause a
decline in the jurisdiction’s per capita costs for some services.1 To be
conservative the fiscal analysis does not attempt to quantify that benefit
or include it in the analysis.
Comment 3-26:
We need a detailed profit and loss analysis with the following:
Assumption of current housing prices; Assumption of Age restricted
housing removed; Elimination of Assumption of the value of donated
land, sewerage treatment plant; Consideration of the credit risk of
developer; Calculation of additional services required; Calculation of
services now provided as volunteer which will require replacement with
paid services; Calculation of cost of monitoring construction, water
1
Natural Resources Defense Council, “Developments and Dollars; An Introduction to Fiscal Analysis in
Land Use Planning.” http://www.nrdc.org/cities/smartgrowth/dd/ddinx.asp.
DRAFT
3.3-19
June 21, 2010
(amount, quality and runoff), and environment; Inclusion of reserves for
future resolution of unexpected problems. (Steele 11/20/09)
Response 3-26:
Regarding the projected value of the Project’s housing units, please see
Response 3-1. Regarding the inappropriateness of analyzing potential
fiscal impacts without Active Adult units, please see Response 3-3.
Regarding elimination of the value of donated land, please see Response
25 in Appendix C. Regarding the sewage treatment plant, please refer to
the discussion in Chapter 1, “Description of the FSEIS.” Regarding the
credit risk of the Developer, this comment is not within the framework
of the FSEIS, please refer to similar comments and responses in
Appendix C. Regarding services now provided by volunteers, please see
Response 3-24. Regarding the calculation of cost of monitoring
construction, water, and environment, please see the analyses in Chapter
7, “Construction Impacts,” and Chapter 5, “Natural Resources” in the
DSEIS. Regarding the inclusion of reserves for future resolution of
unexpected problems, please see Response 3-3.
Comment 3-27:
Regarding The Tuxedo Reserve Economic and Fiscal Analysis, Camoin
Associates concludes that “a number of material deficiencies exist in the
Analysis that, individually, would be a serious cause of concern.
Collectively, they render meaningless the conclusions draw(n) by the
authors. Furthermore, there may be additional deficiencies that are not
currently known since the information from which Camoin Associates
can make a determination is not currently available.” It is the
responsibility of the Town of Tuxedo and The Related Companies to
make this information available to the public during the written
statement period. They did not make it publicly available. (Wilson &
Kilduff)
Response 3-27:
Please refer to Response 3-3 and the revised Chapter 3 analysis
contained in Appendix D of this FSEIS.
POTENTIAL IMPACTS TO SCHOOL DISTRICT
Comment 3-28:
At least for the present the High School is made viable by the fact that
85% of its students come from Greenwood Lake. As we all are aware,
Greenwood Lake is making a huge effort to obtain State funding for its
own high school and is well on the way to success. Its contract with the
Tuxedo High School expires in June 2014. If we do not have the
students to replace them, the vast majority of whom would have to
come from Tuxedo Reserve, we will certainly lose our high school.
What is worse is that we would probably be forced to merge with
another system (Ramapo or Monroe-Woodbury) which would cause an
increase in the school taxes of the Tuxedo School District on the order
of magnitude of 100%. Just ask your friends in the northern part of
Tuxedo who are in the Monroe-Woodbury School District how much
they pay. Their 2009 school tax rate was $137.53 per mil as opposed to
$63.80 for those of us in the Tuxedo District. The Ramapo numbers are
even worse. (Sonne 12/19/09)
Response 3-28:
Comment noted.
June 21, 2010
3.3-20
DRAFT
Comment 3-29:
Another simple but unfortunate fact is that Baker High School will
cease to exist because The Related Companies refused to build without
a new amendment. The first phase, or 75 houses, was to be completed
by 2009. The Related Companies had $57,000,000 in cash. It is now
2010 and no ground has been broken. It is highly likely that the
Greenwood Lake students will be gone by their intended goal of
2013/2014. The reality is that the school will fail because of The
Related Companies, and new ideas need to be considered without The
Related Companies. (Tuxedo Land Trust)
Response 3-29:
In the future without the Project, there is a very significant likelihood
that the Greenwood Lake students will leave. The Project, in
maintaining a tax base and generating school children, would facilitate
the long-term viability of the school district.
Comment 3-30:
The applicant projects that the 998 unrestricted housing units with a
total of 2,805 bedrooms (an average of 2.8 bedrooms per unit) would
generate 429 school-aged children. This equates to 0.43 students per
housing unit, or 0.15 students per bedroom. If these projections seem
low, then consider that each student not accounted for would create an
additional cost of $21,849 per year, per student. (Target Tuxedo Group)
The applicant’s original Environmental Impact Study (EIS) raises the
question of the number of school children which will be generated by
multifamily homes. This issue needs to be further studied in reference to
the current proposed amount of multifamily units. Is less than ½ a child
per unrestricted housing unit, a realistic assumption particularly when
the current proposal has reduced the number of one-bedroom units and
increased the two- and three-bedroom units? (J. Hanson)
Response 3-30:
The student population estimates for the proposed development are
based on the application of U.S. Census Public Use Microdata Samples
(PUMS), consistently a reliable and widely-used resource for estimating
future student populations for new development projects. The
combination of changes in the 1990 versus 2000 PUMS data, and the
change of anticipated housing units, have increased the student
generation estimates slightly compared with the FEIS and this is
incorporated into the revised Economic and Fiscal Analysis set forth in
Appendix D. The level of geography and methodology in the DSEIS
was held constant from the FEIS in which the Town’s consultant, Bay
Area Economics (BAE), established the analytical protocol for using
PUMS data to estimate school demand. BAE was retained by the Town
to review the DSEIS projection of student generation rates, and for the
FSEIS. BAE recommended updated ratios of school-age children per
housing unit that incorporate additional Census data on grade of
enrollment. The updated ratios are used for the revised Economic and
Fiscal Analysis set forth in Appendix D, and the methodology for the
updated ratios is provided in Appendix F.
Comment 3-31:
The DSEIS fiscal analysis does not state the geography used to generate
school-age children generation rates for the Tuxedo Union Free School
District. Table 3-18 entitled “Estimated Project-Generated Student
DRAFT
3.3-21
June 21, 2010
Population by Phase” gives projections of new school aged children for
the Tuxedo Union Free School District; this table refers back to Table
3-8 of the Analysis, the notes to which state only that: “[t]he school-age
children generation rates presented in the FEIS were based on the 1990
Public Use Microdata Samples (PUMS) data from the U.S. Census
Bureau … [and updated in the DSEIS] with the 2000 Census data…” It
is entirely possible that the geography used was not appropriate since
the Project is a significant departure from the existing land development
patterns in the immediate vicinity of the Project. (Camoin Associates)
Response 3-31:
The geography and methodology are the same as those utilized in the
FEIS, as developed by the Town’s consultant, Bay Area Economics
(BAE). As detailed in the FEIS Appendix G, “Bay Area Economic
Reports,” the geography used to generate school-age children
generation rates was based on the Census-defined New York-Northern
New Jersey-Long Island Consolidated Metropolitan Statistical Area (the
“NYC CMSA”). The PUMAs for this area were extracted, and all
PUMA’s containing all or part of an incorporated city of 100,000 or
more were removed from the analysis, to focus on the more suburban
portions of the CMSA. In addition, BAE was retained by the Town as
an independent consultant to review the DSEIS student generation rates
and the application of PUMS data in the fiscal analysis. For the FSEIS,
BAE recommended updated ratios of school-age children per housing
unit that incorporate additional Census data on grade of enrollment. The
updated ratios are used for the revised Economic and Fiscal Analysis set
forth in Appendix D, and the methodology for the updated ratios is
provided in Appendix F.
Comment 3-32:
We contacted the Orange County Planning Commissioner to determine
what rates the County uses to determine projections of new school aged
children. The Commissioner directed us to a report issued by Rutgers
University’s Center for Urban Policy Research that provides New York
State specific multipliers (see Table below and Exhibit 3 of this Peer
Review) [Please refer to the full letter and attachments contained in
Appendix A]. We compare those rates to the rates provided by the
Analysis in the table below. The rates from the Rutgers University
report are consistently higher than the rates used in the Analysis.
Adjusting upwards the rates of school aged children the Project would
produce by 21 percent (ie. the median value percent difference from the
table above) would have a substantial impact on the results of the
DSEIS analysis, adding approximately $1.9 million of costs to the
projections provided in the Analysis on an annual basis once Phase III is
complete. (Camoin Associates)
June 21, 2010
3.3-22
DRAFT
Response 3-32:
We note that the commenter inappropriately compares different types of
student multipliers – the BAE-derived multipliers are the rates for
public school-age children and the Rutgers multipliers cited in the table
above are for all students. If comparable public school-age children
multipliers are used, the rates are similar. For example, the Rutgers
public student multiplier for a 4-bedroom detached dwelling is 0.87,
compared to the DSEIS rate of 0.869. As detailed in the responses to
Comments 3-30 and 3-31, the methodology utilized to estimate projectgenerated school children was held constant from the FEIS, with DSEIS
review conducted by Bay Area Economics.
Similar to the methodology utilized in the FEIS and the SEIS, the New
York State multipliers developed by Rutgers University are derived
from PUMS data. However, the Rutgers rates are based on the entire
geography of New York State, and therefore capture many areas—
including New York City and upstate New York—that do not accurately
reflect the demographics of anticipated project residents. As mentioned
above, the “Rates from Rutgers University” cited by the commenter in
the table above are for all school-age children, including those attending
private schools. The same Rutgers study provides multipliers for public
school-age children (PSAC) that are lower than the rates cited by the
commenter, and in same cases are lower than the rates used in the FEIS
and revised Economic and Fiscal Analyses (see Appendix D). The
methodology developed by BAE (detailed in Appendix F) is reasonable
and accurate.
Comment 3-33:
DRAFT
The DSEIS fiscal analysis does not provide sufficient information as to
how its authors calculated changes to state aid for the School District. It
appears that the analysis assumed that the School District would receive
a flat allotment of $1,728 per new school pupil. A review of the FEIS
showed that the assumption used there was a flat allotment of $400 per
new school pupil. The Analysis does not explain why the amounts differ
by such a large margin nor does it provide a basis for either assumption.
3.3-23
June 21, 2010
The assumption, however it was drawn or justified, is patently incorrect
and misleading for this project.
The various methods by which aid to school districts is allocated by
New York State are extremely complex. Rather than a single method of
distributing state aid to schools, New York has dozens of categories of
state aid, ranging from foundation aid, building aid, transportation aid,
technology aid, “excess cost” aid (for private school placements, special
education, high cost, BOCES placements, etc.), textbook aid, library
materials aids, and so on and so forth. A number of the categories of aid
do, in fact, correlate directly to changes in the number of pupils enrolled
in a school district as the DSEIS suggests. However, those categories of
aid actually comprise only a small percentage of total state aid to
schools. Below is a table of information provided to us by the TUFSD
Business Office that breaks down state aid by major category for the
2009-2010 school year. Of the aid categories, only the
“Textbooks/Software/Library” aid of $39,556 is provided on a purely
per-pupil basis. Since this is only 4% of the normal state aid the School
District is provided in a typical year, using a per-new-pupil method of
escalating state aid to the School District will not provide an accurate
representation of the fiscal impacts in the Analysis. Perhaps more
importantly, the “General Aid” and “Excess Cost” major categories of
aid, representing 70% of the School District’s state aid revenues, are
highly dependent on factors that were clearly not presented in the
analysis. Furthermore, we believe that the effects of those factors mean
that the new state aid of $741,862 projected in the analysis likely
overstates the actual amount of new state aid that the School District
would receive. (Camoin Associates)
Response 3-33:
June 21, 2010
The 2003 FEIS assumed that TUFSD received a flat grant aid of $400
per student, and additional state aid for transportation, handicapped
students, diagnostic screening, special education, talented and gifted
students, promotion of excellence of teaching, support services, speech
therapy, state aid from Greenwood Lake students, BOCES students,
library materials, and software. In total these state aid revenues equated
to approximately $771 per student in the FEIS. The DSEIS applied the
same methodology as the FEIS in estimating the current per-pupil state
aid revenues, and certain revenue categories have increased since the
3.3-24
DRAFT
FEIS (since 2003, the total amount of state aid received by TUFSD has
increased by approximately 69 percent).
As noted by the commenter, the various methods by which school state
aid are allocated are extremely complex, and difficult to predict.
However, it would be inappropriate to assume that only 4 percent of
state aid funds are tied to enrollment. To illustrate, as shown in Table 32, the amounts of state aid for education allocated to other school
districts in Orange County would suggest that more than 4 percent of
the State Aid calculation is a function of enrollment. It should also be
noted that on a per-pupil basis, TUFSD currently receives the least
amount of state aid in Orange County, and less than half the amount of
the next lowest recipient of state aid (Cornwall Central School District,
with an average of $4,566 per student in state aid).
Table 3-2
State Aid for Education in 2008
Orange County Public School Districts
School District
Middletown School District
Newburgh School District
Port Jervis School District
Washingtonville School District
Cornwall Central School District
Pine Bush School District
Monroe-Woodbury School District
Valley Central School District
Warwick Valley School District
Washingtonville School District
Goshen School District
Highland Falls-Fort Montgomery School District
Minisink Valley School District
Chester Union Free School District
Kiryas Joel Village Union Free School District
Tuxedo School District
Greenwood Lake School District
Florida School District
Source:
6,596
11,961
3,118
4,773
3,320
6,068
7,503
5,082
4,402
4,773
2,900
1,160
4,661
992
217
645
596
852
State Aid for
Education in
2008
Average State Aid
per Enrolled
Student
$67,834,881
$116,866,701
$28,270,585
$29,288,310
$15,158,672
$49,938,617
$43,937,986
$31,540,273
$23,629,741
$29,288,310
$17,008,577
$7,735,915
$36,272,728
$5,702,830
$4,887,038
$1,186,122
$6,181,874
$4,457,146
$10,284
$9,771
$9,067
$6,136
$4,566
$8,230
$5,856
$6,206
$5,368
$6,136
$5,865
$6,669
$7,782
$5,749
$22,521
$1,839
$10,372
$5,231
New York State Office of the Comptroller; Financial Data for Local Governments Database
(accessible via Internet at
http://www.osc.state.ny.us/localgov/datanstat/findata/index_choice.htm); average state aid per
enrolled student calculated by AKRF based on the New York State Office of the Comptroller data.
Comment 3-34:
DRAFT
2007-2008
Estimated
Enrollment
“Foundation Aid” (contained in the “General Aid” line in the table,
above) and the majority of “Excess Cost” aid to school districts are
controlled to a large extent by the “Combined Wealth Ratio” or similar
ratios that compare the related wealth of the school district in question
to various average wealth data in New York State. The Combined
3.3-25
June 21, 2010
Wealth Ratio (and similar state aid ratios) is a combination of: (1)
Property Values – Assessed Valuation in the School District per pupil as
a percentage of the New York State average assessed valuation per
pupil; and (2) Income Values – Adjusted Gross Income (“AGI”) of
School District residents per pupil as a percentage of the New York
State average AGI per pupil.
To determine the amount of Foundation Aid, New York State calculates
the following: Foundation Amount (base amount, with regional
adjustments) per pupil, minus the Expected Local Contribution (based
on the Combined Wealth Ratio or similar wealth-related ratio) per pupil,
times the number of applicable pupils. So, if the local wealth factors
used in calculating the Combined Wealth Ratio of the School District go
up, the amount of the Expected Local Contribution goes up and the
amount of state aid per pupil goes down.
To do a very preliminary evaluation of whether this scenario may result
from the Project, we collected information from proprietary data
sources regarding the approximate AGI of Town residents and the
approximate average value of residential properties in the Town of
Tuxedo. ESRI estimates that average household income in the Town of
Tuxedo in 2009 is $122,966 and the average owner-occupied housing
unit value is $614,727. We compute from Table 3-13 of the DSEIS
analysis that the average market value per unit is approximately
$814,315. This means that the average value of units in the Project will
be approximately 32.5% higher than the average value of current units
in the Town. This would lead us to believe that, if the same holds true
for the School District, the Project may increase the Combined Wealth
Ratio and therefore decrease the per-pupil Foundation Aid. What could
this mean for the School District? We do not have adequate information
on the projected changes to the school district AGI and assessed
valuations and therefore cannot determine how the Project may affect
the Combined Wealth Ratio for the School District. For illustrative
purposes only, we provide the reader with a hypothetical example of
how our calculations would differ from the Analysis’ methodology
assuming a school district whose increase in Combined Wealth Ratio
(or Income Wealth Index) causes the “Expected Minimum Local
Contribution per Pupil” of the School District to rise and the
corresponding amount of Foundation Aid per Pupil amount to fall by
10%.
So we see that, even though the per-pupil Foundation Aid might fall
10%, the overall effect would be to decrease total Foundation Aid by
17.2%. Again, this is a hypothetical case but it illustrates that a
relatively small change in the Combined Wealth Ratio could be
magnified since it affects the per-pupil aid received for all new and
existing pupils. This same exercise for calculating changes to
Foundation Aid should be replicated for changes to Excess Cost aid,
since those calculations are also impacted by some of the same factors
that are used in the Foundation Aid formulas.
In instances where a proposed project would have a de minimus effect
on the overall assessed value per pupil and AGI per pupil, the
June 21, 2010
3.3-26
DRAFT
methodology used in the Analysis would be appropriate. That is, in such
a case, using a flat state-aid-per-pupil might be appropriate since the
project in question would likely not have a material impact on the
calculation of the per-pupil aid amount. However, the Project in
question is one that clearly could have a substantial effect on these
values and it is essential that any fiscal analysis capture this change.
(Camoin Associates)
Response 3-34:
A development that makes a local school district wealthier may affect
(decrease) state aid received by that district. That adjustment is difficult
to predict and calculate, however, for many reasons. Specific allocation
factors may change annually; certain aids may be “held harmless” from
change; the data may be “lagged” (e.g., using three-year-old property
valuation information); and there are other reasons why it is difficult to
project state school aid from year to year, let alone to calculate how
Tuxedo Reserve would affect state school aid over its buildout. To
illustrate this point, in 2000 the Town of Tuxedo had an estimated
median household income of approximately $89,000 (escalated to year
2009 dollars), as compared to $90,000 in 2009 (based on ESRI data; see
Appendix F). This represents only a 1.1 percent real increase in the
median household income since 2000. In 2000, the Town of Tuxedo had
an estimated median housing value of approximately $353,000
(escalated to year 2009 dollars), as compared to $488,194 in 2009
(based on ESRI data, see Appendix F). This represents a 38 percent
increase in the median home value since 2000. Based on the
commenter’s suggested approach, with increasing household incomes
and housing values, one might expect the amount of state school aid to
have decreased since 2000. However, after adjusting for inflation, the
amount of state aid to the Tuxedo School District has increased by
approximately 65 percent since 2000, while the number of students has
increased by approximately 18 percent since 1999. The methodology
for calculating state aid, which was established in the FEIS, was reevaluated by RES and confirmed to be accurate.
Comment 3-35:
The developer has altered the composition of the housing plan (baiting
the Town with a low school children number) and switching to include
substantially more housing for families with children. Every taxpayer
knows the impact of the Tuxedo Union Free School District (TUFSD)
expenses on his or her school taxes—they will rise rather than bringing
us back to a reasonable New York State average. It is well known that
TUFSD’s cost per student is more than twice the NYS average, even the
applicant estimates now that this number will not decrease substantially.
(Pendl)
The financial danger to the town is there is too much multi-family.
Multi-family is likely to sell at lower prices, generate less taxes, likely
to generate more anticipated school children, and condominiums usually
pay lower taxes, like Suffield condos, that pay about a thousand dollars
a year. The present permit appears to be far better for the town. The
town's fiscal life is in your hands. I ask you to proceed with it carefully
and pursue careful advise. (Barnett)
DRAFT
3.3-27
June 21, 2010
Response 3-35:
The Proposed Modifications do not “include substantially more housing
for families with children,” as asserted by the commenter. As described
in Section D, Chapter 3, “Economic and Fiscal Analysis” of the DSEIS,
the total number of bedrooms in non-restricted units (units that could be
occupied by school-aged children) has decreased by 55 units under the
Proposed Modifications, from 2,860 bedrooms authorized in the Project
Approvals to 2,805 bedrooms under the Project with the Proposed
Modifications. The Proposed Modifications would result in fewer
project-generated students than the project analyzed in the FEIS (427
students in the FSEIS analysis as compared to 458 students when
applying the DSEIS’ updated rates to the FEIS program).
Comment 3-36:
Why should we residents accept the risk that loading Phase 1 (which is
3X larger than Phase 2 or 3) with multi-family units will somehow
reduce the number of school children by 1/3? We are told that each
student costs approx. $24,000 per year to educate, which itself is 2 to 4
times the School taxes collected from a TR unit. (Regna)
Response 3-36:
Based on actual population data as established by the U.S. Census
PUMS data (and as verified by many other studies and surveys), multifamily units generate fewer school children and the school generation
rates used in the DSEIS are appropriate to the anticipated development
program. With the average student generation rate at less than 0.5
students per household, the student costs compared to potential property
tax revenue per unit is consistent with the findings of the fiscal impact
analysis. In addition, please see Response 3-35.
Comment 3-37:
The DSEIS fiscal analysis should be reviewed by representatives of the
school district as these costs represent the greatest portion of a Tuxedo
household’s tax bill. (Tim Miller Associates)
Response 3-37:
The economic and fiscal analyses presented in the DSEIS, and over the
long history of project planning with the Town of Tuxedo, are based on
strong fundamentals and have been reviewed and scrutinized by
independent consultants, town reviewers, and the public. In the
preparation of the impact analyses, the SEIS consultants discussed the
overall approach and key variables (such as assessment data, tax rates,
budget line items) with Town and school officials to get their input and
guidance. Specifically, on July 9, 2008, the SEIS consultants met with
Superintendent of Schools Joseph Zanetti and other representative of the
Tuxedo Union Free School District (TUFSD) to discuss assumptions
related to enrollment and projected student populations; existing
capacity; student generation rates; construction costs for expansion; and
inputs and methodology used to estimate marginal cost per student.
Following the meeting, a number of additional phone conversations
were held between the Superintendent, Business Administrator, and the
Applicant’s representative. Superintendent Zanetti was asked to identify
budget line items that would be expected to increase with the
introduction of new students. The TUFSD was then provided
opportunity to comment on the DSEIS. In addition, the Town has
retained independent consultants to review the methodologies and
June 21, 2010
3.3-28
DRAFT
analysis of issues relevant to this SEIS; specifically, the market
valuation and student generation rates.
Comment 3-38:
Table 3-4 calculates the “Estimated Marginal Cost per Student” for the
School District. The table calculates total costs of $16,315,391 for the
School District but then backs out over $700,000 of general
administrative costs (thereby excluding all “General Support” except
the “Central Services” line) prior to calculating the marginal cost per
new pupil. There is no description as to why the authors made this
determination, other than that it is, “[c]onsistent with the methodology
used in the FEIS…” The FEIS document we were able to secure
(“Appendix H: Revised Fiscal Analysis”) simply states that “[t]he
marginal cost per student is based on the variable costs of the district
and therefore does not include General Support expenditures (other than
Central Services) and debt service.” However, a reasonable person
could assume that adding 429 students from the Project to the School
District’s current enrollment of 617 (70% increase) would cause other
costs under “General Support” to rise to some extent. For example,
superintendents of large school districts tend to demand higher salaries
than those of smaller school districts. It may be necessary to expand the
financial arm of the administration to handle increased volume of work.
The presumption of most fiscal analyses is that costs will rise as
population rises and the onus of proof lies on the authors to show why
this might not be the case for General Support items. (Camoin
Associates)
Response 3-38:
The economic and fiscal analyses presented in the DSEIS, and over the
long history of project planning with the Town of Tuxedo, are based on
strong fundamentals and have been reviewed and scrutinized by
independent consultants, town reviewers, and the public. In the
preparation of the impact analyses, the SEIS consultants discussed the
overall approach and key variables (such as line items comprising the
marginal cost per student) with District Superintendent Joseph Zanetti
to get his input and guidance.
With respect to the onus of proof requested by the commenter, in 2008
the TUFSD incurred approximately $1.27 million in operating costs (or
approximately $1,967 per student based on enrollment of 645 students),
and $636,000 in administrative costs (approximately $985 per student).
Of the 14 public school systems in Orange County with enrollment
larger than TUFSD, only 4 of the 14 had per-student operating costs
larger than that of TUFSD, and none of the larger school districts had
larger per-student administrative costs.1 This is likely due to the benefits
of economies of scale, which are not accounted for in the analysis.
Staffing patterns and facility requirements for some services—
particularly in smaller school systems with excess capacity—may be
such that up to a certain point, new growth can cause a decline in the
school’s per capital costs for some services. In the FEIS, a 5 percent
1
From Office of the State Comptroller Web Site:
http://www.osc.state.ny.us/localgov/datanstat/findata/index_choice.htm
DRAFT
3.3-29
June 21, 2010
reduction in the marginal cost per student for efficiencies of scale was
eliminated from the original fiscal analysis. The revised fiscal analysis
in this FSEIS is consistent with the FEIS with regard to not including a
credit for efficiencies of scale resulting in a more conservative analysis
of costs.
Comment 3-39:
On p. 3-8, Table 3-9, the total number of single family units is 890, not
420. (Tim Miller Associates)
Response 3-39:
A revised Table 3-9 (now Table 3-8) in this FSEIS reports the correct
total number of single family units (890 units). This was a typographic
error in reporting the analysis as part of the DSEIS document; it did not
affect the actual analysis or its findings.
Comment 3-40:
On p. 3-8, Table 3-9, why is the value of a 2-bedroom non-restricted
Townhouse unit higher than a 3-bedroom unit? Is this reasonable? (Tim
Miller Associates)
Response 3-40:
As detailed in Response 3-1, the value of all residential products—
including the 3-bedroom non-restricted Townhouse unit—have been
revised in this FSEIS to account for changed market conditions. Please
see the revised values as reported in Table 3-8 (Future Without the
Proposed Modifications: Market and Assessed Values) and Table 3-18
(Proposed Modifications: Market and Assessed Values 2009) of this
FSEIS.
Comment 3-41:
On p. 3-8, Table 3-9, the assessed values for the non-restricted
multifamily housing by type are incorrect, although the total assessed
value, i.e., $24,277,785, is correct. (Tim Miller Associates)
Response 3-41:
assessed values for the non-restricted multifamily housing. This was a
typographic error in reporting the analysis as part of the DSEIS
document; it did not affect the actual analysis or its findings.
Comment 3-42:
On p. 3-8, Table 3-9, the total square feet of retail is 3,000 square feet,
not 30,000 square feet. The assessed value is correct. (Tim Miller
Associates)
Response 3-42:
square footage of retail in the future without the Proposed Modifications
(3,000 square feet). This was a typographic error in reporting the
analysis as part of the DSEIS document; it did not affect the actual
analysis or its findings.
Comment 3-43:
On p. 3-8, Table 3-9, the value for the total multifamily component
(non-restricted and restricted) should be $24,277,785, not $18,578,966.
(Tim Miller Associates)
Response 3-43:
value for the total multifamily component (non-restricted and
restricted). The value is different from that suggested by the commenter
due to the revised market values (detailed in Response 3-1). This was a
June 21, 2010
3.3-30
DRAFT
typographic error in reporting the analysis as part of the DSEIS
document; it did not affect the actual analysis or its findings.
Comment 3-44:
On p. 3-8, Table 3-9, the total assessed value for the Future without the
Proposed Modification is correct, i.e., $185,028,343. (Tim Miller
Associates)
Response 3-44:
Comment noted. Please note that this value has changed in the FSEIS to
reflect revised market values (detailed in Response 3-1).
Comment 3-45:
With regard to Table 3-10, the analysis indicates that the marginal cost
per student is $21,849 (not including debt service). Multiplying this
marginal cost by 289 students yields an annual cost of $6,314,361, not
$6,311,969. The estimated annual expenditures for 466 students would
be $10,181,634, not $10,172,176. These differences are relatively
minor. The future without the project modifications would result in a
net positive fiscal impact to the school district at buildout using the
assumptions presented in the DSEIS. (Tim Miller Associates)
We estimate that the total number of school-age children to be
generated by the proposed project is 428 children, or one less student
than the 429 students reported in the DSEIS. This difference is due to
rounding. (Tim Miller Associates)
Response 3-45:
The discrepancies noted by the commenter are due to a combination of
rounding error and the incorrect application of a school-age-childrenper-housing-unit multiplier of 0.79 for non-restricted two-bedroom
condominiums, rather than the 0.73 multiplier reported in Table 3-7 of
the DSEIS. The result was an overestimate in the DSEIS of the
projected number of school-aged children in the future without the
Proposed Modifications by one (1) school-aged child; this resulted in a
slight over-estimate of total school expenditures in the future without
the Proposed Modifications, and did not affect the findings of the
analysis. The FSEIS Economic and Fiscal Analysis in Appendix D
contains revised school-age children projections based on Bay Area
Economics’ review of the DSEIS multipliers. The methodology for the
updated ratios is provided in Appendix F. The revised estimates and
resulting marginal costs are reported in Table 3-24 of the FSEIS.
Comment 3-46:
We would like to note that the previous Town Board expressed
concerns with regard to the total number of 3-bedroom dwellings that
were proposed in 2003. The 2009 modification proposed to increase the
total number of 3-bedroom dwellings by 162 dwellings. The primary
concern is that as a result of the size of the dwellings, the 3-bedroom
dwellings could actually be used as 4-bedroom dwellings. This in turn
would result in a greater number of school-age children than is
estimated for in the fiscal analysis. The FSEIS needs to discuss options
with regard to how the Town can ensure that the 3-bedroom dwellings
remain 3-bedroom dwellings. (Tim Miller Associates)
DRAFT
3.3-31
June 21, 2010
The reduction in the total number of students compared with the 2003
condition is likely a function of the increase in 3-bedroom dwellings
proposed for the development. The ability of the Town to effectively
and realistically control the number of bedrooms in any dwelling must
be considered and evaluated. It is recommended that the FSEIS include
an analysis to determine how many 3-bedroom dwellings could be used
as 4-bedroom dwellings without resulting in a net fiscal deficit to the
school district. (Tim Miller Associates)
Response 3-46:
The FSEIS economic and fiscal analysis evaluates the potential impacts
of the Proposed Modifications, which provide for a range of housing
types, bedrooms per unit, and unit sizes. The additional analysis
recommended by the commenter is outside the scope of the FSEIS
analysis, as it would require speculation about purchasers’ use of homes
that are marketed and sold as 3-bedroom dwelling units. The fiscal
analyses assume that all who are bound by the Project Approvals, as
they may be amended by the Town Board, will act lawfully and in
accordance with the conditions set forth in the Project Approvals.
Comment 3-47:
The DSEIS includes a July 2008 market analysis conducted by Robert
Charles Lesser & Co. Based on a review of the market values for the
housing types presented in Table 3-9 and Table 3-13, we note that there
does not appear to be consistency in the values used in the DSEIS tables
and the values listed on page 4 of the Lesser report. The Lesser report
provides a minimum, maximum, and average value for the housing
types. In general, the values used in Tables 3-9 and 3-13 are either set at
the average unit price or higher. In some instances, the value for a
housing type is set above the maximum unit price. For example, 158
non-restricted cottage units are proposed. The maximum unit price
noted in the Lesser report is $900,000. The fiscal analysis uses a market
value of $946,400. If the market values of the housing units are
overestimated, the property tax revenues will be too optimistic. (Tim
Miller Associates)
We also note that the housing types that have been assigned values
higher than the maximum unit price noted in the Lesser report are the
smaller-sized cottage and carriage units. We are concerned that smaller
units on smaller lots may not hold the proposed price points when
compared to dwellings on larger lots. (Tim Miller Associates)
Response 3-47:
June 21, 2010
As detailed in the Response 3-1, a revised market analysis has been
provided by Robert Charles Lesser, & Co., and revised unit prices are
used in the economic and fiscal analysis of this FSEIS. This FSEIS
applies the average unit prices identified by Robert Charles Lesser &
Co., with the exception of condominium units, which apply the full
range of price points to distinguish pricing for 1-bedroom units (FSEIS
analysis assumes minimum price), 2-bedroom units (FSEIS analysis
assumes average price), and 3-bedroom units (FSEIS analysis assumes
maximum price). As shown in the appended Chapter 3, “Economic and
Fiscal Analysis,” in Appendix D, the revised values do not alter the
finding that the Proposed Modifications would not have the potential to
3.3-32
DRAFT
generate any new significant adverse fiscal impacts not already
identified in the FEIS.
Comment 3-48:
The Charles Lesser study was conducted in July 2008. According to the
Orange County Board of Realtors website, the average selling price for
a home in the County decreased by 14 percent. The median housing
price decreased by 10 percent. Yet, many of the 2009 market values
presented in the fiscal analysis exceed the maximum prices presented in
the Lesser report.
In the absence of a rationale for the variations in market values reported
in the Lesser report and those used in the DSEIS, it is our opinion that
the market values used in the fiscal analysis will overestimate the
property tax revenues to be generated by this project. If there are
reasons for increasing the market values in the report, e.g., larger lots,
larger dwellings, these reasons should be presented in the FSEIS.
Otherwise, we believe a more reasonable evaluation would use average
unit prices discounted for the 2009 market conditions. (Tim Miller
Associates)
Response 3-48:
Please see Responses 3-1 and 3-47.
Comment 3-49:
We conducted two separate analyses to get a sense of the "order of
magnitude" change in the property tax revenues that would result from
the following: Scenario I - Use of the average unit values in the Charles
Lesser report; and Scenario 2 - Use of the average unit values in the
Charles Lesser report, discounted by 15% to account for the decrease in
the Orange County housing market values from 2008 to 2009.
For purposes of this "order of magnitude" analysis, we used the same
market values for the nonresidential component and did not revise the
market values for the multifamily component. The results were as
follows: Scenario I - The school district property tax revenues generated
would be $10,533,530 at buildout. Scenario 2 - The school district
property tax revenues would be $8,988,547 at buildout. [Please refer to
the summary table submitted by the commenter in the full letter, and
reproduced in Appendix B].
As is evident from the table, if the average market values identified in
the Lesser report are used, a reduction of approximately $559,876
annually in property tax revenues (where a new high school is
constructed) would result. Discounting the average value by an
additional 15 percent results in an almost "break-even" scenario. At the
bottom of the table, we have estimated the additional number of
schoolage children that could be generated by the Tuxedo Reserve
project, the cost of which would be covered by excess net revenues to
the school district.
As is evident, the assumptions used for market values will have a
significant effect on whether the project will generate net revenues or
costs to the school district. This will also hold true for the estimates of
Town government revenues and costs. (Tim Miller Associates)
DRAFT
3.3-33
June 21, 2010
Response 3-49:
The comment notes the sensitivity of the overall fiscal impact study to
market values. As noted in Response 3-1, based on the significant
changes to local and national real estate markets, the values in DSEIS
have been revised, and these revised values were used in the FSEIS
analysis (as further detailed in Response 3-47). Similar to the findings
of the DSEIS, the revised analysis in the FSEIS shows that projectgenerated revenues are expected to be greater than project-generated
costs.
Comment 3-50:
Based on a review of Table 3-13, with regard to the total assessed value
of the non-restricted single family dwellings, we get a value of
$129,249,012, not $129,469,923. The totals for the 3-bedroom cottages
and the 3 bedroom cottages (alley) appear to be incorrect. The total,
with the age-restricted single family, is $137,167,914. (Tim Miller
Associates)
Based on a review of Table 3-13, the total value for the residential
component is $173,478,741, using revised values for the non-restricted
single family component. We estimate that the total project value would
be $177,210,953, not the $177,431,865 presented in the FSEIS. (Tim
Miller Associates)
Response 3-50:
A revised Table 3-13 (now Table 3-18) in this FSEIS reports a revised
total assessed value of the non-restricted single family dwellings, and
total project value. The revised values are different from those
suggested by the commenter due to the revised market values in the
FSEIS (as detailed in response to Comment 3-1). The incorrectly
reported total assessed value in the DSEIS was within two-tenths of one
percent of the correct total assessed value, and therefore did not
substantively affect the findings of the DSEIS analysis.
Comment 3-51:
On Table 3-16 of the DSEIS fiscal analysis, line “Non-prop Tax Items”
of the “General O/V” fund is listed as $340,000 for 2009. In reviewing
the Town’s budget for 2009, we found two budget items (B1120 and
B1170) that correspond to $310,000 in sales tax distribution by Orange
County and franchise fees of $30,000. The analysis takes the entire
amount of $340,000 in revenues and escalates it through each of the
phases by the proportional increase in population. This methodology
would only be appropriate for the franchise fees, which represent less
than 10% of the amount of the line item. The remaining 90% is sales tax
revenue distribution by Orange County. We spoke with the Orange
County Finance Commissioner regarding the sales tax distribution.
While the distribution formula does take into consideration population,
it is only updated following the applicable decennial US census
following the change in population. Therefore, there will be a lengthy
delay between the increase in Town population (and thus increase in
Town costs) and the proportional increase in County sales tax
distribution to the Town. In concrete terms, the Analysis states that,
upon completion of Phase 1, the Town will enjoy an increase of
$181,401 in new sales tax distributions from the County resulting from
the increase in population. However, we observe from Table 1-4 of the
June 21, 2010
3.3-34
DRAFT
DSEIS that Phase 1 will be complete in 2017. The Town will not see
any increase in sales tax revenue distribution in 2017. In fact, the Town
will not see any change to the distribution formula until 2021, well into
Phase 2 of the Project and fully 4 years after the completion of Phase 1.
Likewise, the Analysis states that the Town will have a cumulative total
of $296,519 in sales tax revenue from Orange County at the completion
of Phase 3 in July 2022. However, this incremental increase in sales tax
revenue will not be achieved until 2031, meaning that the Town will
shoulder 9 years of increased expenses related to the new residents of
Phase 3 before the sales tax distribution increase occurs as a result of
the 2030 US census and is formalized into the 2031 calculations by
Orange County. (Camoin Associates)
Response 3-51:
The DSEIS applied the methodological approach used in the FEIS,
which assumed that non-property tax revenues will increase in
proportion to increases in population, housing units, roads, or related
factors. The purpose of the DSEIS is to evaluate whether the Proposed
Modifications result in any significant adverse impacts not already
identified in the FEIS. The Proposed Modifications do not alter the
projected number of residents, and therefore, the methodology used in
the FEIS to estimate county sales tax distribution was maintained.
While the commenter may disagree with the methodological approach
used in the FEIS, the FEIS was reviewed and approved by the Town
Board and the Town’s consultants, and absent a change in
circumstances relating to sales tax distribution, maintaining the same
analytical approach is appropriate for the revised fiscal analysis. The
Town’s General Finance Group, in their review, commented that the
methodology regarding non-property tax revenue was adequate.
Comment 3-52:
On the “State Aid” line of Table 3-16 under the “General O/V” fund,
the Analysis reports an amount of $15,000 in the 2009 Town budget.
This corresponds to Line B3001 of the Town budget as “State Aid –
State Revenue Sharing.” The Analysis assumes an increase of $13,082
by Phase 3 resulting from an increase in population. However, this
assumption is not correct. The following is an excerpt from a report
from the Office of the Comptroller regarding state revenue sharing:
“General Purpose Local Government Aid (GPLGA) is the largest
unrestricted aid category available to municipalities in the State,
accounting for between 74 and 92 percent of allocations over the last 17
years. GPLGA was originally established in 1970 to distribute aid to all
classes of government based on per capita amounts prescribed in statute.
However, statutory aid formulas have not been utilized for decades and
counties have not received GPLGA since 1988-89. Cities, towns and
villages currently receive GPLGA amounts which have been frozen at
2000-01 levels totaling $561.6 million.” The Town has clearly
recognized this reality and has likewise frozen its estimate of state
revenue sharing at $15,000 for all budget years we reviewed (2008,
2009 and 2010). It is therefore unlikely that any of the projected
increase of $13,082 will materialize for the Town. (Camoin Associates)
DRAFT
3.3-35
June 21, 2010
Response 3-52:
The “State Aid” line item under the General O/V has been revised to
zero in this FSEIS . A revised Economic and Fiscal Analysis is included
as Appendix D in this FSEIS.
Comment 3-53:
On the “Revenues from Other Govt” line of Table 3-16 under “Highway
Fund/Townwide,” the DSEIS fiscal analysis reports an amount of
$53,000 for the Town in 2009. This corresponds to line DA2302 of the
Town’s budget. The analysis projects that the Project will result in an
additional $46,222 in this line. However, the entire amount of $53,000
in the 2009 Town budget is for “Snow Removal – Other Governments”.
These are reimbursements by Orange County (and/or New York State)
for snow removal by the Town on non-Town roads. Since the Project
will not result in new snow plowing by the Town on County/State
roads, there will be no change in the line “Revenues from Other Govt”
on Table 3-16. (Camoin Associates)
Response 3-53:
This amount corresponds to all intergovernmental charges, not just
DA2302. The commenter is correct with regard to snow removal, and
the analysis in Chapter 3, “Economic and Fiscal Analysis” within
Appendix D of this FSEIS does not assume any revenues from other
governments under the Highway Fund/Townwide. The commenter is
referred to the revised Economic and Fiscal Analysis in Appendix D of
this FSEIS.
Comment 3-54:
In Table 3-19, we get a slightly different estimate of total expenditures
using $21,849 as the marginal cost per student. For 429 students, the
cost would be $9,373,221, not $9,372,256 - this difference may be due
to rounding. (Tim Miller Associates)
In Table 3-19, with a revised market value of $177,210,953, and using a
tax rate of $62.60 per 1,000 assessed valuation, the total school district
tax revenues at buildout would be $11,093,406 for the project - this
compares with $11,106,702 noted in Table 3-19. The DSEIS may
overestimate the revenue by $13,296 at buildout. The project would still
result in a net positive fiscal impact. (Tim Miller Associates)
Response 3-54:
June 21, 2010
As described in Response 3-45, the discrepancies noted by the
commenter are due to a combination of rounding error and the incorrect
application of a school-age-children-per-housing-unit multiplier of 0.79
for non-restricted two-bedroom condominiums, rather than the 0.73
multiplier reported in Table 3-7 of the DSEIS. The result was an
overestimate in the DSEIS of the projected number of school-aged
children in the future without the Proposed Modifications by one (1)
school-aged child; this resulted in a slight over-estimate of total school
expenditures in the future with the Proposed Modifications, and did not
affect the findings of the analysis. The FSEIS Economic and Fiscal
Analysis in Appendix D contains revised school-age children
projections based on Bay Area Economics’ review of the DSEIS
multipliers. The methodology for the updated ratios is provided in
Appendix F. The revised estimates and resulting marginal costs are
reported in Table 3-24 of the FSEIS.
3.3-36
DRAFT
Comment 3-55:
On DSEIS Table 3-19, the DSEIS fiscal analysis implies that the
Developer’s contribution of the Track and Field Complex (the
“Complex”) valued at $4.95 million would benefit the School District in
the amount of $412,500 per year. The explanation for this allocation can
be found in the notes associated with Table 3-10 on page 3-9, stating
that the value was divided by the 12-year buildout. However, the value
of the Developer’s contribution of the Complex to the School District is
what the Complex would otherwise cost the School District to build on
its own. If the School District built the Complex, it would likely raise
such funds through a bond issuance. Such bonds are typically tax
exempt (ie. below market interest rate) with a term of 30 years. If we
assume a bond rate of 4.5%, the annual cost to the School District
would be $303,888, not the $412,500 reported, for a difference of
$108,611. (Camoin Associates)
Response 3-55:
As in methodology used in the FEIS, The value of the Track and Field
Complex being contributed to the School District by the Applicant does
not impact the Net Fiscal Impact estimate because it is shown below the
estimate of Net Fiscal impact. It is being shown this way to demonstrate
the additional value to applicant is willing to provide the town.
Since the contribution is being provided up-front, its value is being
shown on a 12-year basis in order to show the full estimated impact of
the contribution by the end of the final phase of the Project. Assuming
tax-exempt financing for the 12-year period, a $4.95 million bond
would require annual payments of $542,847 as compared to the
$412,500 used in the fiscal analysis. If it were shown on an annual basis
as debt service on a 30-year bond, the total value of the contribution to
the School District would not be accounted for. The Proposed
Modifications do not alter the applicant’s obligations with respect to the
Track and Field Complex.
Comment 3-56:
The DSEIS fiscal analysis uses a 12-year time period to value the
contribution by the Developer of a $2 million grant to the Town for
economic development in the Town hamlet. The Analysis calculates the
benefit to be $167,000 per year. We calculate, [assuming tax exempt
bond financing], that the benefit would be $122,783 per year, for a
difference of $44,216. In addition, from a methodological point of view,
it is questionable to include any amount as revenue to the Town,
presumably available to offset costs incurred by the Town as a result of
the Project. If we understand the Developer’s intention correctly, the $2
million grant is for the Town to distribute to business owners in the
hamlet to expand and create jobs. As such, the Town is essentially just
the fiduciary agent of the grant moneys and not the “owner” of the
funds. For example, if the Project created a deficit in one of the Town’s
funds, the Town could not use the $2 million to offset such a deficit.
(Camoin Associates)
Response 3-56:
At an estimated tax exempt interest rate of 4.5%, a $2 million bond
would provide approximately $219,332 in annual payments over 12
years compared to the more conservatively estimated payments of
$167,000 used in this FSEIS, which simply divides the bond amount by
DRAFT
3.3-37
June 21, 2010
12 years and does not apply any interest. This increased benefit of over
$52,000 per year was not accounted for in the fiscal analysis.
The Tuxedo Hamlet Revitalization Fund’s purposes are set forth in the
Special Permit. A direct grant fund of $2 million is to be used for
infrastructure and physical beautification improvements. An additional
$4 million in revolving loan funds are to be used for commercially
viable new construction, rehabilitation, and leasehold improvement
projects in the hamlet. The benefit and value of the revolving loan fund
has been excluded from the fiscal analysis. The DSEIS applied the
methodological approach used in the approved FEIS. The $2 million
grant to the Town for economic development in the Town hamlet is a
condition of the Special Permit that would be maintained in the future
with or without the Proposed Modifications. Therefore, it is not the
subject of the fiscal analysis in this DSEIS, which examines whether the
Proposed Modifications would have the potential to generate any new
significant adverse fiscal impacts not already identified in the FEIS.
Nevertheless, the grant money is revenue to the Town that they
otherwise would not benefit from, and therefore is an appropriate
element in evaluating the fiscal impacts of the Project with the Proposed
Modifications.
Comment 3-57:
The numbers will never be accurate. In North Haledon, we were told
there were only going to get 20 kids, we got 60. That triggered a $30
million referendum in our school. Our schools were old to begin with,
but we were ok. Once these additional children came, they pushed our
class size past 25 which triggered the need for more square footage.
With the recession we have 25 to 30 people coming in asking us to
lower their taxes, taking us to court and winning and now they are
paying less taxes because their homes are worthless. The shoulder of
this burden is on all the other taxpayers. (R. George)
Response 3-57:
Comment 3-58:
The amended permit substantially increases multi-family density. The
prior permit had an absolute cap of 305 multi-family units. That number
has been increased to 413, and 390 of those units are scheduled for
phase one. In this regard the town should heed the warnings that they
heard from the mayor of North Haledon at the last public meeting. The
actual number of school children in North Haledon far exceeded the
projected number, requiring extensive new school construction. The
SDEIS projects that 1,195 units will generate 429 new students, but that
is from a twenty county comparison, which includes cities like Newark.
The Appendix G of the FEIS proposes another reasonable, more
applicable, scenario. It looks at four counties, Orange, Rockland,
Bergen and Passaic, and that analysis projects new students of 493 plus.
I ask the council; which scenario is more likely? The council needs to
ask; how many students are too many from a fiscal perspective.
(Barnett)
June 21, 2010
3.3-38
DRAFT
Response 3-58:
Please see the Responses 3-35 and 3-61. Note that the statistical area on
which the multipliers were based does not include central cities such as
Newark.
Comment 3-59:
One of the primary expenses associated with the development will be
education of children living there. This number will be significantly
based upon two factors; the first of these are the numbers, if any, of age
restricted homes in the development, and the second is the mix of
homes actually built. With respect to the first it has been clearly
demonstrated that the demand for this type of housing is limited at best,
and we can allow, we can reasonably assume that at some point the
developer will have to come back to the town to request a waiver to
allow them to remove the restriction. It was also mentioned that the
above developer is also requesting flexibility with respect to the final
mix of housing, which could result in a significant increase in the
number of children in the development. (Pendl/Seeman)
Response 3-59:
Regarding demand for housing, please see Responses 3-1, 3-3, and 3-8.
Regarding the “flexibility” the developer is stated to have requested,
please refer to Response 2-2 in Chapter 3.2, “Comments and Responses,
Land Use, Zoning, and Public Policy.”
Comment 3-60:
In describing the conclusion represented in Table 23, the SDEIS states,
as shown in Table 23, regardless of impairment in home values of up to
20 percent, with a new high school and 25 percent without a new high
school, there would be a positive fiscal benefit to the town. However the
table does not consider the fiscal impact to the town at all, since only
the school district is considered in the analysis. This is confirmed by the
projected $2,277,320 surplus at the top of the table. The fiscal impact on
the town, which is already projected to be negative for the general fund
and fire district, would likely become negative in all tax jurisdictions. In
addition actual sales records in the vicinity suggest that the projected
sales prices already were too high, even for the previously hot real
estate market. It is more likely that the table should consider value
reduction on the order of 30 to 35 percent. Even this reduction would
have four bedroom estate units on one third of an acre selling for more
than a recent $950,000 sale of a seven bedroom mansion on 1.5 acres in
Tuxedo Park. The questionable figures and analysis in this instance, and
many others articulated earlier, clearly require that the town board hire
reputable, qualified, outside firms, to complete an independent in-depth
fiscal analysis of the entire project in order to protect the integrity of the
Town of Tuxedo, and all its current and future residents. (Cadavero)
Response 3-60:
Regarding the fiscal impact analysis, please see Response 3-15.
Regarding market valuations in the DSEIS, please see Response 3-1.
Comment 3-61:
(Page 3-6, School Population) As stated in the DSEIS, the student
population rates are based upon a study contained in Appendix G of the
FEIS, as modified by the results of the 2000 Census. An analysis of the
current study therefore requires an analysis of the methodology
contained in the original report, prepared in 2002 by Bay Area
DRAFT
3.3-39
June 21, 2010
Economics (BAE) of Berkeley, California. Using the 1990 Census,
BAE conducted an analysis to determine the number of school children
which might be expected to be generated per household in the proposed
development. The analysis was based on a 5% sample of survey
responses contained in the Public Use Microdata Samples (PUMS).
These responses are grouped under defined geographic areas called
Public Use Microdata Areas (PUMAs) of at least 100,000 in population.
BAE took data from 42 PUMAs in 20 counties in New York, New
Jersey, and Connecticut to come up with student generation rates for
different housing types and bedroom counts. However, some of the
samples chosen are questionable in whether they would really reflect
what could be expected to happen in an affluent housing community in
Tuxedo. Some of the PUMAs chosen include the cities of Newark and
Paterson, as well as Ocean County, NJ –without using most of the
intervening counties. BAE itself even questioned the applicability of
their own methodology, noting: "The proposed project has been
described as being unique in character, unlike any new housing product
available in the New York metropolitan region. If this is the case, using
overall student generation rates based on the PUMS data from all
households of selected New York City suburbs may not accurately
reflect the kinds of households that will move into these units. Of
particular concern are the very large two-bedroom units; this product
type seems to be unusual, and may attract buyers unlike those in
existing two-bedroom units, especially if there is the potential in these
large units to create additional bedrooms by remodeling or using
existing rooms otherwise deSignated (e.g., dens or family rooms)."
They further note other potential deficiencies: "…the 20-county area
may include a number of submarkets with different value ranges for
similar products. For instance, the range of house values in the outlying
counties may vary significantly from those nearer to New York City for
similar types of housing, further confounding any benchmarking of
student generation rates to certain current value ranges. Also, the
highest house value category available in the PUMS data set is
$400,000+, and three product types in the Development are priced in
different ranges above that point; the broad range of the PUMS house
price category may not accurately reflect differences in student
generation rates within the category...To resolve these issues, BAE
expressed its belief that "an alternative analysis based on 'on the ground'
data including nearby and/or comparable projects would be
appropriate," but that such an analysis was beyond their scope and
capacity to complete, and should be performed by other qualified
parties. In an attempt to find the most accurate predictive multipliers,
BAE considered six scenarios:
1) All 20 counties, using only newest housing units, with no regard to
value.
2) Same, but including units of any age.
3) All 20 counties, using only newest housing units with highest values.
4) Same as Scenario 3, but assumes large 2-bedroom cottages act as 3bedroom units.
June 21, 2010
3.3-40
DRAFT
5) Same as Scenario 3, but only includes Orange, Rockland, Bergen,
Passaic Counties.
5a) Same, but assumes large 2-bedroom cottages act as 3-bedroom
units.
6) Same as Scenario 5, but with no regard to age.
The total estimates of public school students under these scenarios
ranged widely from 330 to 493. BAE settled on Scenario 1, which
projected a public school student population of 427. Yet, in looking at
the various scenarios, it would seem that Scenario 5, which considers
demographics from recently built units in only Orange County, plus the
most nearby three counties, eliminating places like the City of Newark
and Ocean County, NJ, would generate results that would most closely
resemble what might be expected in Tuxedo. In fact, BAE found that
limiting the sample data set to the immediate four counties resulted in a
higher student generation rate than did using data from the 20 counties.
Scenario 5 resulted in a projected student population of 476, 49 more
(11.4%) than the 427 noted in the FEIS, and Scenario 5A, which has
strong merit, resulted in a projected student population of 493, an
additional 66 students (15.5%). Potentially even more telling is
Attachment C in the BAE study. According to this attachment, the
student population (defined as the population between 5 and 17 years
old) made up 18.2% of the total population in the 20-county area, and
18.4 % of the population in the 4-county area. In just Orange County,
however, the student population comprised a much higher 21.4% of the
total population. In light of this, while no further calculations were
provided by BAE, it can be likely expected that if data sources from
only Orange County were considered, the projected number of students
per household would be significantly increased. In the analysis provided
in the DSEIS, using more recent Census data and the revised plan, the
projected number of students increased is now 429. Applying this
percentage difference between Scenario 1 and Scenario 5 in the FEIS,
the Scenario 5 and 5A results under the current plan would yield
projected student populations in the neighborhood of approximately 478
and 495, respectively. Again, these numbers would likely increase if the
cited data sources from just Orange County were utilized in generating
the predictive multipliers. (Gross 12/31/09)
Response 3-61:
DRAFT
Bay Area Economics’ 2002 analysis of student generation factors for
Tuxedo Reserve was thorough in its consideration of multiple
methodologies, geographies, and data sources. The analysis considered
both the strengths and weaknesses of the various alternative approaches
to projecting student population, and determined that Scenario 1 was the
most appropriate methodological approach for the FEIS. This approach
also was used for the DSEIS. As detailed in Response 3-31, the
geography used to generate school-age children generation rates was
based on the Census-defined New York-Northern New Jersey-Long
Island Consolidated Metropolitan Statistical Area (the “NYC CMSA”).
The PUMAs for this area were extracted, and all PUMA’s containing all
or part of an incorporated city of 100,000 or more were removed from
the analysis, to focus on the more suburban portions of the CMSA.
3.3-41
June 21, 2010
With respect to Scenario 5, which is recommended by the commenter,
Bay Area Economics found that the scenario is limited in reliability by
small sample sizes for many unit types.
Comment 3-62:
The proposed amendment will invariably add a much higher number of
residents than initially approved, especially children. This will cause
financial stress on the school system because I cannot see how the tax
revenue generated from the proposed amendments comes anywhere
close to financing the increased burdens on the school system. This will
invariably lead to a higher tax bill on the entire community, which is
already very high. (Zgonena)
Response 3-62:
Comment 3-63:
I am extremely concerned about the cost burden imposed on the Town
of Tuxedo by maintaining additional infrastructure created by Tuxedo
Reserve. In particular, what is the plan to pay for additional road
maintenance, snow plowing, additional police, etc? What feasibility
studies have been done? And how current are they? (Zgonena)
Response 3-63:
Chapter 3, “Economic and Fiscal Analysis” of the DSEIS evaluated the
potential fiscal impacts of the Proposed Modifications on municipal
services including police, fire, and highway services. In the preparation
of the impact analyses, the SEIS consultants discussed the overall
approach and key variables with Town officials to obtain their input and
guidance. The revised Economic and Fiscal Analysis addressing the
matters referenced in the comment is set forth in Appendix D of this
FSEIS.
Comment 3-64:
We are writing to voice our disapproval of any proposed changes to the
Tuxedo Reserve project. Since 2004 economic conditions have
changed. There is no reason to believe that the Related Co project
escaped that downturn. However, it is not in the best interest of our
town to relieve their financial pain or assume their risk. We doubted the
Tuxedo Reserve plan in the first place - their projected numbers,
particularly of schoolchildren, was laughable. In view of the current real
estate market and tight mortgage environment, their million dollar plus
home sales projections seem totally irresponsible. The proposed
amendments would significantly alter the unit mix of the project - and
certainly the possibility that those units will now be 'attached' units, sell
for less, and contain school-age children. (Hunt)
Response 3-64:
Regarding changed economic conditions, please see Response 3-1.
Regarding projected school children, please see Response 3-35.
Comment 3-65:
And we also, as stated previously by the tax attorney, we certainly need
to understand how this increase in multi-family housing, which will
bring in less tax revenue and more school children, will fiscally impact
Tuxedo. (Cavere)
June 21, 2010
3.3-42
DRAFT
Response 3-65:
Chapter 3, “Economic and Fiscal Analysis” in the DSEIS assesses how
the Proposed Modifications will fiscally impact Tuxedo. Please see
Response 3-35.
ADDITIONAL RETAIL
Comment 3-66:
The additional commercial space will further detract from the hamlet,
diminishing the critical core of Tuxedo just at a time when we need to
be strengthening this critical amenity and tax base. (Colwell)
Thirty thousand square feet of new space is alarming when we can’t
even utilize our available space (David)
The original plan as proposed in 2004 was focused to revitalize our
downtown. This second plan, by increasing the commercial space from
3,000 to over 30,000 square feet, would basically give us a second
downtown between Tuxedo and Sloatsburg. We cannot fill real estate
now including Duck Cedar Inn and our own Town square. How exactly
do they propose to fill 30,000 square feet of real estate? (Caverre)
The revised permit is seeking a 10 fold increase in retail space when the
previous Town Board made their revitalization of downTown Tuxedo a
cornerstone of their approval, denying the applicant’s original request
for a large amount of retail space. We don’t have a critical mass of
people to fill the hamlet’s shops along Route 17, and it’s already
watered down by Duck Cedar and various other places. We need to
focus on revitalization and it’s a terrible idea to pull retail space up into
Tuxedo Reserve (McQuilkin)
In 2004 we did limit our approval to retail of 3,000 square feet in the
Reserve, and we did this to protect the businesses in the hamlet, and I
hope that there is an economic impact study done of what that might do
to the businesses in the hamlet if that is increased to 30,000 square feet.
(McCathern)
Response 3-66:
The incremental increase in retail or commercial development of up to
30,000 square feet is intended to enhance the character and livability of
Tuxedo Reserve, as well as establish a viable mixed-use center for the
Project. The modest additional commercial space also will provide
additional tax revenue to the Town as a benefit to the taxpayers. Please
refer to Response to Comment 3-17.
Comment 3-67:
Why again are we called upon to accommodate the risk that either the
developer or the H.O.A. will be able to manage 130,000 square feet of
stores, library, jitney garage, welcome center, club house, pool, post
office, business center etc. According to AKRF consultants, this is a
60,000 square foot increase over the original plan, that's 1.3 football
fields of additional space to maintain and manage. Who steps in if these
properties deteriorate or the enterprises fail? (Regna)
Article XXII Tuxedo Reserve Homeowners Association list of
responsibilities includes "(1) owning and managing lands and facilities
owned in common by Tuxedo Reserve residents (including the jitney
service) (2) instituting a permit process for the trail system and
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3.3-43
June 21, 2010
(3) ensuring continued compliance with the Project’s guidelines and
performance standards." In addition they will have to maintain roads
and that retention basin. I would hope that all these have been factored
into the estimate sale price of the houses. The question is what
assurance will Tuxedo have that these will indeed be made legal
obligations of the homeowners? The developer of the offering plan at
Pierson Lakes has amended the plan unilaterally. Also what will happen
if the homeowners association cannot afford to fulfill its obligations?
Again with Pierson Lakes, the developer has stiffed the HOA to the tune
of one million dollars. What protection will be provided for Tuxedo
taxpayers in this situation? (Wooters)
Response 3-67:
Please refer to Response 3-12 and similar comments and responses in
Appendix C. The HOA’s formation will be approved by the New York
State Attorney General, and will be reviewed by the Town Board and
Town Attorney under the Special Permit. In order for the HOA to be
approved, the Applicant will be required to prepare a budget for all
anticipated HOA expenditures. The HOA will be required to assess all
property owners on a monthly basis to address all expenses. In addition,
back-up special districts for water, lighting, stormwater, and refuse will
be created in case the HOA fails to fulfill its obligations. To fund such
back-up district(s), the Town would collect a special assessment tax
from property owners within the special district.
Comment 3-68:
I'm speaking on behalf of the Chamber of Commerce this evening. At
its regular monthly meeting on November 6, the business members
present at that meeting voted unanimously to support the expansion of
the commercial area in the Tuxedo Reserve Development, from three
thousand square feet to thirty thousand square feet, as proposed in the
Special Permit amendment. There was a suggestion by members present
that the resolution should be amended to support expansion to fifty
thousand or even a hundred thousand square feet, but as that is not in
the proposal we left it at thirty thousand. (Mottola)
Response 3-68:
Comment noted. The comment lends further support to the retail market
analysis prepared for the Applicant and confirms that the increased
retail called for in the Proposed Modifications would not adversely
affect the extant retail businesses in the Town.
Comment 3-69:
The chamber members present felt there was definitely a need for
additional retail and commercial space, especially since there is not one
open first floor retail space along the Route 17 corridor in the
downtown business district. There is no opportunity for expansion along
Route 17 due to lack of parking in the area. Business members
concurred that Tuxedo dollars should be kept in Tuxedo, to the extent
possible, and that the positive tax impact that comes with business
properties is a far greater advantage to the residents and therefore the
business community, than the possible competition that may occur
between businesses on Route 17 and those that will be located in the
Tuxedo Reserve Commons area. The three thousand square feet
currently allowed by the Special Permit is enough space for one
June 21, 2010
3.3-44
DRAFT
relatively small retail space and typically one stand-alone retail space is
not very viable. It needs surrounding businesses. Duck Cedar Plaza is
25 thousand square feet, so that gives an idea of the amount of space
that thirty thousand square feet would allow for, which is seven to nine
businesses, as it is in Duck Cedar Plaza, and that is certainly something
that will be needed to support the seven to eight thousand residents of
Tuxedo that will be present after the build-out of Tuxedo Reserve.
(Mottola)
Response 3-69:
Comment noted. Please refer to Response 3-68.
Comment 3-70:
Finally were you to allow this project to go forward, I suggest that you
require a humongous performance bond. (Wooters)
Response 3-70:
Comment noted. Regarding the performance bond, please see Response
3-3 in this chapter and Response 1-17 in Chapter 3.1, Comments and
Responses, Description of the Proposed Modifications.”
➭
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3.3-45
June 21, 2010
Chapter 3.4:
Comments and Responses – Archaeological Resources
A. CHAPTER 4: ARCHEOLOGICAL RESOURCES
Comment 4-1:
Chapter 4 of the SDEIS reveals that only the basic walk around and
shovel test archeological inspections were performed, and only at
selected locations…One would expect the DSEIS to propose a plan for
preserving, recording and photographing these and other potentially
other buried remains or archeological elements on the property. Instead
the developer's conclusions for nearly every find were, quote, "No
further investigations of these areas are recommended." Site lacked
integrity and was not considered significant. Wetlands and slopes over
twelve percent were not tested. National Register eligibility is beyond
the scope of this research. Location was judged to be disturbed. No
additional investigations are recommended. Findings are outside the
limits of disturbance. No further investigation is required." Oddly, cave
like rock shelters near Bog Meadow and Mountain Lake were not
reported at all. Two of these features were in fact photographed by an
archeologist working on the site, or rather a botanist working for
Tuxedo Reserve, who observed them. According to the archeologist, Ed
Lanack (phon), who is familiar with both these sites, one had been
professionally studied some time ago, but the other, near Bog Meadow,
has not. Lanack noted that this rock shelter has been looted. But still has
potential to be professionally investigated. He further noted another
rock shelter near Bog Meadow, and one at the northern end of Mountain
Lake, both of which have been looted, but retain potential research
value. While these rock shelters may not be located directly within the
area of disturbance, they will be located very close to new homes. In the
case of the photographed rock shelter near Bog Meadow, which I have,
but I'm afraid you will not be able to see at this distance, but I'll hold
these out to show you a little bit of evidence of the rock shelters that
were found on this parcel. While these rock shelters may not be located
directly within an area of disturbance, they will be located very close to
new homes. In the case of the photographed rock shelter near Bog
Meadow, it will be only feet away. Once this occurs, and these sensitive
sites are inevitably frequented by curious neighbors and amateur
archeologists, any valuable information and artifacts that still remain
will likely be lost for ever. (Regna)
Response 4-1:
The Tuxedo Reserve archaeological survey and all subsequent levels of
archaeological investigation were performed according to state
standards and approved by the New York State Office of Parks,
Recreation and Historic Preservation (OPRHP). These standards, which
are based on scientific sampling strategies, require shovel testing
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3.4-1
June 21, 2010
according to specific formulas on land that is to be directly impacted by
the proposed development, classified as the Area of Potential Effect
(APE). However, testing of certain terrain, such as standing water,
poorly drained soils, and slopes of more than 12 percent is not required
because of accepted Native American settlement pattern data. Areas that
have experienced subsurface disturbance (e.g., grading) are also
excluded from testing. These guidelines for the standard first level of an
archaeological survey, i.e., field testing, are circulated through the
following publications and website: Standards for Cultural Resource
Investigations and the Curation of Archaeological Collections, The New
York Archaeological Council, 1994; Cultural Resource Standards
Handbook, Guidance for Understanding and Applying the New York
State Standards for Cultural Resource Investigations, The New York
Archaeological Council, 10/2000; “State Historic Preservation Office
Phase I Archaeological Report Format Requirements,” 8/2005; and
http://nysparks.state.ny.us/shpo/archeology/.
Phase I surveys establish the presence/absence of archaeological
resources within the project APE. If testing has been conducted
according to the state guidelines, under the field leadership of a
qualified professional, and resources are not identified, no more testing
is required. It should be noted that according to both state and federal
guidelines, evaluations for National Register eligibility are conducted
during Stage, or Phase II studies, and not in the initial survey. It should
also be noted that Doug Mackey, Historic Preservation Program Analyst
with the State Historic Preservation Office (SHPO), accepted the Phase
IB reports prepared for the Proposed Modifications in a letter dated
August 24, 2009.
Ed Lenik, the professional archaeologist who was quoted in the above
comment, was Historical Perspectives’ Field Director and Primary
Author of the initial Field Testing Report (1998). During this survey
testing, Lenik identified seven rockshelter sites and tested all of them.
No diagnostic cultural material was found. In three of the rockshelters,
there was extensive evidence of prior looting, which destroys associated
provenience and archaeological research potential. Even with the
evidence of pothunting, Lenik proceeded to conduct tests within the
rockshelters. He did note quartz thinning flakes in the discarded looter’s
backdirt of one rockshelter.
Lenik’s assessment of the rock shelter occupation patterns for this
region is correct, and his inspection and extensive knowledge of this site
type was invaluable for the Tuxedo Reserve project. SHPO reviewed
and concurred with the HPI field report by Ed Lenik. A system of
inspection/testing for possible rockshelter sites within the APE has
continued throughout the project. As with each stage of the
investigation, SHPO has reviewed and concurred with the HPI field
reports.
Although it is possible to continue to conduct testing on disturbed sites,
the lack of integrity in the looted rockshelters would compromise
research findings. Disturbed rockshelters would never qualify for
further levels of recognition by state or federal agencies.
June 21, 2010
3.4-2
DRAFT
Chapter 3.4: Comments and Responses – Archaeological Resources
Potential rockshelter sites typically are found within bedrock ridge
formations, which are outside the housing envelopes and road corridors
of the Project. Rockshelters are part of the dynamic natural landscape of
Tuxedo Reserve, and they have been used over the past generations for
campsites and gathering spots. Such use inevitably entails a degree of
disturbance.
Comment 4-2:
It came to our attention that they had potentially found some artifacts
and remains and we tried to follow through as it looked like a fairly
reliable source. After trying to discuss with the Town and the developer
and when we went to the site with the developer’s archeologists, the site
was bulldozed, dumped on, altered, changed with no hope whatsoever
of finding any remains. So going forward there are regulations
governing these artifacts. I would like to ask that if you go forward with
this development that you establish a local oversight person that can be
available, perhaps on site. (Perry)
Response 4-2:
At the time this issue was raised at the public hearing, the Applicant
was unaware of the alleged disturbance. Immediately after the Public
Hearing, the Applicant, accompanied by a licensed archaeologist,
arranged to meet the commenter on the Tuxedo Reserve site to ascertain
the veracity of the alleged action. All new soil cuts in sand around the
areas where access roads, and test wells (previously approved) and had
been drilled were inspected for archaeological material. No artifacts or
remains were observed. Oversight is not required because all cultural
resource investigations must be completed prior to site disturbance.
Section IV.E., Cultural Resources, of the 2004 Findings Statement
addresses this point.
Comment 4-3:
I am compelled to comment on the story of Chief Dwayne Perry of the
Ramapo Lenape Nation. He spoke later in the evening last month, and
many of you were not able to hear his story. The chief was approached
by someone who had found what he believed to be Indian artifacts and
possible burial ground on the Tuxedo Reserve grounds. The chief's
pleas for help to both Tuxedo Reserve and the local police fell on deaf
ears. No one cared to listen to him or help him. This discovery had
exciting possibilities for those of us interested in the rich history of this
area. What has become of these findings? It was bulldozed and likely
destroyed forever. It is a federal offense to disturb or desecrate Native
American artifacts. It is a moral offense for Tuxedo Reserve to do so.
(Neuhauser)
Response 4-3:
Please see Response 4-2.
Comment 4-4:
The listing of the Village of Tuxedo Park on the National Register of
Historic Places made the county plan to make Route 17 one-way
northbound from Sloatsburg to Monroe, and one-way southbound from
Monroe to Sloatsburg through Tuxedo Park. This came to that end
because of the National Registry but otherwise it might not have.
(Hays/Alleman)
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3.4-3
June 21, 2010
Response 4-4:
Comment noted. The Project does not propose any direct or indirect
impact to the Village of Tuxedo Park, listed on the National Register.
Comment 4-5:
May I remind you that the listing of the village on the National Registry
of Historic Places protects it and its surroundings from negative
impacts, water, et cetera. And could cause Federal action if some
degradation is suspected. (Hays/Alleman)
Response 4-5:
Under Section 106 of the National Historic Preservation Act and
Section 14.09 of the New York State Historic Preservation Act, the
NYS Historic Preservation Office ensures that effects or impacts on
eligible or listed properties are considered and avoided or mitigated
during the project planning process. Since 1992, numerous cultural
resource investigations on the Tuxedo Reserve site have been conducted
to determine the potential for cultural resources on the Project Site. As
presented in the 1999 DSEIS and 2003 FEIS, the site planning
objectives for Tuxedo Reserve was, and still is, to avoid disturbance to
areas with the potential for cultural resources. These cultural resource
investigations, previously submitted to SHPO for review, have
concluded that the historic resources located within the Project area,
including the Village of Tuxedo Park, would not be disturbed by the
development of Tuxedo Reserve.
Comment 4-6:
In addition to the rock shelters this same botanist also observed
bulldozers working on-site to uncover an old roadway constructed of
cedar logs, a signature characteristic of the road reported to be
engineered by George Washington himself, during the revolutionary
war. Once again, no mention was made of this discovery, which is of
obvious significance to the history of Tuxedo. I submit the Tuxedo
Reserve's twelve hundred acre tract deserves much more thorough
archeological inspection and also a conscientious program to protect,
preserve and catalog Tuxedo history, should be proposed and acted
upon before 1195 units and three thousand new residents occupy this
space. (Regna)
Response 4-6:
In response to this comment, and a letter from SHPO, a study was
conducted to determine the historic context of the corduroy road1
identified by the commenter. Two sections of one log from the road,
plus two sections of live ash trees expressly felled for the purpose of
dating the road, were sent for dendrochronological analysis to the TreeRing Laboratory at Cornell University. The sections of log are complete
cross-sections from a small tree, pith to bark, with a maximum diameter
of 16.1cm. The species is black ash, Fraxinus nigra.
The felling of the live trees was crucial to determining if this section of
road was constructed recently, or could be part of an earlier road, as no
securely dated ash chronology with which to compare the road log’s
1
The term corduroy is used to describe the improvement of a road by placing logs across and
perpendicular to the path of travel, typically in a low-lying or swampy environment. The resultant
bumps in the road are much like the ridges of corduroy material for whence the name is derived.
June 21, 2010
3.4-4
DRAFT
ring-width sequence is available. The analysis found that the excellent
preservation of the log indicates that it is probably a more recent
construction, and is unlikely to be the remnants of the Continental Road
or a 19th century bridal path, as had also been speculated. The area of
the Project Site where the road was found is seasonally inundated, and
dries out in the late summer months. The upper half of each log is
exposed to air for at least part of the year. Given this exposure, and type
of wood, the analysis concluded that the road most likely dates to the
late 20th or early 21st century. The analysis of the live samples
confirmed this analysis.
Comparisons of the roadway samples and live ash samples, positively
confirmed that the logs found in the corduroy road were felled in 2004,
and as such, have no relation to the Continental Road or the 19th
century bridle path. The full dendrochronological report is included in
Appendix H. As previously stated by the Applicant, these logs were laid
across the existing dirt roadway to allow for the crossing of trucks while
the well tests were being conducted onsite.
It should be noted that there is a dirt road that is located where 19th and
18th century maps show the Continental Road to be located. That dirt
road traverses a narrow section of the Tuxedo Reserve property, but it is
not a corduroy road. This portion of the dirt road that appears to be a
portion of the right-of-way for the Continental Road is adjacent to the
former site of the South Gate house in the extreme western portion of
the Project Site (see Figures 1 through 10, and Photographs 10 and 11 in
Appendix H of this FSEIS). Potential impacts to this section of the dirt
road right-of-way for the Continental Road were analyzed in the Project
Approvals, and although the proposed disturbance to the dirt road rightof-way for the Continental Road crossings would be shifted south, the
amount of disturbance would not be altered by the Proposed
Modifications.
To estimate the potential disturbance to the Continental Road as it
passes through the far western end of the Tuxedo Reserve APE, the
Erskine 18th century survey and the more precise 1858 Brooks survey,
were superimposed onto the Composite Site Plan. Approximately 1,200
linear feet of the Continental Road cross the Project Site, and additional
±400 linear feet cross the PIPC Parcel. Under each Alternative, the
Continental Road would be disturbed by building lots, roadways, and
the well water station lot. The Project Approvals would disturb
approximately 750 linear feet, the Proposed Modifications would
disturb approximately 725 linear feet, and the PIPC Alternative would
disturb approximately 1, 025 linear feet of the Continental Road. These
disturbance estimates are based on the preliminary lot layout, the exact
amount of roadway to be preserved versus disturbed cannot be
determined until the final design phase. The Applicant will conduct a
Phase 2 investigation of any archaeological sites that fall within the
disturbance areas as previously identified in the Phase IB archaeological
survey, and will coordinate with SHPO to determine appropriate
mitigation measures, if indicated
DRAFT
3.4-5
June 21, 2010
The portion of the dirt road right-of-way for the Continental Road that
would be disturbed is not in its original state. The corduroy road does
not exist. In addition, heavy equipment has been brought on-site across
the dirt road, and ATVs and other recreational vehicles have repeatedly
used it. As indicated in Figure 10 referenced above, under the Project
Approvals, Proposed Modifications, and the PIPC Alternative, this
portion of the dirt road right-of-way for the Continental Road would be
disturbed by the construction of Phase 3 of the Project. As shown in the
figure, the Project Approvals and Proposed Modifications would result
in similar amounts of disturbance, while the PIPC Alternative would
result in more disturbances.
Under all Alternatives, and prior to the development of this portion of
the Project Site, the extant dirt road right-of-way for the Continental
Road within the western portion of the Phase 3 Tract of the Tuxedo
Reserve should be photo-documented, and a National Register
inventory form should be completed for the feature. A New York State
site inventory form should also be completed. Furthermore, an extant
portion of the corduroy section of the Continental Road exists in its
original state beneath Wee-Wah Lake (see Figures 2 through 7 in
Appendix H).
Comment 4-7:
Archaeology. As noted elsewhere, the SDEIS does not contain a full
review of potential cultural resource impacts; instead, deferring a more
detailed analysis of these issues to the future in reliance on the OPRHP
protocol. Moreover, it appears that the SDEIS contains an inadequate
recognition of the presence of the historic Continental Road on the
Project Site and an analysis of potential impacts on this resource.
(Sterthous)
Response 4-7:
With regards to the Continental Road, please refer to Response 4-6.
Detailed cultural resource analyses have been ongoing since 1992 when
the first cultural survey report was prepared for the Project Site and
specifically disclosed the presence of this feature on the Project Site.
Recently, and specifically in conjunction with the Proposed
Modifications, a Phase IB Cultural Resource Addendum was prepared
for the revised APE associated with the Proposed Modifications for all
three phases of the Project (November 2008 reports prepared by
Historical Perspectives, Inc.). As required by SHPO, Phase II analyses
have been conducted where SHPO has determined additional field
survey is warranted. Lastly, Phase III Data Recovery has proceeded for
those specific areas that cannot be avoided, e.g., a quartz quarry and
workshop area within the North Ridge sub phase.
Comment 4-8:
We would like to register our strong disapproval of this Revised Special
Permit and our clear sense that both the Town Board and the Related
Companies itself may be overlooking not only the very real and valid
concerns of the population of the Town of Tuxedo and its incorporated
Village of Tuxedo Park, but also the patrimony of the American people
in general. The Continental Road - to say nothing of various Native
June 21, 2010
3.4-6
DRAFT
American camp grounds and tool-making quartz quarries and burial
grounds - is a resource that must not be taken lightly. And there can be
no question that its well-preserved and documented existence on the
site, at the very least, requires that you, as elected officials, slow the
process down until both more is known about how it is to be properly
preserved during and after the construction of a suburban development
that promises to more than double your town's population. Neither is it
at all appropriate, given the historical significance of the site in
question, for a profit-making entity to be allowed to supervise itself in
this development process through the implementation of said "Smart
Code." (Salz)
Response 4-8:
As noted previously, the location and potential impacts to the
Continental Road have been documented as part of the previous
SEQRA review for the overall project (see Response 4-6, above).
Further, specific and detailed investigations are being conducted in
those locations where impacts cannot be avoided (see Response 4-7,
above). The Applicant is not supervising itself—the Town and other
county, State, and federal agencies will oversee implementation of the
project through their permitting and approval processes.
Comment 4-9:
(Page 4-4) The DSEIS acknowledges that "the Revolutionary War
period Continental Road" ran through the subject property, even
hypothesizing that certain structural features found on the site were
associated with the Continental Road. Yet, the DSEIS is silent on the
very significant importance of this road not only to local history, but to
national history. In fact, the road was reportedly built under the direct
orders of George Washington as a strategic road during the
Revolutionary War, and therefore has significance not just to national
history, but to the actual founding of the nation itself. The extant
presence of a strategic Revolutionary War roadway, which remains in
its original state, and not later paved as a modern road, is extremely
rare, and represents a unique opportunity for archaeological
investigation. It seems inconceivable that the investigators could report
knowledge of this important roadway on the property, yet not include
subsurface investigation along its entire route, both within and
immediately adjacent to the roadway. Before this land is developed, this
may represent the last opportunity to recover artifacts that may testify to
this roadway's role and importance in the Revolutionary War. At a bare
minimum, the route of this roadway should be clearly identified on a
map, with an assessment of the impact that the proposed development
will have on it. The roadway should be investigated in at least the areas
of direct impact, but given secondary impacts that may come from
placing a large new population in direct proximity to these resources, it
makes sense that the entire roadway be investigated as a whole. (Gross
12/31/09)
Response 4-9:
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3.4-7
June 21, 2010
Comment 4-10:
(Page 4-6) As the Village of Tuxedo Park is listed on the National
Register of Historic Places as an Historic District, it stands to reason
that any resources that contribute to the history of that District may also
be eligible for the National Register as contributing elements in an
expanded demarcation of that District. This would include not only the
Smith-Jefferson Homestead as suggested in the DSEIS, but certainly the
remains of the South Gate House, as well as the entire system of 19th
century bridle paths and corduroy roads that provided access through
the Reserve. What impact would the National Register eligibility of
these resources have on the Proposed Project? (Gross 12/31/09)
Response 4-10:
A “system of” corduroy roads does not exist on the Project Site. The
site’s relationship to the Village of Tuxedo Park has been documented
in various cultural surveys transmitted to SHPO, including the survey
initially prepared in 1992 for the subject project. That report includes
graphics that illustrate the bridal paths, the South Gate, and relationship
of the Project Site to the Village. The remains of the South Gate house
are not proposed to be disturbed. SHPO has already reviewed the
potential impact of the proposed project on the Village as part of the
SEQRA process for the special use permit approved in 2004. SHPO
continues to be involved in the review process through the MOU, dated
March 19, 2001, and appended to the 2004 Findings Statement. The
MOU states that the “Project will not have a visual impact on the
Tuxedo Park Historic District.” The Findings Statement has concluded
there will be no significant adverse impact on cultural resources.
Comment 4-11:
As you know, the State Historic Preservation Office (SHPO) has
previously reviewed archaeological studies completed for this Project
by Historical Perspectives, Inc. (HPI). During that work several
archaeological sites were identified which we recommended be avoided
and we continue to await word from you on just how that avoidance will
occur. As part of that previous work, HPI has identified the presence of
the “Continental Road” (Road) in the vicinity of the Project area. This
road was built by the Continental Army during the Revolutionary War
and played an important role by providing alternative route for transport
and communication during the war. Although HPI reported that the road
was in the vicinity, it was their opinion that, aside from a small section,
the road was not located within this project’s Area of Potential Effect
(APE). At the time SHPO reviewed the report, we had no information to
suggest otherwise and concurred with that finding. However, we have
recently been approached about new finds with the subject property
which suggests that the Road may have actually been more than a single
corridor, and that intact portions of corduroy construction may exist
within the Areas of Potential Effect. I met with the informant on
December 29, 2009 to assess his information and based on that meeting,
it seems credible enough to suggest that it be given serious
consideration during the Environmental Review process. Therefore,
SHPO is recommending that additional study be completed to assess
this newly available information to determine: 1) the extent of the newly
identified features; 2) reconsider the probable location of the Road
June 21, 2010
3.4-8
DRAFT
network in light of the provided information; 3) evaluate the potential
impacts of the Project on the Road corridor and any intact sections of it;
and 4) if the Road will be adversely impacted, to consider modifications
to the Project to remove those impacts, or to develop mitigation
measures designed to reduce any negative impacts. Additional
information provided by the informant, Thomas Wilson, includes a
series of maps which suggest that road names used in assessing
probable locations of the Road have changed and which suggest
additional side routes which may have been part of a road complex;
photographs of intact sections of the corduroy road which are reportedly
within the subject property; historic texts describing the Road which
may suggest a different location for its route than previously suspected.
SHPO recommends that your archaeological consultant meet with Mr.
Wilson on site to visually inspect the corduroy road section he has
identified and to evaluate how it relates to the APE and your Project.
This meeting will also allow them to gather any additional information
which he may have and to discuss the map based information with Mr.
Wilson and to gain a better sense of the concerns related to this
important historic feature. Ultimately, they should be able to incorporate
any new information into an analysis that re-examines potential impacts
to this feature and in assessing if additional field work will be needed to
identify and document additional sections of the feature. (Mackey)
Response 4-11:
Please refer to Responses 4-6 and 4-7. A small previously disturbed
section of the dirt road right-of-way for the Continental Road would be
disturbed by the construction of Phase III. This potential disturbance
was previously identified in the Project Approvals. No significant
features, such as corduroy road sections, of the Continental Road would
be disturbed.
Comment 4-12:
It does not appear that SHPO has ever received a Project plan that
shows the specifics of the proposed development. The archaeological
report included maps which showed topography, but nothing which
identified what would be built. We understand that final plans may not
yet be available; however we would recommend providing our office
with whatever current plans are under discussion. In addition to helping
our office with the current discussion regarding the Road, these plans
would also provide us with an initial look at if and how you are
planning avoidance of other sites as suggested in previous
archaeological reports, and provide us with an opportunity to provide
early comments regarding avoidance, which may be helpful to you as
you progress your plans. (Mackey)
Response 4-12:
The preliminary plan for the Proposed Modifications including
topographic data was transmitted to SHPO previously and accompanied
the Phase IB cultural Survey reports. The Phase IB Cultural Resource
Survey Addendum for the Development Phase 1 and the Phase IB
Cultural Resource Survey for Phase 2 and 3 (November 2008, Historical
Perspectives, Inc.) also include detailed maps of the APE superimposed
on topographic maps with 2-foot contours. As required by the MOU, the
Applicant will continue to coordinate with SHPO. SHPO will continue
DRAFT
3.4-9
June 21, 2010
to receive site-specific site and subdivision plans as the project
advances for review and comment. As was done with the North Ridge
section, the Planning Board will not approve a site or subdivision plan
until a sign-off is received from SHPO.
Comment 4-13:
In my opinion, the following cultural issues pertaining to the
development have not been addressed in the previous cultural resources
investigations. I feel these issues need to be addressed before any
development approvals are granted:
1. It appears that there is an extant section of the historic 18th century
Continental Road within an undisturbed section of the Tuxedo Reserve
property. This significant cultural feature has not been investigated by
the developer.
2. There is a rockshelter at the northern end of Mountain Lake that was
occupied by American Indians. This feature has needs to be investigated
and assessed.
3. There are two rockshelters near Bog Meadow that were occupied by
American Indians. These features need to be investigated and assessed.
4. Although several iron mine shafts have been located within the
property, the applicant has failed to fully investigate the operations,
ownership, date of operation, related structures, and their relationship to
other iron producing entities in the region. (Lenik)
Response 4-13:
Please see Responses 4-1 (regarding rockshelters), 4-6, and 4-7
(regarding the Continental Road). Iron mine sites have been
investigated and New York State Historic Archaeological Inventory
Forms have been submitted to SHPO with regard to same for the
agency’s review (most recently in November 2008). The Project Site’s
relationship to the iron mining industry is well-documented in the 1992
Cultural Resource Survey and summarized in the 1999 Tuxedo Reserve
DSEIS.
Comment 4-14:
Some buildings…are close to rock outcrops that may have
archaeological significance. (Horowitz 1/1/10)
Response 4-14:
Throughout the environmental review of this project, the Applicant
coordinated with the SHPO on issues pertaining to archeological
resources on the Project Site. The appropriate investigations have been
conducted and the results shared with the State. Please refer to
Responses 4-4 and 4-5 for additional information pertaining to rock
outcrops/rocks shelters.
➭
June 21, 2010
3.4-10
DRAFT
Chapter 3.5:
Comments and Responses – Natural Resources
A. CHAPTER 5: NATURAL RESOURCES
GENERAL
Comment 5-1:
Now, from my review of the Tuxedo Reserve SEIS and natural
resources report, which is Appendix G., I'd have to say that the work
done here is less than thorough. Superficial, spotty, and glancing are
more accurate words. (Barbour)
Response 5-1:
Numerous extensive field surveys have been made of the Project Site
since 1988 including several that have occurred since the Project was
approved. These include the following:
Vegetation surveys were conducted from 1988 through 2008 including
but not limited to November and December of 1988, March and July of
1992, April through August of 1995, July, September and October of
1997, March to May of 1998, and June and August of 2008;
Wildlife surveys were conducted from the late 1990s through 2010
including but not limited to April to August of 1995, July of 1995 (owl
and hawk call back surveys), July, September and October of 1997, Mid
April through July of 1999, spring and fall of 2007 and 2008 (redshoulder hawks observed);
Timber rattlesnake surveys, as directed by NYSDEC, were conducted in
late April to mid-May of 1995, April to May of 1998 and seven days
from late April through late May of 2003;
Bat mist net surveys were conducted from May 15 to 21 and again from
June 6 to 12 of 2006;
Supplemental surveys of amphibians associated with vernal pool habitat
were conducted in 2006, 2007 and 2008; and
Copperhead den survey conducted from April to May of 2010.
Furthermore, an extensive survey of the Southern Tract was conducted
in 2007 from which a detailed vegetative mapping of the area was
prepared. The results of the survey are shown in Figure 14a and 14b of
the Technical Memorandum.
It is important to note that NYSDEC identified the specific species for
which studies would be performed and developed the protocol by which
the surveys and studies were to be conducted. Also noteworthy is the
fact that NYSDEC personnel accompanied the project team’s
environmental consultants on-site for certain surveys (e.g. rattlesnake).
DRAFT
3.5-1
June 21, 2010
Comment 5-2:
Steep Slopes. The SEQRA environmental assessment form identifies a
potential significant impact from development on slopes greater than
15%. The affected slopes on the project site are identified as general1y
greater than 33%. No further analysis on the impacts to steep slopes is
contained in the SDEIS. (Sterthous)
Response 5-2:
It appears that the commenter is generally referring to Part 2 of the
Environmental Assessment Form, which a Lead Agency typically uses
to determine whether or not a proposed action will have no impact, or
may have the potential to generate a small to moderate impact, or a
significant adverse impact on the environment. This generic form is one
of many items a Lead Agency uses to evaluate potential impacts, and it
does not specifically conclude that a significant adverse impact will
result from disturbance to slopes greater than 15%. Furthermore, the
1999 DSEIS and FEIS evaluated the potential impacts to steep slopes.
Slopes in the range categories of 0-15%, 15-25%, and 25% and greater
were mapped for the entire site, and steep slopes that would be
disturbed by the proposed project identified. Primary cut/fill areas were
also identified in the SEQRA documents. A comparative diagram of the
2004 Preliminary Plan and Proposed Modifications disturbances to
steep slopes was also provided in the Technical Memorandum
It is noted that the Tuxedo Reserve’s topography is hilly and bedrockcontrolled, consisting of mountainous terrain that is surrounded by lowlying areas predominated by small lakes, ponds and wetlands. Dramatic
changes in elevation create valleys and ridges throughout the site. On
the Southern Tract, elevations range from approximately 400 feet to 940
feet above Mean Sea Level. The site’s relief varies from relatively flat
areas near waterbodies and wetlands, to hilly areas with steep slopes
that exceed 33 percent. The Southern Tract’s hilly terrain is broken up
by pockets of hydric soil in depressions and by intermittent surface
waters—most notably Mountain Lake.
Because of the dramatic changes in topography caused by bedrock
outcrops, scattered valleys, and ridges, slopes are highly variable
throughout the site. Figure 8-3 of the 1999 DSEIS illustrates the slopes
present on the Tuxedo Reserve project site. Ridges running north-south
roughly parallel to I-87 and the Ramapo River in the Fox Hill and
Southern Tracts exhibit slopes of greater than 25 percent through much
of their extent. These ridges are broken up by valleys of very gradual
slope (0-15 percent) that are often longer than 2,000 feet. This
patchwork of ridges and valleys in the Southern Tract gives it a very
heterogenous slope description.
To the extent that the Project would disturb steep slopes, this was fully
analyzed in the 2003 FEIS, Findings Statement, and Technical
Memorandum. The Proposed Modifications would continue to
implement key design and planning elements to ensure the integrity of
the topography, including the following:
•
June 21, 2010
Minimize the amount of land to be disturbed by avoiding severe
topography, creating development clusters, and incorporating
performance standards that govern the installation of roads and
buildings. Accordingly, approximately 70 percent of the
Southern Tract would be undisturbed during construction.
3.5-2
DRAFT
Chapter 3.5: Comments and Responses – Natural Resources
•
Wherever possible, utilize existing woods roads on the site that
were formerly used in logging for the location of proposed
paved roadways.
•
Avoid disturbing slopes greater than 25% where practicable.
•
Create building styles that can work within the existing
topography, thereby reducing the amount of disturbance
necessary. These design styles are defined in the Smart Code as
uphill and downhill lots.
•
Adhere to vigorous
management practices.
performance
standards
and
best
Comment 5-3:
Please deny the draft Supplemental EIS because of the project’s
negative impacts on water and other important natural resources. It will
disturb and disrupt the rugged terrain. It will cause stormwater runoff,
bedrock fractures, forest fragmentation, and negatively impact wildlife.
(Bhathal)
Response 5-3:
The overall project was approved in 2004 and this SDEIS is focused
only on the potential environmental impacts of Proposed Modifications
to the approved project. The potential impacts of the Project were fully
analyzed in the FEIS and Findings Statement, which were the basis for
the Project Approvals. The SDEIS and the Technical Memorandum
conclude that no significant adverse environmental impacts would be
generated by the Proposed Modifications, including those referenced in
the comment.
Comment 5-4:
WHEREAS, an Act of Congress recognizes the national significance of
the Highlands region to the United States and the Highlands
Conservation Act of 2004 encourages a regional approach and
cooperation to protect priority conservation lands by the four states in
the Highlands region; and; WHEREAS, the Ramapo River in the
Highlands region, with headwaters in New York, is a Federally
designated sole source aquifer that provides drinking water for over two
million residents in New Jersey, and also supplies 40 per cent of
Rockland County's water; and; WHEREAS, the Ramapo River
Watershed and aquifer are already severely stressed and barely meet US
Environmental Protection Agency water standards; and WHEREAS,
unfragmented forest is critically important to protect the aquifer and
wildlife habitat; and WHEREAS, the Ramapo River Watershed
upstream in New York State is under threat of development from largescale housing projects including the Tuxedo Reserve development
which proposes to build 1,195 units and 33,000 square feet of
commercial space across 2,300 acres of forested steep slopes; and
WHEREAS, the site for Tuxedo Reserve is located in the New York
State US Geological Survey Quadrant with the highest level of
biodiversity in reptile and amphibian species, including the Timber
Rattlesnake, a "threatened species" requiring protection under the New
York State Department of Conservation; and WHEREAS, the
construction of Tuxedo Reserve will disturb steep slopes, causing soil
DRAFT
3.5-3
June 21, 2010
erosion to silt up streams and rivers; uncover bedrock to expose cracks,
allowing non-point source pollution to migrate directly into the aquifer;
and add impervious surfaces, preventing rainwater absorption into the
ground and increasing run-off and area flooding; and WHEREAS,
Tuxedo Reserve would destroy land that is a New York State Open
Space Conservation Plan priority site surrounded by Harriman State
Park, Sterling Forest State Park, the Wanaque Wildlife Management
Area, Tranquility Ridge Passaic County Park, Ringwood State Park,
Ramapo Mountain State Forest, and Ramapo Valley County
Reservation. NOW, THEREFORE, BE IT RESOLVED that the New
Jersey Chapter of the Sierra Club finds that the Tuxedo Reserve
development would significantly degrade the Ramapo River Watershed,
irreparably harm the ecosystem, and adversely affect the priority
conservation lands of the surrounding Highlands wilderness; and BE IT
FURTHER RESOLVED that this Chapter opposes the Tuxedo Reserve
development and calls upon the Town of Tuxedo, NY to find ways to
preserve and protect this environmentally sensitive site as open space.
(Sierra Club and New Jersey Chapter and Passaic County Board of
Chosen Freeholders)
Response 5-4:
The Project’s potential impacts on the Ramapo River were studied in
the FEIS and it was concluded that no significant adverse impacts to the
Ramapo River would be generated by the Project. As concluded in the
SDEIS and the Technical Memorandum, the Proposed Modifications
would not have the potential to generate any new significant adverse
impacts on the Ramapo River. All wastewater and stormwater
discharges into the Ramapo River will be in compliance with all
applicable laws and regulations. As to the reference to the Timber
Rattlesnake, please refer to Responses 5-33 and 5-34. As to the potential
impacts of development on steep slopes, the FEIS concluded that the
Project would not have the potential to generate any significant adverse
impacts. The SDEIS and the Technical Memorandum conclude that no
significant adverse impacts would be generated by new development on
steep slopes contemplated the Proposed Modifications.
With regard to the New York State Open Space Conservation Plan, the
Highlands Region is designated as a priority conservation area. While
the Tuxedo Reserve site is not specifically identified, it is noted that it
falls within the specified region. Notwithstanding the above, nothing in
the New York State Open Space Conservation Plan precludes the
Project from being approved by the Town or being developed.
Furthermore, to the best knowledge of the Town, New York State has
no intention of purchasing or otherwise acquiring the Project Site for
open space preservation.
Comment 5-5:
June 21, 2010
HydroQuest Figures 3, 4, and 5 (color GIS maps) accent the project
location amidst rugged topography. Hillshaded Digital Elevation Model
(DEM) data was used on Figures 3 and 5 to provide a topographic
effect. The numerous large and small wetlands throughout and
surrounding the project site, including both State and Federal wetlands
3.5-4
DRAFT
and adjacent uplands, make this one of the most species rich sites in
New York State. (Rubin/Tuxedo Land Trust)
Response 5-5:
The 1999 DSEIS states that the Southern Tract provides the most
diverse landscape of the subject property. The detailed studies of the
Tuxedo Reserve Project Site have documented that the site is
representative of the diverse topography and numerous wetland systems
that are typical of the formerly glaciated Highlands Region. The
Proposed Modifications would enhance protection of wetlands by
reducing disturbance and providing greater protection to wetlands that
function as vernal pools for amphibious species of special concern.
FOREST FRAGMENTATION
Comment 5-6:
The SDEIS notes that there are only three truly unfragmented forests
left in New York State; the Catskill reserve, the Adirondacks, and
Sterling Forest. This is considered part of the Sterling Forest
unfragmented forest and the SDEIS notes that the Mountain Lake
development will eliminate 94 acres of unfragmented forest, leaving
202 acres. That means there is 296 acres under the old permit so the
change is being cut down by a third. Between the forest fragmentation
and the wetlands that have not yet been identified and the wildlife
corridors that would be destroyed, Mountain Lake just seems like a bad
idea. (Gross 10/26/09)
If you take a critical look about putting that many houses on that many
acres, you’re going to end up with fragmentation. A lot of the mitigation
measures really aren’t that meaningful. (McGowan)
More broadly, the issue that the Tuxedo Reserve is bigger than the thing
itself. Certainly it affects the whole region in many, many ways. We
have seen a gradual change over the last half century from the vision of
suburban utopia to a recognition that the areas that are actually still
contiguous wild lands are most valuable and have the highest and best
use. That change over is one of a series of changes that have happened
in this region from the industrial vision, to suburban utopian vision, to a
recognition now -- although those things are there, they are confined to
their limits now, and the areas that are open and wild are most valuable
as open and wild land. Particularly we see just in the last few weeks a
whole series of newspaper and magazine discussions of the problems of
species having to migrate northward, through issues of global warming,
and maintaining corridors with migrations is so important. The reality is
Tuxedo Reserve is part of that open corridor, which also includes
Sterling Forest, includes areas that people have been fighting to
maintain, to the extent that we possibly can, because once they are gone,
they are gone. And this is a very central part of it. (Horowitz)
I am concerned about what is called development, especially in this
northern tract, Mountain Lake, what will happen to the environment.
Then also the Fox Hill tract. And the segmentation that was spoken of
earlier is precisely what I am concerned about. But I'm not only
concerned about that. (Bumbar)
DRAFT
3.5-5
June 21, 2010
This forest which lies between Harriman State Park and Sterling Forest
State Park would become fragmented, destroying critical habitat for
much wildlife. All things considered, the project should never be
allowed to move forward. (Macchio)
If this development is allowed to proceed it would undermine New
Jersey’s efforts to protect Highlands water resources. Tuxedo’s
population would double and critical habitat for many species would be
lost. It would be a disaster for the wildlife and fragment a forest that is
surrounded by Harriman State Park and Sterling Forest State Park.
(Macchio)
Fragmenting this forest will not only hurt regional water supplies but
will also destroy the essential habitat of reptiles and amphibians,
especially the threatened timber rattlesnake. (Kohl)
The 21-acre development is described as having no impact, while it's
admitted that such holes in the woods eliminate habitat for forestinterior birds. Actually it's worse. Studies prove that forest-interior
species - not just birds but mammals, reptiles and amphibians - are
driven farther and farther back from the perimeter of the developed
area, leading to species loss in an area five or six times the area of
disturbance, largely due to the penetration of predators and competitive
species (Bender et al. 1998). (Barbour 12/1/09)
(Page 5-7, Forest Fragmentation) As discussed in the DSEIS, unfragmented forests are an important and rare resource. The DSEIS
correctly notes "changes in land use have restricted truly un-fragmented
forests to those few remaining intact systems such as the Catskills
Reserve, Adirondack Preserve, and Sterling Forest." The un-fragmented
forest here is one of the primary reasons why Sterling Forest is one of
two "hot spots" in New York State with an extremely high species
diversity. The other is in the Shawangunk Mountains. This property is
currently part of the Sterling Forest un-fragmented forest, and does
exhibit the characteristics of a habitat with an extremely high species
diversity. This is clearly evidenced by the 18 species of amphibians and
reptiles that were noted in the DSEIS as just utilizing the vernal pools
alone. Obviously, the approved 2004 plan would already have a
significant impact on reducing the amount of un-fragmented forest in
the Sterling Forest area, but the DSEIS discloses that the Mountain
Lake portion of the development will cause the loss of an additional 94
acres of unfragmented forest, leaving 202 acres intact. Extrapolating
from this statement, this means that 296 acres of un-fragmented forest
would remain under the current Special Permit, and nearly of third of
that - 94 acres - would be lost under the proposed amendment. This is a
significant impact that would be avoided if there were no development
proposed in the Mountain Lake area. (Gross 12/31/09)
Response 5-6:
June 21, 2010
The detailed studies in the FEIS confirm that the Project would not have
the potential to generate any significant adverse impact to contiguous
forest lands. It is also noted that the Tuxedo Reserve site comprises
almost 2,301 acres. Of this total acreage, 1,197 acres are within the
Southern Tract - the parcel proposed for development and where the
Proposed Modifications would be located. The Northern Tract is largely
designated for preservation. If the PIPC land swap alternative is
implemented, the entirety of the Northern Tract would be preserved.
The Project calls for the entire Fox Hill Tract to be preserved and the
3.5-6
DRAFT
Proposed Modifications do not alter its proposed total preservation. Of
the properties to be preserved, the Northern Tract is the area most
substantially encompassed by the nearby Sterling Forest area. However,
even this remote parcel is fragmented by the existing County Highway
84 (Long Meadow Road) and Warwick Brook Road. Nevertheless,
preservation of the Northern and Fox Hill tracts promote meaningful
preservation of unfragmented forest. The land proposed to be preserved
for open space in these two tracts is 753 acres and 209 acres,
respectively for a total of 962 acres. By concentrating development on
419 acres of the 1,197 acre Southern Tract, the 1,381 acres remaining
on the Tuxedo Reserve Project Site can be left as undisturbed open
space, thus, avoiding adverse impacts and minimizing the impact of
forest fragmentation.
The commenters assert that development of the Southern Tract would
result in fragmentation of the Sterling Forest and that the Proposed
Modifications would cause fragmentation of the forest community
located on the Southern Tract. It is noted that the Southern Tract is not
part of or within Sterling Forest. Rather, the Southern Tract is
substantially surrounded by pre-existing development (Town of
Tuxedo, Village of Tuxedo Park, and the Village of Sloatsburg) that
isolates the Southern Tract from the unfragmented Sterling Forest.
Specifically, the existing development that surrounds the Southern
Tract, including the concentrated development of Sloatsburg and the
Town of Tuxedo to the east, and the low development intensity of
Tuxedo Park on the western boundary, have isolated the Southern Tract
from most of Sterling Forest. Nevertheless, the Applicant has taken
specific steps to ensure the protection of wildlife corridors, wetlands,
streams, rock outcrops, and other unique vegetative communities and
wildlife habitats, to the extent that a total of almost 1,753 acres, or 76
percent of the entire Tuxedo Reserve Project Site will be permanently
preserved as open space.
In addition, the Southern Tract is not itself an unfragmented forest.
While the Southern Tract is predominantly a forested area, the Southern
Tract is not part of an unfragmented forest, in large part because of the
surrounding previously developed areas. The northern portion of the
Southern Tract, particularly the area that is the subject of the Proposed
Modifications, that being that area located south of Mountain Lake, is
positioned between the higher density development of Sloatsburg to the
east and the low density, but developed, Village of Tuxedo Park to the
north and west. Furthermore, there is no contiguous open space corridor
to the north connecting to Sterling Forest due to the intervening
presence of Tuxedo, Fox Hill and Club House Roads and the
development associated with these roads. The entirety of the Southern
Tract is further severed from other forested areas by South Gate Road
and its associated development to the west, Eagle Valley and Sterling
Mine Roads and their associated development to the south and both
Route 17, and the New York Thruway to the east. Thus, the SDEIS
reasonably concludes that the Proposed Modifications would not have
the potential to generate any significant adverse impacts on
unfragmented forest lands.
DRAFT
3.5-7
June 21, 2010
Finally, the New York - New Jersey Highlands Regional Assessment
Update (2001-2002), a study funded and directed by the USDA Forest
Service was reviewed. As noted on the Highlands Regional Information
System
website
(http://crssa.rutgers.edu/projects/hiris/),
which
summarizes the data presented in the report, “[t]he purpose of the 2002
U.S. Forest Service study was to identify the most critical natural
resources in the Highlands, assess their present condition, and project
possible future scenarios with respect to human factors such as those
listed above.” The site goes on to state that:
“The Biodiversity and Habitat Resource assessment is comprised of 3
elements that describe the status and location of biologically diverse
plant communities and significant habitant for both plant and animal
species:
•
•
•
Significant habitat for threatened and endangered animal species
and animal species of concern
Significant areas for threatened and endangered plant species
Areas of significant biodiversity and exemplary plant communities
The combined data layers reveal areas that are less important for
biodiversity and habitat value, and those where conservation efforts
should be emphasized.”
It is important to note that the Biodiversity and Habitat Resource Value
of the Southern Tract, based on data collected for and presented in the
study, is in the “Lowest” to “Low” to “Moderate” range. This is an
indication that the project site’s location, wedged between the hamlet,
Tuxedo Park and Sloatsburg, and existing development, limits its
biodiversity and habitat value.
Please refer to Responses 5-33 and 5-34 for issues related to the timber
rattlesnake.
Comment 5-7:
June 21, 2010
I am writing, as a citizen of Tuxedo, because I would like to know if
anyone has properly addressed the forest fragmentation issue that will
be caused by the plan outlined in Tuxedo Reserve's Application for a
Special Permit. Fragmentation of forested habitat is considered by the
scientific community (of which I am a part) to be one of the top three
threats to the health of the environment. The health of the environment
has direct links to human health and the economy. Forest fragmentation
can compromise free services provided by forested areas such as
purification, filtering, and storage of drinking water; purification of air;
maintenance of the composition of the atmosphere and its influence on
climate. It can also result in the loss of biodiversity and spread of
invasive species. If the Town of Tuxedo had to replace the free forest
service of water purification with an artificial system of water
purification the financial circumstances would be disastrous. As an
example, New York City is currently having to pay a huge amount of
money to build a water filtration plant to treat the water that arrives
from its Croton watershed. The Croton watershed has become impaired
over the years as a result of forest fragmentation and can no longer
3.5-8
DRAFT
provide this service for free. See this link for more info:
http://www.nytimes.com/2007/08/11/nyregion/11plant.html?scp=1&sq=
%20van%20cortlandt%20park%20water%20filtration%20system&st=c
se. We have the opportunity to observe how NYC is struggling with this
issue, it would be smart for Tuxedo's government to show wise
leadership and not allow this to happen in our town. (Gmelch)
Response 5-7:
Please see Response 5-6 and Response 5-8 for concerns relating to
forest fragmentation and wildlife habitat.
With regard to drinking water, it should be noted that the Project with
the Proposed Modifications will meet or exceed all NYSDEC and
NYSDOH requirements for the supply of potable water to both existing
residents and future residents of Tuxedo Reserve. It has also been
agreed that as a part of the final design, there will be no discharges from
pavements to Tuxedo Lake, a drinking water supply.
As noted on the USEPA website (http://www.epa.gov/ATHENS/
research/impervious/) and materials presented by The Stormwater
Center in conjunction with the Impervious Cover Model
(http://www.stormwatercenter.net/monitoring%20and%20assessment/i
mp%20cover/impercovr%20model.htm), degradation to stream water
quality occurs when impervious surface area within the watershed
reaches the 10 to 20 percent range. Although only a portion of the water
quality picture in any watershed, using this correlation between stream
water quality and impervious surface, it can be concluded that the
Proposed Modifications will not result in significant adverse impacts to
water quality in the Tuxedo Lake Watershed.
Specifically, roughly 30 acres of the Tuxedo Reserve Project Site is
located within the approximately 2,500 acre Tuxedo Lake watershed;
this equates to 1.2 percent of the total watershed area. Within these 30
acres, the proposed development would introduce approximately 12.5
acres (0.5 percent of the watershed area) of additional disturbance
compared to what was analyzed in the original DEIS. Of that area, 2.9
acres (or a 0.1% increase) would consist of impervious surfaces. Total
impervious surface coverage within the Tuxedo Lake watershed from
the proposed development in its entirety would be well below 10
percent. As such, stormwater runoff changes associated with the
development of the revised Project are not anticipated to result in any
significant adverse impacts to water quality in the watershed. Please
also refer to Responses 6-23, 6-49 and 6-56 in Chapter 3.6, “Comments
and Responses – Hydrology and Stormwater.”
The air quality comment is not within the scope of analysis of the
DSEIS as potential air quality impacts were fully analyzed in the 1999
DSEIS and 2003 FEIS, which were the basis of the Project Approvals,
and it was determined by the Town that no violations of National
Ambient Air Quality Standards (NAAQS) or significant adverse air
quality impacts would occur. The potential for new air quality impacts
to result from the Proposed Modifications was evaluated in the
Technical Memorandum. The Technical Memorandum concluded that
since the Proposed Modifications would not result in any significant
change in traffic volumes, which affect mobile source CO
DRAFT
3.5-9
June 21, 2010
concentrations, potential changes to air quality from the levels
previously analyzed would be insignificant. Therefore, the Proposed
Modifications would not result in any new significant adverse air
quality impacts and no violations of NAAQS are anticipated.
The FEIS demonstrated that the Project would not have the potential to
generate any significant adverse impacts associated with forest
fragmentation or arising from stormwater management. The Project has
been designed to be in compliance with all regulatory requirements,
including those set forth by the NYSDEC in their Stormwater
Management Design Manual (The Manual) and Stormwater
Management Reports have been developed which include plans and
supporting calculations for proposed stormwater management facilities.
The stormwater management practices will prevent the Project from
generating significant adverse environmental impacts associated with
stormwater management and will meet or exceed requirements
contained in The Manual. The Proposed Modifications would be
undertaken pursuant to the same stormwater management practices and
meet or exceed the requirements in the Manual. As documented in the
Technical Memorandum and the SDEIS, the stormwater management
practices confirm that the Proposed Modifications do not have the
potential to generate significant adverse stormwater impacts. Please
refer to Chapter 3.6, Hydrology and Stormwater, herein for additional
information on project related stormwater runoff and its management.
Comment 5-8:
The SEIS admits that "Development south of Mountain Lake may result
in increased competition for nest sites and breeding territories by
reducing the amount of interior forest and increasing edge habitat" and
that "Low-density development, minimal clearing around the
development, and use of native vegetation in landscaping should further
reduce any potential impacts of development." This statement ignores
scientific fact. Does the developer think the birds will simply move into
people's yards? Impacts on forest interior birds -loss of habitat, forced
evacuation - are admitted, but assumed to be insignificant. The domino
effect of a 21-acre hole in an intact unfragmented forest would far
exceed the 21 acres development footprint. Studies of forest
fragmentation have indicated zones of forest interior species loss as
much as five or six times the area of disturbance, with interior holes (as
proposed for Mountain Lake) causing a relatively greatest area loss of
affected bird species due to the penetration of impacts (including
predators and competitive species) radially from the perimeter of the
disturbed area (Kimber and Lamberson 1999. Fahrig 1999. Fahrig
1997). (Barbour 12/1/09)
Response 5-8:
As previously stated, the assumption which forms the basis for the
comment – that the Southern Tract is itself an unfragmented forest or is
part of a larger unfragmented forest – is incorrect. In that regard, please
refer to Response 5-6. The development of the residential neighborhood
in the vicinity of Mountain Lake will not significantly contribute to the
loss of critical habitat as suggested by the commenter. Although a 21acre development area is proposed, the literature has shown that
June 21, 2010
3.5-10
DRAFT
providing unfragmented forest and forest islands can still provide
suitable habitat for interior forest species. Forest fragmentation and its
impacts on “area sensitive neotropical migrants” have been and
continue to be a topic of considerable scientific debate. The literature
overwhelmingly supports the position that large forested parcels, typically
larger than 240 acres, are required to provide forest-interior birds with
habitat that may be considered significant to the species. Furthermore,
much of the discussion in the literature concerning this issue involves the
size of a woodlot required to increase either the nesting success or the
probability of observing forest-interior birds. Some of the studies evaluate
the actual acreage of the woodlot, while other studies evaluate only the
size of the core area. A core area is that portion of a woodlot that is located
a certain distance from an edge. The core area is often identified as those
portions of a woodlot located more than 100 meters (330 feet) from an
edge (Temple, 1986). However, the core area may also be defined as that
portion of a woodlot located more than 200 meters (650 feet) (Temple and
Cary, 1988 as cited in Trine, 1998) or more than 300 meters (980 feet)
from an edge (Van Horn, et al., 1995) depending on the region or the bird
species involved. The New Jersey Landscape Project Mapping (2004)
identifies core forest habitat as occurring 90 meters (290 feet) from the
forest edge. However, it also identifies the minimum core breeding habitat
for area-sensitive species as small as10 hectares (24.7 acres). A study by
Whitcomb, et al. (1981) found forest breeders to be rare on small 1-4
hectares (2.47 –12.35 acres) forest islands, common on intermediate forest
islands 6-14 hectares (14.82-34.58 acres), and abundant on what he
identified as large forested tracts greater than 70 hectares (172.9 acres).
Generally speaking, the larger the woodlot, the larger the core area.
However, small woodlots still provide appropriate and likely vital habitat
as this resource becomes more limited, as illustrated in the following
discussion regarding probability of observing several typical forest interior
species.
The literature on three common forest interior avian species identified on
the Southern Tract, Ovenbird, Veery, and Scarlet Tanager, indicates that
even smaller parcels can and do provide habitat for these species. Temple
(1986) indicates that the probability of observing an Ovenbird in a forest
fragment with a core area of 0-10 hectares (0-25 acres) is 10 percent, with
a core area of 11-100 hectares (27-250 acres) 39 percent, and with a core
area of greater than 100 hectares (250 acres) 100 percent. For Veery the
numbers are 20 percent for a core area of 0-10 hectares (0-25 acres), 32
percent for a core area of 11-100 hectares (27-250 acres), and 88 percent
for a core area greater than 100 hectares (250 acres). For Scarlet Tanager
the numbers are 20 percent for a core area of 0-10 hectares (0-25 acres),
100 percent for a core area of 11-100 hectares (27-250 acres), and 100
percent for a core area greater than 100 hectares (250 acres).
As documented in the DSEIS, the New Jersey Highlands Council’s
adopted Highlands Regional Master Plan defines Core Forest Habitat as
the forest community excluding a 300 foot buffer from any adjacent
development (altered land or roads). Figure 5-3 of the DSEIS depicted the
core habitat in the area surrounding Mountain Lake and the portions of
that habitat that would be disturbed by the proposed development as well
DRAFT
3.5-11
June 21, 2010
as the portion that would be affected by a 300-foot buffer applied to the
area of disturbance. Multiple comments on this original figure and the
calculations related to these areas were received. To address these
comments, a revised figure has been assembled using the most recent GIS
data and GPS techniques available. All areas related to existing
development and the associated 300-foot buffer are now included. With
the 300-foot buffer applied to the existing development, existing core
habitat measures 318 acres (see Figure 3.5-1 herein). As shown on this
Figure, development of the Mountain Lake area would remove
approximately 31 acres of Core Habitat. In addition, approximately 39
acres would be affected by the 300-foot buffer extending from the
proposed development area. Although the area within the 300 foot buffer
would remain wooded, the proximity of the adjacent development may
decrease the suitability of these areas for forest interior species.
Approximately 246 acres of the site, extending from Mountain Lake to the
north and west of the Mountain Lake development area would remain as
interior forest habitat. This preserved Core Forest Habitat is in addition to
the preservation of other large tracts of land associated with the Tuxedo
Reserve project, including the Northern Tract and Fox Hill Tract. In
addition, 33 acres of off-site Core Habitat currently exist west and north of
the protected areas on-site. This off-site habitat is directly connected to the
Core Habitat on the Tuxedo Reserve property. However, it is
acknowledged that unless these 33 acres are in public ownership, these
lands could be developed in the future, eliminating its core habitat
benefits.
While the addition of a 31-acre development area within the Mountain
Lake region may reduce the habitat available for forest interior species,
these species are expected to continue to occur in the forested areas that
will remain elsewhere within the Southern Tract and other open space
areas both on and off of the Project Site.
Comment 5-9:
When you put upland development between two major wetlands, you
are taking away key habitat. The well done habitat studies identified all
types of creatures in the vernal pools but their conclusions are the
opposite of what you should conclude. This is a key site and if you want
to preserve the natural environment you wouldn’t build on it. It would
be much better preserved as a key link between Sterling Forest, the
Ramapo River watershed, and Harriman Park. The greater Sterling
Forest has been identified as a critical treasure of the highland region
that we have been working for decades to preserve. (Welch)
Response 5-9:
To the extent this comment addresses forest fragmentation and
interconnectedness with Sterling Forest; please refer to Response 5-6.
Insofar as this comment relates to the Proposed Modifications, a diverse
community of wetland dependent species associated with small isolated
vernal wetland habitats was identified and this identification was part of
the impetus to protect these vernal pools and increase upland setbacks
around these wetlands. Accordingly, residential units that would have
been located proximate to vernal pools have been relocated to an area
where potential adverse impacts to vernal pool dependant wildlife
June 21, 2010
3.5-12
DRAFT
would be reduced — in this case, the successional upland forest
community that characterizes the watershed divide between the Bog
Meadow wetland and Mountain Lake. As documented by numerous
years of study of the wildlife on the site, the primary vernal pool
dependant species habitats are closely associated with the on-site
wetland communities. In addition to habitat use, movement corridors for
many of these vernal pool dependant species follow the flow of water.
By developing the upland forest it is anticipated that there would be a
minimization of disturbance to this common habitat (upland forest)
while protecting the uncommon wetland ecosystems.
Comment 5-10:
We are becoming more educated and aware of the problems which arise
when too much development saturates any given area. We as Americans
are becoming more respectful of our land and others that inhabit it
besides ourselves, understanding the importance of the flora and fauna.
We as Americans understand that fragmenting our forests cause more
problems with bear, coyote, deer, etc in our back yards plus cause more
song birds, reptiles, etc to join the ever growing endangered species
lists.... (Brown)
Response 5-10:
To the extent this comment addresses forest fragmentation and wildlife;
please refer to Responses 5-6, 5-8 and 5-15.
Comment 5-11:
Despite the developers assertions to the contrary, a look at the map
reveals that some of the proposed buildings and roads would in fact
interfere with animal migration pathways. Some buildings encroach too
close to sensitive wetlands and vernal pools. (Horowitz 1/1/10)
Response 5-11:
As part of detailed environmental review conducted for this project and
specifically the work done in coordination with the NYSDEC with
regard to wildlife, the Project Sponsor has designed a plan that would
provide corridors for wildlife movement on and across the project site.
To this end, Primary and Secondary Habitat Corridors as well as Local
Migration Patterns were designed into the plan. Where these pathways
cross proposed roadways, a variety of physical measures to permit the
safe passage of wildlife were incorporated into the roadway design.
These measures include pipe/culvert crossings, habitat crossings,
arch/bridge culverts and sloped curbs. Please refer to Response 5-15 for
details on migratory pathways. With regard to encroachment upon
wetlands and vernal pools, none of the Proposed Modifications would
cause buildings or lots to be located closer to these resources than
would have been allowed pursuant to the Project Approvals.
Specifically, the Proposed Modifications would enhance protection of
wetlands by reducing disturbance and providing greater protection to
wetlands that function as vernal pools for amphibious species of special
concern. Please refer to Responses 5-9, 5-51 and 5-55 for additional
information on the avoidance of vernal pool and wetland habitat under
the Proposed Modifications.
DRAFT
3.5-13
June 21, 2010
VEGETATION
Comment 5-12:
On eastern hemlock, a key forest tree species, the SEIS says: "Because
the majority of hemlock trees in the Mountain Lake area are currently
infested with woolly adelgid, these hemlocks would likely die regardless
of development. The removal of infected hemlocks and proposed
avoidance of uninfected hemlocks would ensure the survival of this
species on the site." This is unscientific gibberish, wishful thinking, and
having it both ways (the hemlocks will die anyway, but their survival
will be ensured by development?). (Barbour 12/1/09)
Response 5-12:
The commenter does not dispute that the majority of the hemlock in the
vicinity of Mountain Lake are infested with wooly adelgid. Nor does the
commenter dispute that these trees are likely to die without treatment.
The woolly adelgid infestation occurred while the area in the vicinity of
Mountain Lake has been in its currently natural state. Thus, without any
development associated with the Project or the Proposed Modifications,
it is likely that the infested hemlocks will die. However, if the Mountain
Lake area development is authorized, then access to the infected area
would allow selective treatment of infected trees. In the absence of
development, hemlock survival will be at the mercy of the wooly
adelgid infestation levels.
Comment 5-13:
"As indicated in 5-1 b, the Proposed Modifications would also disturb
Appalachian oak heath, Appalachian oak sedge, acidic woodland, and
cliff and talus forested vegetative communities." Appalachian oak sedge
is a significant community in the Hudson Highlands, supporting a large
number of rare plant species, including Virginia snakeroot (S I, E),
woodland agrimony (S2, T), green rock cress (S2, T), Drummond's rock
cress (S2,T), smallflowered crowfoot (S2S3, T), violet wood sorrel 0,
stiff tick trefoil (Sl, E), blackmargined sedge (SIS2, E), reflexed sedge
(S2S3, E) and Wildenow's sedge (S2S3, T) (Mitchell et al 2003, Young
2008). In the VEGETATION section of Chapter 5, Natural Resources,
Appalachian oak-sedge is mischaracterized as containing mountain
laurel as a dominant shrub. In fact, mountain laurel is typically absent in
Appalachian oak-sedge. Its presence in a forest is an indicator of acidic
soil conditions and communities such as Appalachian oak-heath,
chestnut oak forest and pine-oak-heath forest, while Appalachian oaksedge belongs in the group of communities with neutral or alkaline
(calcareous) soils that includes limestone woodland and calcareous
cliff-and-talus. This difference is clear in the GIS database and
vegetation map created by REIS in 2007, where maple-leaf viburnum,
pale blueberry and witch hazel are correctly listed as dominant shrubs in
Appalachian oak -sedge, while mountain laurel, pale blueberry
(common to both) and black huckleberry are dominant in Appalachian
oak-heath. Yes, the community names are similar, but the difference is
significant. In the Hudson Highlands, geographic transitions between
acidic and alkaline soils can be abrupt or gradual, and typically are
visibly and reliably reflected in the vegetation (Barbour, personal
observations). Accurate descriptions of ecological ("vegetative")
June 21, 2010
3.5-14
DRAFT
5.26.10
0
250
500
750
1,000
Feet
Legend
Project Site
Approximate Distrubance Areas of Project Approvals
On-Site Core Forest Habitat Area to Remain Under Proposed Modifications (246 Acres)
Adjacent Off-Site Core Habitat Area Affected by Existing Development
300ft Buffer from Approximate Area of Project Approvals
New Disturbance Areas Associated with Proposed Modifications (31 Acres)
Core Forest Habitat Areas Affected by Proposed Modifications (39 Acres)
Adjacent Off-Site Unaffected Core Habitat Area (33 Acres)
300ft Buffer from Proposed Modifications
Existing Off-Site Disturbed Areas
On-Site Core Forest Habitat Areas Affected by Existing Off-Site Development (31 Acres)
300ft Buffer from Existing Off-Site Disturbed Areas
Figure 3.5-1
Core Forest Habitat Preservation
RELATED
communities are available at the New York Natural Heritage Program
website, in Ecological Communities of New York State (Edinger et ai,
2002). I am surprised that the project natural resources consultant did
not consult this standard source, and others easily "Googled." (Barbour
12/1/09)
These surveys would have been better planned and executed, and
probably more revealing, if on-site vegetative communities had first
been correlated with potentially occurring rare, threatened and
endangered species. For example, the SEIS says "the Proposed
Modifications would disturb Appalachian oak heath, Appalachian oak
sedge, acidic woodland, and cliff and talus forested vegetative
communities." All three are biologically significant and relatively rare
communities (Edinger 2002) in the Hudson Highlands, supporting a
high number of rare plant and animal species. These communities
should have been assessed and searched for associated rare species in
order to avoid impacts to these species and their habitats. (Barbour
12/1/09)
Response 5-13:
Identification of the various vegetative community types indicates that
multiple areas for each vegetative community type have been included
in the areas to be permanently preserved as open space under the
Proposed Modifications. However, in terms of additional vegetative
surveys, the vegetative communities that could potentially be impacted
by the new development authorized in the Proposed Modifications are
the same communities that are impacted under the 2004 Preliminary
Plan. Appalachian oak heath and Appalachian oak sedge are common
communities on the Southern Tract, and present both in areas proposed
for development as well as large portions of the areas to be permanently
preserved as open space under both the 2004 Preliminary Plan and the
Proposed Modifications. Both the acid woodlands and cliff talus
communities are largely located within areas to be permanently
protected as open space under the Proposed Modifications. As the
Proposed Modifications would permanently protect and preserve areas
containing all of the vegetative community types that are in the new
areas proposed for development in the Proposed Modifications, the
Proposed Modifications would not have the potential to generate any
significant adverse impact to vegetation. In other words, in the postdevelopment condition, there will remain sufficient areas of each of the
habitat types proposed to be disturbed so that significant adverse
impacts to these communities will not result. Since roughly 75 percent
of the Project Site will remain undisturbed, including corridors and
areas of each habitat type, significant impacts to any rare flora and
fauna is not anticipated.
Comment 5-14:
An invasive plant study and prevention plan should be done. Invasive
Japanese stilt grass is already present where Tuxedo Reserve road
construction has occurred for the new entrance road in Sloatsburg. The
stilt grass is spreading along a wooded area. (Welch)
DRAFT
3.5-15
June 21, 2010
Response 5-14:
As part of the overall management plan proposed for Tuxedo Reserve,
the planting of native vegetation will be a key component of
maintaining the Tuxedo ecosystem. The control of stilt grass and other
invasive species will be initiated with the commencement of land
clearing and construction. In concert with the erosion and sediment
control effort as will be required by NYSDEC as part of the SPDES
permitting program, disturbed areas will be revegetated as required by
those permits thereby minimizing the potential for erosion as well as
colonization by invasive plants.
WILDLIFE
Comment 5-15:
When Tuxedo Reserve began to implement the approved plan for the
North Ridge section, they found that their experts were not so expert.
They found that they could not build the number of units they expected.
The land could not hold those numbers. Rather than decreasing the
number of planned units they looked around to find the place to put the
superfluous. They put them in land that had previously and
appropriately been left as open space. It was open space because it is on
land between Mountain Lake and a bog that serves a very unique
important wildlife connection between the two water bodies. The SEIS
states that a different area, the Western boundary, would become the
wildlife corridor, but the area they discuss, where they will not build,
has steep ridges which will make it useless for such a wildlife corridor.
(Scher)
(Page 5-8: Wetlands) The DSEIS states: "Under the 2004 Preliminary
Plan, the area south of Mountain Lake was part of a contiguous open
space area that provided a connection between Bog Meadow and across
Mountain Lake connecting the two NYSDEC wetland systems. Under
the current plan, the open space connection would still be maintained,
but would be concentrated along the western boundary of the Southern
Tract." It is interesting that the DSEIS utilizes the phrase "open space
connection" rather than "wildlife corridor." While it is correct that a
band of open space will indeed exist in the location noted, the use of the
word "connection" is very misleading, in that it might imply a
functional connection for wildlife, or even for potential trails. Such an
implication, however, ignores the very steep ridge line that passes
through this open space, which renders it useless as a corridor for
amphibian passage between Mountain Lake and Bog Meadow, both
NYSDEC wetlands. Essentially, by pointing to the "open space
connection", the DSEIS has dismissed the impact of the Mountain Lake
development on this important wildlife corridor, providing no real
analysis of the impact. The DSEIS should provide a clear analysis of
this impact, and include consideration of not putting any housing units
within the area most utilized by wildlife. The potential impact on
amphibians should be particularly highlighted. The provision of tunnels
under the roadways for wildlife passage may provide some mitigation,
but will not completely compensate for this impact. (Gross 12/31/09)
June 21, 2010
3.5-16
DRAFT
(Page 8-3, Natural Resources) The DSEIS states that habitat corridors
would be avoided under the Project with the Proposed Modifications,
but this is untrue. The area proposed for the Mountain Lake
neighborhood is one of the most important habitat corridors on the
property, allowing passage between Mountain Lake and Bog Meadow.
The development of this habitat corridor constitutes an impact that is
not present under the 2004 approved plan. Proposed measures, such as
culverts under roadways to allow amphibian passage, could never fully
mitigate the impact of placing a densely developed residential
neighborhood in the middle of this habitat corridor. (Gross 12/31/09)
A directional arrow ostensibly indicating the migration path veers
northwest up a steep cliff, challenging small, earthbound wildlife to the
equivalent of Hannibal crossing the alps. Snakes, salamanders and
shrews are not birds, or elephants. Moreover, there is not even a
suggestion in either the FEIS or the SEIS that any actual study of animal
movement was conducted. EcolSciences cannot claim to know what
paths particular groups or species of animals actually follow. The arrow
reflects an unfounded assumption, which is in fact illogical and
scientifically unsound. (Barbour 12/1/09)
Response 5-15:
Initially, it should be noted that the comment does not accurately
describe the North Ridge Subdivision or its evolution. To date, there has
been no implementation of the approved plan for North Ridge. Rather,
when the Developer developed detailed engineering plans for the North
Ridge Subdivision based on the Preliminary Plan approved in the
Project Approvals, the Developer’s design team was able to develop a
plan that reduced land disturbance by relocating some of the lots to an
area now known as Vernon Road. None of the development from the
redesigned and approved North Ridge Subdivision was placed in the
area between Mountain Lake and the bog referred to in the comment.
The Proposed Modifications do propose development in the area
referred to in the comment. The reasons for this proposed development
are accurately set forth in the SDEIS project description.
The migratory corridors identified on-site represent potential pathways
over which wildlife species can travel to avoid proposed alterations in
habitat. As documented in the DSEIS, “[t]he primary habitat corridors
follow the large swaths of land that would be preserved along the
wetland corridors that traverse the site. These wide areas are the largest
potential pathway through the site. The secondary habitat corridors
follow narrower wetland corridors and tributaries.” This is borne out by
numerous observations on multiple project sites indicating the greatest
concentration of wildlife tracks will most often be found along
wetland/water corridors. Amphibian corridors particularly will remain
in close proximity to wetland habitats. Figure 5-6 of the SDEIS shows
that “…the Proposed Modifications include the preservation of habitat
corridors.” Wildlife corridors are designed to allow movement of
wildlife species from one area of appropriate habitat to another. For
species with very small home ranges, this may mean providing a buffer
around a core habitat, for example providing open space buffers around
wetlands and vernal pool habitats will protect many species of
DRAFT
3.5-17
June 21, 2010
amphibian and reptiles. For species that have adapted to co-habitating
with humans, for example raccoons, opossums, squirrels, and red fox,
providing safe passage such as culverts under roadways and wooded
tree lines may be sufficient. Other species may require no set corridor,
such as most avian species, which could benefit from the resting,
roosting, nesting areas that a protected corridor may provide. Finally
there are species that avoid humans, and have large home ranges of
which the site is only a small portion of their habitat, such as bobcat,
timber rattlesnake, and black bear. These species can and will utilize the
vegetative cover provided by the contiguous open space offered by the
current development scenario, as they move onto and through the site.
In addition to the available literature on copperheads and rattlesnakes,
the data obtained from the on-site vernal habitat migratory survey data
confirm amphibian movement across areas of steep rock faces.
Amphibians along with other animals are not averse to travelling over
steep rock covered terrain even in undeveloped areas.
Although site specific surveys were not conducted for all species that
may utilize the property, both the scientific literature and the project’s
environmental consultant’s personal experience on this site and
hundreds of other sites confirm that most species follow the pathway
that will allow them to avoid development. The exception being those
species that are tolerant and actually seek human habitats including
coyote, raccoon, opossum, white tail deer, black bear, and Cooper’s
hawk.
Thus, wildlife movement corridors are areas where greenways provide
movement between larger habitat areas. These corridors may include
greenways through uplands utilized by songbirds and large mammals.
Often small mammals, reptiles and amphibians are dependent on
wetlands or open water habitats following these features to contiguous
habitats.
The area between Mountain Lake and Bog Meadow is characterized by
upland woods. For most species, including avian species, reptiles, and
large and small mammals, this area would continue to provide a wildlife
corridor, especially given the small footprint, low-impact design
standards required for the lots in the vicinity of Mountain Lakes. The
adjacent slopes are also available as a reasonable alternative for those
species less tolerant of human development. As described above, many
such species are not impeded by the presence of steeply sloped land.
In the case of amphibian species, it is unlikely that an upland route
between two wetland watersheds would be the selected route,
particularly since the wetlands are located over 1,000 feet apart.
Research on amphibian species associated with wetlands and vernal
habitats show movement patterns between wetland breeding areas and
associated wintering or dispersal habitats can range from zero, those
species that rarely leave the wetlands, to as much as 300 meters (984
feet), mole salamanders that over winter in uplands. However, most
amphibian species range less than 1,000 feet from their breeding
habitat. Therefore, it is likely that most amphibians would remain close
to their respective wetland habitats and would not utilize the wildlife
June 21, 2010
3.5-18
DRAFT
corridor between Mountain Lake and the Bog Meadow wetlands. Please
refer to Response 5-8 for additional information on core habitat.
It is important to note that the large tracts of land proposed for
protection in the Mountain Lake Development provide habitat sufficient
to meet the needs of the larger animals moving onto and through the
project site. To minimize impacts to animal movement through the site,
the project plan includes low impact development with a compact
design and small yards. Additionally, on a smaller scale, movement of
fauna within the Project Site is maintained through the use of physical
practices including culverts under roads. In the context of the broader
regional migration/regional corridor, the Hamlet of Tuxedo and other
existing manmade impediments disconnect the project site from larger
off-site parks and protected habitats.
For all of these reasons, no significant adverse impacts to wildlife are
anticipated from the proposed development in the vicinity of Mountain
Lake.
Comment 5-16:
On the same page, the section under Wildlife states "species are
generally tolerant of limited human activity as long as undisturbed
habitat would remain. ... [I]t is anticipated that wildlife species would
likely continue to utilize the surrounding undeveloped uplands." So the
argument here is that Tuxedo Reserve would be sited within thousands
of acres of unfragmented forest, and so taking wildlife habitat is
justified. What has been preserved at considerable public expense does
not mitigate loss here. (Wooters)
Response 5-16:
Regarding the assertion that the Proposed Modifications would
adversely impact unfragmented forest areas, please refer to Responses
5-6 and 5-8. The reference to undeveloped uplands being available to
wildlife species is correct and is confirmed by the fact that with the
Proposed Modifications the Project would preserve over 75 percent of
the entire Tuxedo Reserve Project Site as permanent open space.
Comment 5-17:
Figure 5-6 shows wildlife connectivity. However, the Design
Guidelines: Landscape Regulating Plan p. 62 shows high density urban
development on the corridor. Fig T-4.2 (p. 54) illustrates this density of
housing. I live in such an urban area. I can attest to the fact that there is
no such diversity of wildlife in my backyard. There would not be in the
so-called wildlife corridor in Tuxedo Reserve if it were built...I have
read the list of vertebrates in Appendix D natural resources. There is no
such biodiversity in my backyard and there will not be were this project
to go to completion. With the sixth great extinction already begun, I
question the wisdom of taking such biodiverse terrain for development.
(Wooters)
The EIS itself shows, if you look at the maps, that some of the proposed
buildings do interrupt wildlife migration. (Horowitz)
Response 5-17:
DRAFT
The landscape regulating plan referenced in the comment does not
describe an area of high density residential development. Rather, it uses
3.5-19
June 21, 2010
the vernacular “high density” in reference to major roads within the
project site. The only actual high density development in the Project
with the Proposed Modifications would be located in the Commons,
which is not adjacent to the open space corridor. Tuxedo Reserve has a
diverse wildlife community associated with a primarily second growth
forest ecosystem and with the preservation of over 75 percent of the
entirety of Tuxedo Reserve as open space, Tuxedo Reserve would
continue to provide habitat for the species now inhabiting the Project
Site. Providing open space corridors to direct wildlife species through
development areas has been shown to be an effective means of enabling
wildlife species to traverse through areas of development. It is
anticipated that species intolerant of human activities would not remain
in developed areas because corridors will be provided allowing species
to move through the development to areas preserved as open space onsite and beyond. It is acknowledged that existing natural habitats will be
altered and some converted to development under the Proposed
Modifications. This would be expected to modify the size, composition
and distribution of existing species populations. For example, as
documented on page 5-7 of the 2009 SEIS, “[f]orest fragmentation
within the developed portions of the Southern Tract can be expected to
result in a shift in songbird diversity from interior forest species to edge,
shrub, and human-tolerant species. This was anticipated as part of the
original Master Plan approval.” However, since roughly 75 percent of
the project site will remain undeveloped and areas of all existing
habitats will be preserved under the post-development condition,
significant impacts to the regional populations of any resident or
transient species utilizing the project site are not expected.
Comment 5-18:
In 2007 I actually worked on the Tuxedo Reserve site, field checking
community boundaries for the firm of REIS, led by Dave Washburn,
who was hired to produce a community map and GIS of the site, so I
got very familiar with the Tuxedo Reserve site, walking around
confirming these habitat boundaries. And I think this is a site that's as
grand and biologically diverse as any state park that I've explored in this
area, and I'd say it's even more, you know, biodiverse and beautiful than
the Sterling Forge site which was the last addition to Sterling Forest.
(Barbour)
Response 5-18:
With the Proposed Modifications, the Project would preserve more than
75% of the Tuxedo Reserve Project Site as permanent open space in
which much of the extant biodiversity would be preserved. There are no
plans for public acquisition of the property for a State Park or any other
public purpose.
Comment 5-19:
In the 2004 plan, there were no houses placed near Mountain Lake,
which was to be left as a beautiful natural area. Now homes are
proposed adjacent to the wetland to the south of the Lake and a stream
corridor. This would block an important wildlife corridor between
Mountain Lake and the wetland to the south. In addition, the riparian
June 21, 2010
3.5-20
DRAFT
corridor of the stream would be severely narrowed where it is proposed
to be confined between houses. (Welch)
Response 5-19:
A riparian corridor has been provided with a minimum 50-foot buffer
(as requested by NYSDEC) along the length of the corridor through the
development area. Road crossings of the stream will be open bottom
box culverts, as recommended by the NYSDEC in their “Stream
Crossings: Guidelines and Best Management Practices” publication to
allow aquatic and terrestrial movement along the stream. Please also
refer to Response 5-15.
Comment 5-20:
Disturbed environmentally sensitive areas, for example, Mountain Lake.
The proposed disturbance of vegetation, rook outs, increased
impervious surfaces are at the expense of the flora and fauna in
existence. Our unique state park lands, woods and wetlands will be
increasingly valuable. Why would we knowingly endanger them and the
related flora and fauna? (Steele 11/20/09)
Response 5-20:
The Technical Memorandum and the DSEIS confirm that the Proposed
Modifications, generally, and the proposed development in the vicinity
of Mountain Lake, specifically, would not have the potential to generate
any significant adverse impacts to flora and fauna. The comment does
not state how the Proposed Modifications would endanger state park
lands, woods, and wetlands. There are no state park lands, woods or
wetlands adjoining or proximate to any of the areas that would be
developed pursuant to the Proposed Modifications that were not
proposed for development as per the Project Approval. The Proposed
Modifications would not have the potential to generate any significant
adverse impacts to state park lands, woods or wetlands.
ENDANGERED, THREATENED, AND SPECIAL CONCERN SPECIES
Comment 5-21:
Another omission is the golden winged warbler which is a species in
dramatic decline. The Sterling Forest is considered one of its remaining
strongholds in the northeast. There is terrific habitat on this property.
(McGowan)
Response 5-21:
Golden-winged warbler habitat was assessed during the wildlife surveys
conducted for this project (refer to the 2003 FEIS).
The golden-wing warbler is a species associated with the juxtaposition
of forest edge, woody field, and herbaceous field communities. 1 This is
supported by the New York State DEC Fact Sheet on this species,
which states that” [t]he golden-winged warbler is a habitat specialist
and prefers to nest in early successional fields with a combination of
shrubby and open areas within the territory.2 As documented on page
1
Cornell Lab of Ornithology, Golden-winged Warbler Atlas Project Accessed on May 14, 2010 from
http://www.birds.cornell.edu/gowap/habitat.html.
2
New York State Department of Environmental Conservation (NYSDEC), 2010. Golden-winged Warbler
Fact Sheet. Accessed on May 19, 2010 from http://www.dec.ny.gov/animals/59568.html.
DRAFT
3.5-21
June 21, 2010
25-102 of the 1999 DSEIS, “…the Tuxedo Reserve site is characterized
primarily as a closed canopy upland and forested wetland community.
This community does not provide appropriate breeding habitat for the
golden-winged warbler.”
The only portion of Tuxedo Reserve that is characterized by the
successional field vegetation preferred by this species is the power line
right-of-ways that cross through the Southern Tract. Maintenance of
these right-of-ways is controlled by the power company, not Tuxedo
Reserve. The limited development proposed in the wooded portions of
the Southern Tract will not impact the potential habitat for the golden
wing warbler.
Comment 5-22:
There are some species listed that are unusual which is either
misidentification or some pretty exciting finds. One of them is the
northern leopard frog, which is a very common species but this would
be really the southernmost occurrence for that species. There is a
northern and southern leopard frog. The Least Shrew is also listed as on
the property. That is a species I have looked for twenty years. It’s not
known in New York State. It’s listed in historic records from 1900 and
1930 so if its turns out to be on the property, that is New York’s most
endangered mammal. (McGowan)
Response 5-22:
The referenced listing for northern leopard frog has been re-evaluated
and it is believed to be an inaccurate identification from a report
completed in 1995. Although considerable survey effort has been
conducted post 1995 to date, no other sightings of the northern leopard
frog have occurred. As noted by the commenter, the northern leopard
frog would not be expected to occur on the Tuxedo Reserve site due to
the site’s location outside of the normal range of this species. In terms
of the least shrew, these purported sightings were associated with the
vernal pool migration studies conducted on the property in 2007 and
2008. The primary purpose of these surveys was to focus on the
migratory movement of the marbled salamander between the breeding
vernal habitat and upland habitats, and the identification of other reptile
and amphibian species that may utilize the wetlands. The surveys were
conducted by interns, generally with graduate level coursework in
herpetology. Although their focus was not small mammals, a field key
was provided to the interns in the field to aid in the identification of
incidental mammalian species caught in the pitfall traps. The first shrew
species identified on this chart was the least shrew. The chart provided a
brief summary of the species’ habitat and characteristics, without
identifying its rarity in New York or stressing the preferred habitat for
the species, that being successional fields/open meadows. Only one of
the interns had familiarity with small mammal trapping and on the days
he checked the traps, no least shrews were identified. Interviews with
the remaining interns confirm that to the extent there was an attempt to
identify the shrews to species; the sole basis for the purported
identification was the provided field charts. No specimens were
collected, nor were any submitted to an expert for tooth or skeletal
identification, critical to making a positive identification that the shrews
June 21, 2010
3.5-22
DRAFT
identified as least shrews were, in fact, actually least shrews. The vernal
habitat surveys were all conducted in dense forest communities, not the
preferred habitat for least shrew. All of the shrews caught were
incidental captures by interns whose focus and expertise was in reptile
and amphibian identification. Given the status of the least shrew in New
York as being State Historic (SH) with no recent sightings, these facts
and circumstances lead to the conclusion that the identification of
multiple least shrew on-site during an amphibian survey was highly
likely the result of a misidentification.
Comment 5-23:
While the applicant states that Cooper's hawks do well in developed
areas, this may not be the case, at least, two Cooper’s hawks have died
in the last year from flying into windows in Sloatsburg. Cooper's hawks
are listed as threatened in nearby states, such as, New Jersey,
Connecticut, New Hampshire and Rhode Island. The National Audubon
Society included the Cooper's hawk on its Blue List of Imperiled
Species from 1971 to 1982 and in 1986 (the final year of the list). Wide
spread concern for this species is evident. (Welch)
Response 5-23:
Cooper’s hawk has been making a significant comeback in neighboring
States. The Cornell Lab of Ornithology identifies Cooper’s hawk as a
species of Least Concern (LC) due to their strong comeback in recent
years. Cooper’s hawk has been undergoing a steady recovery over the
past two decades and is now a common breeding bird in neighboring
New Jersey and throughout much of its northeastern range. The
continued success of this species has led Pete Dunne, the New Jersey
Audubon Vice President of Natural History Information and Director of
the Cape May Bird Observatory and a world-renowned ornithologist, to
surmise in 2009 that “very possibly, Cooper’s hawk is the most
common nesting diurnal raptor in the state (New Jersey Audubon,
Autumn/Winter 2009-10). In addition, the New Jersey Endangered and
Non-game Species Advisory Committee has unanimously voted to
delist the species and this process is now under review by the
appropriate regulatory authorities and is expected to be adopted.
This recovery may be attributable in part to the Cooper’s hawk ability to
nest, rest, and hunt within residential areas. Although bird-window
strikes may occur, Cooper’s hawk habitats often include residential
neighborhoods because of the opportunities for hunting in proximity to
bird feeders erected by people. Cooper’s hawks have been observed
scattering songbirds with some flying directly into nearby windows of
homes. The Cooper’s hawk then scavenges on the stunned or dead
birds. Unfortunately, on occasion, a Cooper’s hawk itself will fly into a
window chasing prey. The Proposed Modifications would not create
development that would have the potential to significantly adversely
affect Cooper’s hawks.
Comment 5-24:
DRAFT
The NYSDEC listed wetlands on the site are valuable highland's habitat
areas that require wide forested buffers to retain their habitat value by
preserving the integrity of the surrounding associated upland habitat
3.5-23
June 21, 2010
areas. The State minimum 100 ft. wide buffer is much too small for
affective habitat protection. Consider the case of the Red-shouldered
hawk, a species of special concern and a "Species of Greatest
Conservation Need," in New York State.
The SDEIS states Red-shouldered hawks were observed on numerous
occasions in the spring and fall of 2007 and 2008. Red-shouldered
hawks were primarily identified in association with the large NYSDEC
wetland SL-24 located in the southern portions of Phase 1 and the
northern portion of Phase 2. Based on observed pair bonding and active
defense of territory, it is likely that this species is nesting within this
large forested wetland." (Later the study states) "This wetland and its
associated 100-foot adjacent area are being preserved as open space;
therefore, impacts to this species habitat are not anticipated." (SEIS,
page 97)
However, the NYSDEC Fact sheet on Red-shouldered hawks states,
"The primary problem facing this species is loss of habitat. Since
European settlement in the 17th century and especially since the 19th
century, the favored closed canopy forests have been cut for logging,
agriculture, and urban and suburban development. Disturbances from
humans in the form of off-road vehicles, hunters, horseback riders and
suburbanites in general have pushed Red-shouldered hawks into the
deepest, wildest areas left."
While some of the proposed development around the NYS listed
wetlands areas are placed further away, some are at the edge of the
minimal 100 ft buffer. If built as proposed, the Tuxedo Reserve,
Southern Tract development would generate significant adverse impacts
on natural resources. (Welch)
Response 5-24:
June 21, 2010
The matters raised by the commenter were fully analyzed in the FEIS.
The Proposed Modifications do not propose any intrusion into either
NYSDEC Wetland SL-24 or its NYSDEC mandated 100-foot adjacent
area. The Proposed Modifications have been designed to minimize
impacts to wetlands and preserve, to the greatest extent possible, the
100-foot adjacent area on NYSDEC wetlands. Red-shouldered hawk, a
species down graded from "Threatened" to "Special Concern" by
NYSDEC in 1999, has been identified in association with NYSDEC
Wetland SL-24. Since the commenter opines that “[t]he State minimum
100 ft. wide buffer is much too small for affective habitat protection”, it
is important to note that the Proposed Modifications would maintain a
buffer that would range from a minimum of 100 feet to roughly 400 feet
in certain areas thereby providing significantly more area than the 100
foot State required buffer. Furthermore, it is noted that Tuxedo Reserve
is typical of the areas referred to on the NYSDEC Fact Sheet, in which
disturbances such as logging, off-road vehicles, horseback riding, and
hunting historically have disturbed Red-shouldered hawk habitats. Even
with such prior human activities, Red-shouldered hawk continue to nest
and otherwise utilize the habitats associated with Wetland SL-24. One
of the noted attributes of Red-shouldered hawks is their affinity for
appropriate habitat in the long term. As presented in the technical
literature and as observed in the field, this species will remain in an area
3.5-24
DRAFT
if some of their critical habitat remains. In one instance, the birds
continued to return to a nest tree even though all surrounding areas were
logged. As the Proposed Modifications would preserve NYSDEC
Wetland SL-24 and the associated required 100-foot upland adjacent
areas, as well as other large open space areas on the Project Site,
Tuxedo Reserve would provide habitat for this species to continue to
nest, hunt, and raise young.
Comment 5-25:
There is a wildlife corridor—not identified in the project studies—that
enters the TR property along a riparian corridor along a south to north
flowing stream draining from Delaney Swamp in Sloatsburg. A cooper's
hawk (Species of Special Concern) was seen flying over this area
towards the Tuxedo Reserve site in the fall of 2008. This corridor needs
to be identified on the plans. What is the ecosystem relationship
between Delaney Swamp and the project site? (Welch)
Response 5-25:
The referenced riparian corridor flows from the off-site Delaney swamp
through the parcel of land in Sloatsburg fronting on Route 17 on which
a portion of Quail Road would be sited. Figure 5-6 of the 2009 SEIS,
maps “Local Migration Patterns” in the area noted in the comment.
Larger Primary and Secondary Habitat Corridors, also depicted on this
figure, were not mapped in the area of this riparian corridor. Potential
impacts related to Quail Road were analyzed in the FEIS. The plan
assessed in that document incorporated arch/bridge culverts in each of
the locations the riparian corridor was to be crossed by the road. These
measures are meant to maintain wildlife movement through the area and
minimize impacts to local wildlife to the maximum extent practicable.
The location of Quail Road was subsequently approved by the
Sloatsburg Planning Board. The Proposed Modifications under review
in this document would not alter the minimal disturbance to this stream
corridor; no new or additional development is proposed along this
stream corridor or within the associated wetlands. See Response 5-23
regarding the Cooper’s hawk.
Comment 5-26:
On rare animals there are two I'd like to mention. The eastern box turtle
found on the site is a special concern species. That wasn't acknowledged
in the SEIS. And there is an incident in which an individual timber
rattlesnake, a New York State threatened species, was found and killed
on the site. This is a serious omission in the information, and it's also a
violation of the New York State D. E. C. recording procedures for their
threatened species. As far as the rattlesnake is concerned, the open,
rocky, ridges that are on the site, and some of the power line cuts, are
good basking areas for snakes, and the migratory corridors between Bog
Meadow and Mountain Lake may be a critical dispersal corridor for the
timber rattlesnake. It could also be critical summer foraging habitat.
(Barbour)
Response 5-26:
Eastern box turtle is classified as a Species of Special Concern and
should have been so identified as such in the DSEIS. The Proposed
Modifications would not cause any critical habitat for the Eastern box
DRAFT
3.5-25
June 21, 2010
turtle to be significantly adversely impacted. Indeed, as a habitat
generalist, the Eastern box turtle can utilize a variety of different habitat
types including wetlands, upland forest, successional field right-ofways, and clearings and the large amounts of open space being
permanently preserved on the Project Site would provide multiple
suitable habitats. Please refer to Responses 5-33 and 5-34 regarding the
Timber Rattlesnake.
Comment 5-27:
While I'd like to talk more about that, I'd also like to say there is no
mention of rare invertebrates in the rare animals report, and I found the
orange tip butterfly, which is a listed species here, and there could be
other rare butterflies and other insects on the site, but there were no
search for invertebrates, and on the Bog Meadow Mountain Lake
corridor, the corridors are not really discussed or defined. They are
basically just mapped, and in the 2004 preliminary plan this Mountain
Lake Bog Meadow corridor is shown as unbroken, open space, with no
development. And the current plan includes a 21 acre residential
development, and a corridor directional arrow with views northwest up
a steep cliff. This is not a corridor. It's just a challenge to small
earthbound wildlife. (Barbour 11/23/09)
As with rare plants Ecol Sciences did not assess vegetative communities
of the site in terms of known associations with state-rare invertebrates.
No searches for state listed invertebrate species were conducted.
(Barbour 12/1/09)
Response 5-27:
The falcate orange tip butterfly, while uncommon, is not listed as an
endangered, threatened, or special concern species. Instead, the State
has placed this butterfly on the “Watch List”, which identifies species
that “could become imperiled…or are ones for which we do not have
enough data to determine whether they should be actively inventoried”.
In either case, this species regulatory status is “U”, unprotected. Since
the falcate orange tip butterfly is not protected it was not, and would not
be, identified by the State as occurring on or in the vicinity of the
Project Site. As such, a separate survey specific to this species was not
conducted.
As documented in the 1999 DSEIS, the NYSDEC had no records of any
endangered, threatened or special concern species (plant or animal)
occurring in the study area. Regardless, numerous natural resources
studies were performed on the site by a number of qualified
professionals. These studies included those for the timber rattlesnake
and red-shouldered hawk as requested by the State. Through the course
of multiple meetings and years of coordination with the NYSDEC
related to the survey effort, no other protected species (plant or animal)
were identified for specific study. With regard to invertebrates in
general, during this coordinated effort, the NYSDEC did not require,
and the Applicant did not conduct an invertebrate survey as it was not
deemed warranted. Finally, the Modified Plan protects sufficient habitat
areas, such as the Fox Hill and Northern Tracts, as well as large portions
of the Southern Tract, to minimize to the maximum extent practicable,
significant adverse impacts to protected and sensitive natural resources.
June 21, 2010
3.5-26
DRAFT
Comment 5-28:
Open rocky ridges on the site appeared to be good basking areas for
snakes, and the "migratory corridor" between Bog Meadow and
Mountain Lake may be a critical migration and dispersal corridor for
timber rattlesnake, and also critical summer foraging habitat (Reinert).
With knowledge of this Threatened species occurring on the site, the
developer should have identified critical habitat for timber rattlesnake,
including potential den sites, basking sites, birthing sites, summer
foraging areas, and migration corridors. Other state-rare snakes likely to
occur on Tuxedo Reserve include eastern worm snake (Special
Concern), eastern hognose snake (Special Concern) and northern
copperhead (Heritage S3, moderately rare). (Barbour 12/1/09)
Response 5-28:
The Applicant has acknowledged the site’s potential to provide habitat
for numerous wildlife species. The Applicant has identified potential
corridors between the various open space areas to maintain
connectivity. The Plan provides mechanisms to both keep wildlife from
getting onto roads and provides corridors under proposed roads. Refer
to Responses 5-33 and 34 for information on timber rattlesnakes and
other State protected species. Refer to Response 5-15 regarding
migratory wildlife corridors.
Comment 5-29:
There is no mention in the SEIS of regionally rare animal species. The
Hudson Highlands is a globally recognized significant biodiversity area.
Species that are common or uncommon in other regions of New York or
adjacent states are significant in the Highlands because they are rare in
that region. Examples found on the Tuxedo Reserve site are northern
red salamander and northern leopard frog. These regionally rare species
(Kiviat and Stevens 2001) should be considered for conservation and
protection along with state-rare species. (Barbour 12/1/09)
Response 5-29:
“Rare” species is not a category of protection defined or recognized
under the New York State Endangered Species Act. The term “rare” is
used in the explanation of how the New York Natural Heritage Program
defines “endangered”, “threatened” or “special concern” species.
Species listed as endangered or threatened receive “notable legal
protection”. Species of special concern “warrant attention and
consideration but current information does not justify listing them as
either endangered or threatened.”
In the case of the Northern red salamander it is not listed either on the
active inventory species list or the watch species list of the New York
State Natural Heritage Program, indicating that it is not considered a
rare species. Furthermore, as previously noted in Response 5-22, it is
unlikely that Northern leopard frog occurs on the site since its historic
range is limited to areas much farther north.
Regardless, the Project with the Proposed Modifications would preserve
habitat suitable for the species referenced in the comment.
Comment 5-30:
DRAFT
On page 5-5 of the supplemental, it states that six species of special
concern, mostly amphibians, were found in the vicinity of Mountain
3.5-27
June 21, 2010
Lake, which is on the project site. On page 5-6 it states the above area
determined to be suitable for development; proposed roads, roadways,
et cetera, that would have minimum disturbance to existing wildlife
habitats. Thus the proposal for a future boating, swimming, including a
boat house, and beach, in spite of their acknowledgement of New York
DEC wetlands, and a hundred foot buffer, to protect this area. That's just
absolute nonsense. Are you going to put all that buffer land, with the
lawns facing the buffer lands, and all those chemicals and everything
else, going into the buffer land, one hundred foot into an area that they
themselves say is of special concern, at least the six species, and yet,
hey, men, this is for us. We're going to build a boat house and have a
beach and we will frolic and you can do what you want. Especially
when on page 6-11 they state, quote, "Any future use of Mountain Lake
for recreational purposes would undergo a separate environmental
review process." What gives? There seems to be quite a bit of flaws
throughout this supplemental and the above is just one example.
(Yrizarry)
Response 5-30:
Page 5-5 of the SDEIS does not indicate that the special concern species
were identified in the vicinity of Mountain Lake. Rather it indicates that
the six special concern species have been identified on the Southern
Tract.
Site development in the vicinity of Mountain Lake has been designed in
accordance with all applicable laws regulating New York State
protected wetlands and adjacent areas. The comment assumes that the
Proposed Modifications call for recreational use of Mountain Lake. This
is erroneous. The Project with the Proposed Modifications does not
propose any recreational use of Mountain Lake. Please refer to
Responses 1-11 through 1-13 in Chapter 3.1, “Comments and
Responses, Description of the Proposed Modifications,” regarding the
actual proposed development in the vicinity of Mountain Lake. As a
condition of any approval that may be granted, recreation use of
Mountain Lake, its adjoining wetland and wetland buffer shall be
prohibited.
Comment 5-31:
Natural Resources. NYSDEC has recently issued new guidelines for the
study of potential impacts on threatened and endangered species. These
guidelines set forth appropriate considerations and study parameters
regarding a number of species with potential ranges/habitats in or
around the project site. These guidelines have largely been developed
subsequent to the original DEIS/FEIS and, therefore, should be
considered in the SDEIS. Of particular note are the guidelines for
potential impacts to the Timber Rattlesnake, Northern Cricket Frog,
Indiana Bat and Bog Turtle. The current SDEIS lacks any reference to
these NYSDEC guidelines. (Sterthous)
Response 5-31:
The Applicant’s ecological consultant has reviewed the referenced draft
guidelines issued by NYSDEC in 2009. The guideline for the State
endangered timber rattlesnake focuses on methods to protect timber
rattlesnake den sites. In 1995 and 1998, the Applicant conducted den
June 21, 2010
3.5-28
DRAFT
surveys, as requested by the NYSDEC, confirming the absence of
timber rattlesnake dens on the Southern Tract. In addition, in 2003, the
Applicant conducted a timber rattlesnake survey on the Northern Tract
to locate and track timber rattlesnakes utilizing the Tuxedo Den. This
effort was required by and coordinated with the NYSDEC. Based on the
data collected during these surveys, the Proposed Modifications would
not have the potential to generate any adverse impacts to this identified
den.
With regard to the remaining species noted in the comment, Northern
cricket frogs, a wetland dependent species, were not identified during
any of the on-site wetland surveys. Surveys based on the new draft
guidelines for this species are therefore not required. As for the Indiana
bat, a mist net survey was conducted in accordance with the USFWS
protocols; no Indiana bats were found. Finally, bog turtle habitat is not
present on the site. Therefore, the survey methodology as documented
in the draft guidelines for this species does not apply to the Project with
the Proposed Modifications.
Comment 5-32:
As a result of recent court decisions, wildlife assessments required by
the courts now include field surveys for threatened and endangered
species, as well as species of special concern, and the absence of any of
these species in the Natural Heritage Service database is not dispositive
of whether such species may exist within the project site. Again, this
issue should be addressed in the SDEIS as a new requirement since the
original DEIS/FEIS for demonstrating a hard look. (Sterthous)
Response 5-32:
Years of on-site field work, including but not limited to the habitat,
snake and amphibian surveys, have been vetted with the NYSDEC. As
documented in the project’s 1999 DSEIS, based on conversations with
the NYSDEC as early as 1995, the site was evaluated for the New York
State-Threatened timber rattlesnake and red-shouldered hawk. In
addition to species identified by the NYSDEC as being of potential
concern on-site, appropriate habitat-specific wildlife surveys were
conducted on-site for other protected vertebrate species meeting the
hard look requirement of the SEQRA. Based on habitat suitability, the
site was assessed for additional species classified by the NYSDEC as
Special Concern within New York State; including but not limited to
Cooper’s hawk, eastern bluebird, spotted turtle, wood turtle and spotted
salamander. The results of these and all other flora, fauna and habitat
surveys, including data collected and incidental observations made by
the environmental consultant, have been shared with the NYSDEC and
presented for the environmental review record in past and current
reports.
TIMBER RATTLESNAKE
Comment 5-33:
DRAFT
New York State’s Endangered Species Act was enacted in 1972 to
protect species whose continued survival is in jeopardy (e.g., the timber
rattlesnake). It was amended in 1979 and 1981 and now protects
3.5-29
June 21, 2010
threatened species. Recent Supreme Court and Appellate Division
decisions in State vs. Sour Mountain Realty, Inc. affirm New York
State’s Endangered Species Act (ESA), recognizing that:
1) Adverse modification of habitat may jeopardize the continued
existence of endangered species;
2) The definition of disturbing, harrying or worrying in the ESA
includes habitat modification;
3) Habitat modification and/or degradation includes disruption and
prevention of normal dispersal, movement, foraging, mating, and
migration patterns; and
4) Habitat modification may constitute an illegal take of an endangered
or threatened species under the ESA.
Because the timber rattlesnake is present near or in the proposed project
area, it is almost certain that project construction will irreparably harm
and modify critical habitat required for the species. Numerous
developmental activities have the potential of modifying rattlesnake
habitat as a result of site grading, living on the project site, and related
activities. Some examples include 1) fragmentation of forested
landscape and existing species habitat via tree removal, 2) modification
of foraging and migratory pathways, 3) infringement into and alteration
of wetland buffers and cover vegetation, 4) modification of landscape
via cut and fill and as required for road and home construction, 5)
contact with homeowners and dogs in critical habitat may result in
rattlesnake deaths, 6) modification of sub-basins, runoff, and shallow
groundwater flow may modify the habitat that now comprises a healthy
ecosystem, and 7) chemical additions (e.g., pesticides, herbicides, road
deicing agents) throughout the habitat may significantly disrupt the
existing habitat. The Tuxedo Reserve site may provide one of the last
strongholds of the timber rattlesnake. On behalf of the Tuxedo Land
Trust, I recommend full study, documentation, and analysis of the
Tuxedo Reserve site relative to rattlesnake habitat suitability and use
before advancing to the FEIS. (Rubin/Tuxedo Land Trust)
Response 5-33:
In 1995 and 1998, the Applicant conducted den surveys, as requested by
the NYSDEC, confirming the absence of timber rattlesnake dens on the
Southern Tract. In addition, in 2003, the Applicant conducted a timber
rattlesnake survey on the Northern Tract to locate and track timber
rattlesnake utilizing the Tuxedo Den. Timber rattlesnake surveys of
both the Southern and Northern Tracts have been completed in
accordance with the protocols and directions of the NYSDEC. The
NYSDEC has not requested any additional timber rattlesnake surveys of
the Project Site. Moving forward, the Applicant will be required to meet
all regulatory agency requirements to ensure that the proposed
development contains required protection measures for all protected
species.
Comment 5-34:
Wildlife surveys of the project site did not identify any threatened or
endangered species (SEIS, pages 5-5 and 5-10), inclusive of the area in
the vicinity of Mountain Lake. In keeping with these surveys, the SEIS
fails to identify the timber rattlesnake, a threatened species protected by
New York State’s Endangered Species Act of 1972, as being present
June 21, 2010
3.5-30
DRAFT
on-site. It is my understanding that a timber rattlesnake was sighted,
captured, and eaten on site, possibly northwest of the Bog Meadow
wetland. Development of the Tuxedo Reserve project will almost
certainly infringe on important rattlesnake basking and, perhaps, den
sites – including suitable habitat adjacent to Mountain Lake. In light of
the confirmed taking of a rattlesnake on the property since completion
of previous SEQRA studies, the omission of thorough field surveys and
habitat assessment relative to one of New York State’s threatened
species is an obvious deficiency in the scope of the SEIS. The
justification for, apparently, not disclosing a known sighting of a timber
rattlesnake on the project property is unsettling. Herein, I provide
additional information and justification that provides evidence that
timber rattlesnakes almost certainly use the project site. The Tuxedo
Reserve site is well-suited for the continued survival and restoration of
the species. (Rubin/Tuxedo Land Trust)
On p. 24 of the Technical Memorandum, under Natural Resources in the
Section relating to Endangered, Threatened and Special Concern
Species the memorandum states that “Wildlife surveys of the Southern
Tract, including the Mountain Lake area, did not identify the presence
of any threatened or endangered species. However, six species of
special concern were found on the Project Site, including marbled
salamanders, Jefferson salamanders, spotted turtles, worm snakes, Redshouldered hawks, and a Cooper's hawk." In fact, wildlife surveys did
reveal the presence of a rattlesnake. Is the coverup coming back to life?
(Wooters)
Sterling Forest and the Tuxedo Reserve site are part of the Hudson
Highlands western region, a species-rich area that is home to 41 native
species of reptiles and amphibians, the second-highest concentration in
the state. The Hudson Highlands western region contains 24 percent of
New York State’s threatened timber rattlesnake population. Rattlesnake
telemetry studies were conducted proximal to the nearby and now
protected Sterling Forge site in an effort to learn where some of the
local rattlesnake population moves. A relatively small number of snakes
were tracked during the process. (Rubin/Tuxedo Land Trust)
Gordon’s Den is located southwest of the proposed Tuxedo Reserve
project site and is believed to contain one of the largest timber
rattlesnake populations in New York State. Telemetry studies revealed a
maximum rattlesnake movement distance of 1.83 miles from Gordon’s
Den (Sterling Forge DSEIS; Appendix I; p. 5; TR#11). The attached
HydroQuest figure titled Potential Rattlesnake Migration Zones (Figure
1) depicts circles extending 1.83 miles outward from den sites known to
be near the proposed project area. This figure shows that timber
rattlesnake dens lie southwest, west, northwest, north, and east of the
Tuxedo Reserve site. As portrayed by overlapping circles extending
outward from known den locations, a number of dens fall within the
locally documented movement distance of 1.83 miles. If the distance
outward from the proposed project boundary is extended to 3.3 miles, a
documented rattlesnake movement distance based on other telemetry
studies, 12 dens are known. Figure 3 depicts overlapping circles of 1.83
DRAFT
3.5-31
June 21, 2010
miles, each centered on a documented den, for an idea of potential
rattlesnake “traffic,” so to speak. The areas with the greatest overlap of
these potential ranges are shown in dark red, west of the project area.
Closer to the Tuxedo Reserve project area, the proposed development is
located at a veritable crossroads of potential snake activity. Project
development will fragment this critical timber rattlesnake habitat.
Analysis of the potential overlap in movement distance of 1.83 miles
from each of the nearest dens reveals substantial overlap within
proposed project home sites. The snakes from each of these dens may
potentially utilize the project site as migratory routes which would
allow genetic exchange between dens, for foraging, and for basking.
Overlap of these potential movement ranges (i.e., migration routes) is
accented on this figure, indicating that additional telemetry radio
location work of timber rattlesnakes may find that numerous individual
specimens may move through the project area. HydroQuest strongly
recommends that telemetry studies be conducted using rattlesnakes
from the three nearest documented den sites. The presence of a
threatened species on the Tuxedo Reserve site, coupled with the strong
likelihood that they bask on rock outcrops in the vicinity of Mountain
Lake, provide solid rationale for requesting the applicant to complete a
revised SEIS. By extension, a rattlesnake investigation should be
conducted throughout the entire Tuxedo Reserve site, including the area
where a rattlesnake was captured and eaten. (Rubin/Tuxedo Land Trust)
The Tuxedo Reserve site, inclusive of the Mountain Lake area, must be
revisited to be professionally assessed for timber rattlesnake den sites
and basking areas, perhaps by a different investigator than who
conducted the first study. Much of the site is ideally suited for this. A
detailed assessment of important factors that combine to make suitable
rattlesnake habitat was conducted in close proximity to Tuxedo Reserve
by HydroQuest for the Sterling Forest Partnership with input from
NYSDEC. Key site factors common to den locations of healthy
rattlesnake populations are slopes greater than five degrees, south facing
slopes, elevations greater than 300 feet, exposed bedrock or talus, oak
forests, and unfragmented habitat. The Mountain Lake area appears to
be well-suited habitat for rattlesnake dens and basking. The nearest
known den sites lie less than 1 mile west of the site and less than 0.6
miles east of the site – both well within documented rattlesnake travel
distance of 1.83 miles. Both Figures 3 and 4 depict a reasonable
approximation of where the Tuxedo Reserve rattlesnake may have been
found and eaten. Figure 4 (Tuxedo Reserve: Slope Analysis &
Rattlesnake Habitat Suitability) documents that much suitable
rattlesnake habitat is present throughout the Tuxedo Reserve site. This
figure was generated using GIS technology. Analysis of current surface
elevations indicates moderate 15 to 25 percent slopes in yellow, 25 to
33 percent highly sloping areas in blue, and severe slopes, over 33
percent, in red. Much of the site is suitable rattlesnake habitat. Clearly,
the Tuxedo Reserve project site may be integral to the continued
survival of the threatened timber rattlesnake, as it lies very close to
areas with observed rattlesnakes. Again, the scope of the SEIS should
be expanded to include a detailed evaluation of the suitability and use of
June 21, 2010
3.5-32
DRAFT
the site specific to the threatened timber rattlesnake. (Rubin/Tuxedo
Land Trust)
Will the Town of Tuxedo require the Related Companies to file the
report of the rattlesnake that was eaten with the NYS Natural Heritage
Database? It is my understanding ruling out rattlesnake habitat would
necessitate radio telemetry studies of dens adjacent to the property.
Anything less is a guess. (Wooters)
As explained more fully by others, the analysis of the impacts on the
Timber Rattlesnake from the development is seriously inaccurate, and
needs to be supplemented. The Town Board, as lead agency, must
remember that a "prohibited taking" of a protected species may occur
upon modification of its habitat. This includes, among others,
impairment to migratory corridors, denning and basking sites. NYS v.
Sour Mtn. Realty, Inc., 128 AD2d 28 (2d Dep't 2000). (Sterthous)
(Page 5-5, Endangered, Threatened, and Special Concern Species) It is
incorrect for the DSEIS to still claim that no endangered or threatened
species were identified on the project site. The now infamous incident
involving a timber rattlesnake should be disclosed here. (Gross
12/31/09)
Response 5-34:
As documented in Response 5-31, a timber rattlesnake survey was
conducted in 1995 and updated in 1998 under the auspices of the
NYSDEC. The completed surveys verify the absence of timber
rattlesnake dens on the Southern Tract. The Applicant has continued to
work with the NYSDEC on issues related to rattlesnakes and other
species including copperheads as is evident by the surveys performed
on the Southern Tract in 2003 for rattlesnakes and in 2010 for
copperheads and rattlesnakes. Beyond these surveys, no further site
investigations for any species (plant or animal) have been requested by
the State. In 2003, a timber rattlesnake survey of the Northern Tract was
conducted in association with the discovery of the Tuxedo Den. Based
on the den discovery, the NYSDEC required modifications to the
proposed development on the Northern Tract. No additional information
has been requested by this agency which implements and enforces the
NY State Endangered Species Act. In addition, timber rattlesnakes were
not observed during any of the field surveys conducted by the
environmental consultant over the last 15 years on the Southern Tract.
The FEIS acknowledged and there is no dispute that the Project Site
lays within the outer limits of the range of certain off-site timber
rattlesnake dens and that some snakes may utilize the Project Site
during a portion of their summer foraging.
As was disclosed by the Developer to the Town Board, a worker on the
site encountered a snake, which may have been a timber rattlesnake, and
unbeknownst to the Developer killed the snake in what was alleged to
be self-defense. The Developer was not involved with the apparent take
of the species and did not become aware of the apparent take until some
time had passed. The NYSDEC has been made aware that the take of a
rattlesnake apparently occurred. It should be noted that the take was
during the late summer when timber rattlesnakes forage and roam at the
DRAFT
3.5-33
June 21, 2010
greatest distance from their dens. The presence of a single timber
rattlesnake on the Southern Tract and the only one sighted in more than
15 years of biologists and others traversing the Southern Tract does not
warrant additional surveys or studies of the Southern Tract. As noted in
Responses 5-31 and 5-33, all timber rattlesnake studies required by the
NYSDEC of the Project Site have been undertaken and since the
NYSDEC was informed of the apparent take of this single timber
rattlesnake, it has not requested any additional timber rattlesnake
surveys.
As stated previously, no other timber rattlesnakes have been identified
before or since on the Southern Tract even though numerous
contractors, biologists, and others have traversed the site in association
with other surveys and studies. In fact, at the copperhead den identified
by a herpetologist recognized by the NYSDEC with experience in
rattlesnake issues, no timber rattlesnakes were observed. These two
species of snakes are known to cohabitate.
Hydroquest’s mapping specifically lacks relevant detail, e.g., barriers to
rattlesnake movement, necessary to assess potential impacts. As
Hydroquest noted, the telemetry studies conducted in Sterling Forest,
which includes most of the nearby mapped den sites, indicate that the
maximum range of a snake from the Gordon Den was 1.83 miles.
Although timber rattlesnakes may migrate in excess of 1.83 miles,
normal migration ranges are generally considerably less than the 3.3
miles referenced in the Hydroquest report. In Biology, Status and
Management of the Timber Rattlesnake (Crotalus horribus): A Guide
for Conservation (Brown 1993), mean migratory distances from the den
are documented as 2.5 miles for males and 1.3 miles for females,
considerably less than the 3.3 miles in the Hydroquest report.3
According to Assessing Timber Rattlesnake Movements Near a
Residential Development and Locating New Hibernacula in the New
Jersey Pinelands (Laidig and Golden, 2004), “A protected area of 1.5
miles (2.4 km) in radius around the den was recommended as adequate
to protect most females and many of the males with the caveat that this
area may not protect the whole population.” 4
Since the Gordon den is the den closest to the site from which snakes
may potentially migrate, using the maximum migration distance from
this den is the most appropriate means of measuring potential
rattlesnake movement. It is therefore appropriate to identify potential
impacts within this 1.83 mile range where it overlaps with the Southern
Tract The Hyrdoquest map clearly shows that only two of the dens are
located within 1.83 miles of the Southern Tract. The Tuxedo Den on the
Northern Tract is also located approximately 2.0 miles from the site.
However, this is a straight line distance through Tuxedo Lake. The
3
Brown, W. S. 1993. Biology, status, and management of the timber rattlesnake (Crotalus horridus): a
guide for conservation. Society for the Study of Amphibians and Reptiles, Lawrence, Kansas,
Herpetological Circular No. 22.
4
Laidig, K. J. and David M. Golden 2004. Assessing Timber Rattlesnake Movements Near a Residential
Development and Locating New Hibernacula in the New Jersey Pinelands.
June 21, 2010
3.5-34
DRAFT
actual distance a rattlesnake would need to travel to reach the Southern
Tract is considerably longer.
Furthermore, the report neglects to point out that the den located closest
to the Project Site, and which purportedly includes much of the
Southern Tract within the 1.83 mile range, is separated from the
Southern Tract by the New York State Thruway, Ramapo River, active
Metro North commuter rail lines, and Route 17, a four lane highway.
Each one of these linear features would provide a significant, likely
insurmountable, impediment to successful rattlesnake movement
between this eastern den and the Southern Tract. Collectively, the four
linear obstacles render it extremely unlikely that timber rattlesnakes
from that den forage or bask on the Southern Tract.
Although not the subject of the DSEIS, telemetry studies were
conducted in 2003 in association with the Tuxedo Den located on the
Northern Tract. In this study, it was determined that the maximum
snake movement from the den during the dispersal period was 4,000
feet (0.76 miles), significantly less than the 1.83 miles referenced
above. The rattlesnakes emerging from the den that were equipped with
transmitters had a strong preference for traveling in a west-southwest
direction from the den rather then radiating out from the den in all
directions as implied by the Hydroquest maps. Therefore, although the
Southern Tract may be located within 1.83 miles of two known dens, it
does necessarily mean that timber rattlesnakes emerging from these
dens regularly utilize the site.
In addition, it should be noted that the Project with the Proposed
Modifications would not preclude or impede the occasional timber
rattlesnake that may forage on the Southern Tract from moving through
and about the Southern Tract. Even on the Southern Tract with the
development proposed, substantial areas of open space and wildlife
corridors would be permanently preserved. Thus, the Project with the
Proposed Modifications would not destroy any known timber
rattlesnake dens or habitat, nor prevent the occasional timber rattlesnake
that may forage on the Southern Tract from migrating to and from its
den.
COPPERHEAD SNAKES
Comment 5-35:
DRAFT
I informed the Town of Tuxedo last spring that a copperhead snake den
was reported on the project site and that this information should be
analyzed with appropriate relocation or elimination of proposed
buildings, roads, trails etc., to avoid human interactions with this
venomous snake. I now have the location of the den, shown in
photographs. This information is from a Field Researcher, Chris
Camacho, involved with salamander studies in the area. He reports that
he observed about a total of 19 copperhead snakes (a NYS Species of
Greatest Conservation Need) during a number of visits to the den site
last year. The den location was confirmed by a Herpetologist who
observed two copperhead snakes during a visit to the den site last year.
(Welch)
3.5-35
June 21, 2010
These species [copperhead snakes] tend to cohabit with timber
rattlesnakes, which you may wonder if they did sufficient work for
timber rattlesnakes. It’s in the applicant’s best interest to do this
properly so they don’t’ encounter problems down the line, as happened
with so many other developments in this area. (McGowan)
Another species of concern on the site is the field observation of a
copperhead den, and confirmed by a leading herpetologist. This is
significant information about a site within Phase One of the
development. You cannot have houses near copperhead dens. They are
more aggressive than rattlesnakes and they are a poisonous snake. Black
snakes are also there. (Welch)
Response 5-35:
June 21, 2010
EcolSciences conducted a presence/absence study for the New York
State-threatened timber rattlesnake on the portion of the abovereferenced site located in the vicinity of an alleged northern copperhead
hibernaculum (winter den). According to the comments presented to the
Town of Tuxedo, a copperhead den had been identified on-site by Chris
Comacho in 2008. Mr. Comacho apparently conducted numerous visits
to the area in the spring of 2008 and identified several northern
copperheads in the vicinity of the alleged den. Due to the presence of
the copperhead den, and because timber rattlesnakes have been known
to den collectively with other species, including copperheads,
EcolSciences’ study was conducted to document the copperhead den
and verify the absence of timber rattlesnakes utilizing the den. As such,
the field study was conducted during the appropriate timber rattlesnake
spring emergence period and in accordance with NYSDEC guidelines
for timber rattlesnake den surveys. In addition, on each survey date
EcolSciences also visited a known timber rattlesnake den on the
Northern Tract that is characterized by similar forested habitat. The
known rattlesnake den was used as a control site in order to confirm the
dates of local rattlesnake emergence and also to verify the effectiveness
of the visual searching techniques utilized by EcolSciences. Surveys
were conducted under appropriate weather conditions. Due to
unseasonably warm temperatures, an extra survey day was added in
early April (April 12, 2010), to determine if any rattlesnakes or
copperheads were emerging early in response to the warm weather. No
copperheads or rattlesnakes were identified at either den site on this
date. Subsequent surveys were conducted on April 23 and 30 and May 6
and 17, 2010. On each survey date, timber rattlesnake activity was
observed at the known rattlesnake den. Except on April 30, copperhead
activity was observed in the vicinity of the copperhead den. No timber
rattlesnakes were observed within the vicinity of the copperhead den.
The presence of this copperhead den requires certain measures,
described below, to protect the den and the species. The den is located
within a portion of the Southern Tract that the Project had designated as
permanently protected open space and which the Proposed
Modifications would continue to protect as such. The Modified Plan
increases the distance between this den and the nearest residence by at
least 150 feet from approximately 350 feet under the 2004 plan to
greater than 500 feet. The residences in closest proximity to this den
under both plans are sited generally to the south of the den. The
3.5-36
DRAFT
Mountain Lake lots with their lot lines closest to this den, those on the
west side of Lower Mountain Lake Road north of its intersection with
Tucseto Trial, would be approximately 1,200 feet distant. Between
these lots and the den are both Lower and Upper Mountain Roads. The
proposed water tower would be roughly 640 feet from the den as
measured from the den site to the end of the proposed access road. The
following steps shall be undertaken to avoid all disturbances to the den
and nearby potential copperhead basking areas: (1) construction of the
water tower shall be at times that would not interfere with copperhead
basking or migration; (2) fencing and barriers shall be erected in a
manner to direct snakes away from the water tower site and from
residential development; and 3) additional wildlife tunnels shall be
evaluated and installed under proposed roadways to assure that
sufficient migration pathways are maintained between the den and
nearby wetlands. It should also be noted that the Project design already
incorporates sustainability and best management practices to minimize
impacts to wildlife including wildlife tunnels under the existing
roadways (See Figures 5-7 through 5-9 of the DSEIS).
PLANTS
Comment 5-36:
On endangered, threatened, and special concern species, which is page
5.5 on the SEIS, it says wildlife surveys of the project site, including the
area in the vicinity of Mountain Lake, which is an important area there,
did not identify any threatened or endangered species. Well, it's no
wonder. The one thing the inventory focused only on rare animals, not
on rare plants. Now in the heuristic survey that I worked on from '92 to
2004 in the Hudson Highlands, we found over seventy species of New
York State rare, threatened or endangered plants and many of these
occur in habitats found at Tuxedo Reserve. Now as a contractor to REIS
I was ground checking the ecological community boundaries, not
actively searching for rare plants. Even so I found yellow harlequin and
small flowered crow foot, which are both on the New York State
Natural Heritage list. In the sedge oak lands west of the Mountain Lake
corridor; this is a critical pathway for wild life in an area with potential
for more rare state plants. (Barbour 11/23/09, 12/1/09)
Response 5-36:
The protection of wildlife species and the protection of State listed plant
species differ considerably. The regulations as they apply to rare plants
are set forth in New York State Environmental Conservation Law
section 9-1503 and provide as follows: "It is a violation for any person,
anywhere in the state to pick, pluck, sever, remove, damage by the
application of herbicides or defoliants, or carry away, without the
consent of the owner, any protected plant. Each protected plant so
picked, plucked, severed, removed, damaged or carried away shall
constitute a separate violation." (Emphasis added.) The ECL does not
prohibit an owner of the land or those with permission from the owner
from removing rare plants from that owner’s private property.
Nevertheless, it should be noted that the Project with the Proposed
Modifications would permanently preserve as open space substantial
habitat area for any rare vegetative species that may be found on the
DRAFT
3.5-37
June 21, 2010
Project Site. This approach ensures that if any rare plants do occur on
the property, potential habitat will be available to these species in the
future.
Comment 5-37:
Based on results of the Hudson Highlands floristic survey and the
variety of communities at Tuxedo Reserve I would estimate that the site
could contain 20-40 or more species of rare plants including many
ranked Threatened or Endangered (Young 2008). Not only did the
Natural Resources survey conducted by EcolSciences fail to identify
rare plant species on the site, it guaranteed this lack of results by failing
to look! Moreover, EcolSciences did not assess the vegetative
communities they identified in terms of known associations of state-rare
plants with any of the communities identified in the FEIS and SElS.
With no information on the occurrence or potential occurrence of rare
plant species, the site plan cannot be evaluated in terms of impacts to
plant life. The SEIS claims that the revised site plan lessens impacts to
rare species and to biota of the site generally. How can this be claimed
without any supportive information about the potential or actual
locations of rare or sensitive plants or their habitats? The SEIS cannot
be considered complete in terms of critical information on critical
impacts to rare plants and their habitats, nor accurate in terms of
addressing those impacts. (Barbour 12/1/09)
Response 5-37:
Years of on-site field work, including but not limited to the habitat,
snake, and amphibian surveys, have been vetted with the NYSDEC. As
documented in the project’s 1999 DSEIS, based on conversations with
the NYSDEC, as early as 1995, the site was evaluated for New York
State Threatened and Endangered Species. In addition to species
identified by the NYSDEC as being of potential concern on-site,
appropriate habitat-specific wildlife surveys were conducted for other
protected vertebrate species meeting the hard look requirement of the
SEQRA. Based on habitat suitability, the site was assessed for
additional species classified by the NYSDEC as Special Concern within
New York State; including but not limited to Cooper’s hawk, eastern
bluebird, spotted turtle, wood turtle and spotted salamander. The results
of these and all other flora, fauna, and habitat surveys, including data
collected and observations made by the environmental consultants, have
been shared with the NYSDEC and presented for the environmental
review record in past and current reports. None of these surveys
suggested the presence of Threatened or Endangered plants, thus no
further study was deemed warranted.
It is also noted that the commenter was one of the experts hired by the
Applicant to conduct the habitat survey on the property. At the time of
the survey, the commenter did not disclose the discovery of any
Threatened or Endangered plants on the Project Site, or the potential for
Threatened or Endangered plants, to the Applicant.
The new areas proposed for development are all in habitat types that
exist in multiple locations within the permanently protected open space
areas. As previously indicated in Response 5-36, there is no protection
June 21, 2010
3.5-38
DRAFT
of state listed plant species from activities conducted by the property
owner. Although, no plant surveys focused on identifying threatened or
endangered species were conducted on the site, the proposed
development plan provides protection for large portions of all vegetative
communities—approximately 75 percent of the Project Site will remain
undisturbed—thereby protecting potential habitat for all vegetative
species that may occur on-site.
WETLANDS
Comment 5-38:
(Page 5-8, Wetlands) The DSEIS states: "The area to be developed in
the vicinity of Mountain Lake is primarily upland habitat. As shown in
Figure 5-4, the proposed development would substantially avoid direct
impacts to wetland areas. Furthermore, wetlands elsewhere on the site
that had previously been proposed for development would be protected.
Therefore, the Proposed Modifications would not have the potential to
generate any new significant adverse impacts to wetlands." Neither this
statement, nor Figure 5-4, reflects the proposed development of
Mountain Lake, a NYSDEC-regulated wetland, for recreational
development, as was discovered and discussed above. Without any
disclosure of details from the applicant regarding the proposed
boathouse, rock beach, and access points for boating, including whether
docks would be utilized, etc., there is no way to assess the potential
impact on wetlands in the Mountain Lake area. (Gross 12/31/09)
Response 5-38:
Please refer to Responses 1-11 through 1-13 regarding the future use of
Mountain Lake. No recreational use of Mountain Lake or development
within its associated wetlands will be permitted to occur.
Comment 5-39:
(Page 5-8, Wetlands) Further, the DSEIS does not clearly describe the
wetlands that would now be avoided under the proposed amendment,
making it difficult to draw a true comparison between the two plans in
regard to wetlands impacts. It can be seen that the approved plan
situated units along the boundary of wetlands around the southwestern
border of the property, which would now be removed under the
proposed amendment. It is clear that it would be beneficial to remove
development from the edge of these wetlands, but what is unclear is the
regulatory status of these wetlands. Some figures, such as Figure 5-1a,
show this wetland system as federally protected, with no buffer. Other
figures, such as Figure 5-2, however, indicate that the wetland is also
protected by the NYSDEC with a 100-foot protected adjacent area, or
buffer. Which is accurate? Established wetland maps do not indicate
these wetlands as NYSDEC protected. It is entirely possible, however,
that the wetland was given protective status by the NYSDEC after their
review of the Tuxedo Reserve project, especially if it was found to
support endangered, threatened, or special concern species. If this is the
case, then the project sponsor would likely have been denied NYSDEC
permits to build these units within the wetland's 100 foot adjacent area,
and they would be forced to remove these units from the plan. (Gross
12/31/09)
DRAFT
3.5-39
June 21, 2010
Response 5-39:
Figure 2-9 of the 2003 FEIS illustrated on-site wetlands and those that
would be located within the limits of disturbance. Figure 15b of the
Technical Memorandum specifically identifies which wetlands will be
impacted by the Project Modifications. The Proposed Modifications will
reduce disturbance to NYSDEC 100-foot wetland buffer areas from
3.13 acres to 3.11 acres. Impacts to ACOE regulated wetlands have
been reduced from 1.75 acres to 0.67 acres. Therefore, all the wetland
disturbances are less than the amount authorized by the Project
Approvals. The on-site wetland limits and jurisdiction of State regulated
wetlands have been confirmed by the NYSDEC for the entire Southern
Tract. During their review of the project and the site, the State indicated
that future mapping amendments of State-protected wetlands in Orange
County may include the large wetland located in Phase 3. While no
analysis was conducted and no remapping is currently proposed, the
Developer took the initiative to preclude any potential future regulatory
constraint by removing all development from the potential 100-foot
adjacent area. The wetlands shown on figure 5-1a do not identify
jurisdictional boundaries of the wetlands. Figure 5-2 correctly identifies
the wetlands currently regulated and those with potential to be regulated
by the NYSDEC, as well as providing a 100-foot adjacent area around
the Phase 3 wetland.
Comment 5-40:
The SEIS concludes, "Therefore, this small area of new disturbance
would not adversely impact the current wildlife community located
within the Mountain Lake area." This conclusion is dead wrong.
Concentrated development in a 21-acre area upslope of a wetland is a
major impact, and not really indirect. Impacts of chemicals such as lawn
care products, road salt, automotive fluids and household chemicals
carried by runoff are "direct," and potentially more devastating to
wildlife than one-time direct physical disturbance (Relyea, 2005 and
Armbrust et. a1. 2003). Impacts of nearby upslope residential
development are cumulative and long-term, and by no means minor.
The wildlife corridor between Bog Meadow and Mountain Lake, the
heart of the site's interior forest, should not be disturbed in any way, by
physical disturbance or chemical contamination or human activity and
presence. Leave it as undisturbed open space, as in the original plan.
(Barbour 12/1/09)
Response 5-40:
The new development called for in the Proposed Modifications would
not generate any significant adverse impacts to wetlands between
Mountain Lake and Bog Meadow or to the Mountain Lake watershed.
As governed by the Smart Code, private lawns in the Adirondack
Neighborhood Zone will be significantly restricted as the construction
perimeter clearing and grading in this area “may only extend up to 10 ft.
measured perpendicularly from the side of the building” and “additional
tree clearing [is] limited to 10% of trees in the required setback and 20
% on [the] remaining property outside of the Construction Perimeter.”
To the extent this comment addresses the physical disturbance of the
wildlife corridor between Bog Meadow and Mountain Lake, please
refer to Response 5-15.
June 21, 2010
3.5-40
DRAFT
The project includes a Stormwater Management Plan developed to
comply with NYSDEC requirements (please refer to Response 5-7).
This plan includes stormwater management practices designed to
protect all surface water resources downstream of proposed
development. Adherence to the Best Practices that are articulated in the
Stormwater Management Plan along with the limited use of road salts
will minimize to the maximum extent practicable, the pollutant load
entering the Mountain Lake watershed. Please refer to Responses 5-9
and 5-15 regarding comments concerning disturbance to the area
between Bog Meadow and Mountain Lake and concerning migratory
pathways and corridors.
Comment 5-41:
(Page 5-10: Conclusions) The DSEIS states: "The Proposed
Modifications have refined the 2004 Preliminary Plan to enhance the
protection of natural resources. These refinements are the result of
continued natural resource and ecological assessments of the Project
Site, with particular focus on the proposed new areas of disturbance,
including the vicinity of Mountain Lake". These natural resource
assessments found the upland area surrounding Mountain Lake to be
less sensitive than the vernal pools and wetland areas identified in the
lower-lying areas of the site. As such, these conditions provided the
opportunity to relocate development from the more environmentally
sensitive lower-lying areas to the upland Mountain Lake area." As has
been noted, developing in the Mountain Lake area as proposed carries
with it significant adverse ecological impacts, including:
•
The elimination of 94 acres as un-fragmented forest
•
The elimination of an important wildlife corridor
•
Undisclosed wetland impacts resulting from the recreational
development of Mountain Lake.
In addition, portions of this development will occur on top of a major
fracture, which has the potential of carrying contaminants into both
groundwater and the Ramapo River. It is not at all clear that putting
development in this area will pose less impact than what would occur
under the approved plan. In part, more information is needed about the
areas proposed to be avoided, and whether the applicant will be allowed
by other agencies, such as the NYSDEC and the ACOE, to build there
now that it has been found to be a habitat for special concern species.
The conclusions reached above are premature. (Gross 12/31/09)
Response 5-41:
Please refer to Responses 5-6, 5-8, 5-9 and 5-15 for discussion of forest
fragmentation, wildlife corridors and potential impacts associated with
the relocation of residential units called for in the Proposed
Modifications. Please see Responses 5-30, and 1-11 through 1-13,
which address the lack of future recreational use of Mountain Lake and
the actual proposed development in the vicinity of Mountain Lake.
With regard to potentially significant adverse groundwater impacts of
the Proposed Modifications, please refer to Responses 6-1 through 6-4.
As to potentially significant adverse surface water impacts of the
Proposed Modifications, please refer to Response 5-7 and the
DRAFT
3.5-41
June 21, 2010
Stormwater Management Reports which identify the stormwater
management practices to be undertaken to avoid generation of any
significant adverse impacts.
Finally, the Proposed Modifications, by relocating lots away from
wetlands and vernal pools, are more ecologically sensitive than the
Project without the Proposed Modifications. It is important to note that
the ACOE regulates surface water resources and not flora and fauna; the
Species of Special Concern designation is assigned only by the
NYSDEC. Species of special concern “warrant attention and
consideration but current information does not justify listing them as
either endangered or threatened.” As a result, while special concern
species are important, their presence on a project site does not require a
required alteration of a proposed development. Nevertheless, the
Applicant has conducted a thorough inventory of the Southern Tract and
has identified isolated vernal pools supporting special concern species.
The Proposed Modifications would protect these vernal pools and
wetlands supporting species of special concern from development in an
attempt to preserve additional appropriate habitat for the various special
concern species that inhabit the Southern Tract.
Comment 5-42:
Chapter 5 - Natural Resources page 5-8 states “wetlands elsewhere on
the site that had previously been proposed for development would be
protected. Therefore, the Proposed Modifications would not have the
potential to generate any new significant adverse impacts to wetlands.”
Clearly mistakes were made in planning this project in the past or we
wouldn't be here today. If such happened with respect to wetland
disturbance, which is likely, that should not mean mistakes may
continue around Mountain Lake. This is faulty reasoning. (Wooters)
Response 5-42:
The developer has engaged in further study of the Southern Tract and,
on the basis of these studies, has proposed modifications to the Project
Approvals.
Comment 5-43:
Regarding, Chapter 5 Natural Resources "Wetlands" B page 5-land D
page 5-8: Has TR or the Tuxedo Town Board read the NYSDEC
Orange County Freshwater Wetlands Map Amendments—Hearing
Report, January 29, 2008? This matter is related to the Proposed
Amendments to the Freshwater Wetlands Maps for Orange County
pursuant to Environmental Conservation Law (ECL) Article 24
(Freshwater Wetlands Act) and title 6 of the Official Compilation of
Codes, etc. These types of findings just might have a reflection on
Wetland Mapping through out Orange County Townships and proposed
developments Wetlands such as the TR project? (Kwasnicki 10/26/09)
Response 5-43:
The referenced Map Amendments – Hearing Report reference a specific
series of properties on which the NYSDEC believes additional wetlands
are located which should have been identified on the State maps. The
Map Amendment process requires property owner notification and a
hearing on any proposed map revisions. No such map amendment has
been or is currently proposed on the Southern Tract. The above-
June 21, 2010
3.5-42
DRAFT
mentioned Map Amendment does not include or impact the Tuxedo
Reserve Project.
Comment 5-44:
I disagree totally with the conclusions that the project would haven no
significant impact on natural resources on the site. The DEC listed
wetlands on the site are valuable habitat, and it is crazy that in New
York we have a minimum buffer of 100 feet. There are all types of
science out there that much, much greater buffers are needed even in
vernal pools. In New Jersey, they are saying that a vernal pool needs a
1,000 foot buffer. Some development right on the 100 foot buffer and if
you are only protecting 100 feet, its always at risk from future changes.
The red Shouldered Hawk is a species that was reported as being on the
site on several occasions and is probably nesting in the wetlands. If you
take away the buffer, you put houses around these wetlands, you are
destroying the habitat that this species (one of special concern) needs.
(Welch)
Response 5-44:
The 100-foot protective buffer is regularly applied to surface water
resources under the purview of both state and municipal governments
and the Proposed Modifications do not propose any development within
the mandated 100-foot buffer. While opinions may differ about
appropriate buffer distances depending on the type of surface water
resource and the resource’s ability to support a particular protected
species, no greater buffer distance has been required by any of the
regulatory agencies charged with the protection of either surface waters
or wildlife resources; the 100 foot buffer remains the law.
Please see Response 5-24 for additional information on the measures to
protect the habitat of the Red-shouldered hawk.
Comment 5-45:
DRAFT
Interestingly on the new wetland map, that is included in the SEIS.
Where you had four state wetlands shown on the old map, there are now
five shown on the new wetland map. And the wetland that was
previously mapped as federally regulated is now currently mapped as
being a state regulated wetland, with a hundred foot buffer around it. I
was very confused by this, because it's not noted anywhere in the SEIS
or any documentation that there has been a state wetland added. It is
still not on any of the state maps. I'm surmising that maybe what
happened is that when the state came out to review the mapping, that
they decided that perhaps this wetland should be added to the list. I
don't know. I haven't gotten any information from that. Certainly no
information in the SEIS to that degree. Now what makes this very
interesting is that in the old plan, there is a lot of development clustered
around that wetland, right up to the boundary, because they could. They
are a federal wetland. They can go right up to the boundary. In the new
plan that has all been moved out of that area, moved from what would
be the hundred foot buffer. My question is then, what happened? Did
the state decide that this is now a state regulated wetland, and was this
applicant thereby forced to remove the units from that wetland? That
brings up two questions; one, if that's the case, then why hasn't that been
3.5-43
June 21, 2010
disclosed to this board? And secondly what does that mean about the
2004 plan as an alternative? They have been stating all along that if you
don't want to approve these proposed amendments, we'll simply build
what was approved in 2004. Well, the question is, can they? Or will
they be banned from doing that by not being able to get state permits?
And again I'm working off of their own map, one map that's in the
SEIS, that is purporting to be a state regulated wetland. (Gross
11/23/09)
(Figure 5-2, Wetlands Protection) A major difference between the 2004
plan and the proposed modifications is the removal of proposed
residential units along the boundary of what had originally been shown
as federally-regulated wetlands in Phase 3. Figure 5-2 now indicates
that this wetland is regulated by the DEC with a 100-foot buffer. The
units present under the approved 2004 plan were removed from what is
now shown as the DEC regulated wetland buffer. What has happened
that this area is now indicated as being NYSDEC regulated? (Gross
12/31/09)
Response 5-45:
As noted in Response 5-39, the fifth wetland showing the 100-foot
adjacent area, is a wetland that the NYSDEC identified in the field –
subsequent to the 2004 Project Approvals - as an area that may be
mapped when revisions are proposed to the NYSDEC freshwater
wetland maps of Orange County. Therefore, based on the potential that
this wetland could be mapped by the NYSDEC, modifications were
made in this area to provide this wetland with a 100-foot adjacent area.
It is important to note that the ACOE regulates all wetlands under the
jurisdiction of the NYSDEC the difference being the ACOE has no
buffer around the resources under their purview. As such, disturbances
of wetlands protected by both the ACOE and NYSDEC would require a
permit from both agencies.
Comment 5-46:
Wetlands. As expressly acknowledged in the SDEIS, the delineation of
all on-site wetlands and thus any legitimate analysis of potential adverse
impacts to these resources is not complete. Likewise, any previous
analysis contained in the earlier DEIS/FEIS is now out of date. Any
conclusions in the SDEIS with respect to wetlands not falling within the
jurisdiction of federal or state agencies has not been supported in the
SDEIS. (Sterthous)
Response 5-46:
Please refer to Response 5-45. The wetland delineation and subsequent
State delineation of the wetland boundaries are based on the most
current data collected as of the completion of the DSEIS. As such, the
location and limits of all New York State regulated wetlands have been
confirmed by the NYSDEC.
The extent of ACOE regulated wetlands within Phase 1 has been
determined by a Jurisdictional Determination from the ACOE. All
wetlands within the Southern Tract development area have been
delineated and surveyed. In addition, the reader is referred to the
Technical Memorandum (included as an appendix to the DSEIS) which
contains a detailed update on the wetlands on the Southern Tract.
June 21, 2010
3.5-44
DRAFT
Therefore the wetland delineation shown on the development plans
reflect the most current information available.
Comment 5-47:
The New York State Legislature is poised to enact new legislation
extending NYSDEC jurisdiction over wetlands down to one acre in size.
As this legislation may become effective prior to Town approval and
likely before the commencement of any construction, the Town Board
would be well-served by an analysis of the effect such legislation will
have on the project. At minimum, this scenario should be assessed in
the alternatives section of the SDEIS. (Sterthous)
Response 5-47:
This legislation has been proposed but has yet to be enacted into law.
There is no indication that the New York State Legislature is “poised”
to enact this legislative amendment. As of the preparation of this FSEIS,
the New York State legislature has not enacted any changes to the
State’s jurisdiction of wetlands. Therefore, all assessments and impact
analyses related to State regulated wetlands are based on the existing
law.
WATER QUALITY
MOUNTAIN LAKE
Comment 5-48:
Construction of roads, utility lines, and homes in the Mountain Lake
community may lead to significant adverse environmental impact to
Mountain Lake and the surrounding New York State wetland. SEIS
Figures 5-1a and 5-1b show planned development within the watershed
tributary to Mountain Lake. The SEIS concludes that the disturbed area
will be 4.5 acres (6%) of the Mountain Lake watershed (page 6-2). The
Natural Resources section of the SEIS (page S-4) states that the:
“[T]uxedo Reserve has always been designed to maintain the integrity
of the existing natural resource environment, focusing on the protection
of wetlands and stream corridors, rock outcrops and ridgelines, wildlife
habitat, and contiguous open space areas and migratory corridors.”
Significant alteration (e.g., construction, grading, excavating) of the
watershed area tributary to the project area and site wetlands may
permanently disrupt the natural hydrodynamics and nutrient balance
that now sustain a healthy wetland ecosystem. Hydrologically, the
physical boundaries of wetlands extend far beyond the mapped fringe
area with a prevalence of wetland vegetation. Site wetlands receive
water and nutrients from sustained groundwater flow and episodic
surface water influxes. The water budget, water renewal rate, primary
production, and health all depend on these fluxes. Grading,
construction, and erosion within the watershed tributary to numerous
wetlands will almost certainly permanently disrupt the hydrologic,
chemical and thermal equilibrium now afforded by combined surface
and shallow groundwater recharge, such that project site wetlands and
their ecosystems may not be able to remain viable. (Rubin/Tuxedo Land
Trust)
DRAFT
3.5-45
June 21, 2010
Response 5-48:
The Applicant has designed the Proposed Modifications to avoid,
minimize and maintain hydrologic connections between wetland areas
to prevent impacts to wetland recharge within the Mountain Lake area,
as well as the Southern Tract, generally. Steps have been taken to
maintain surface flow into the wetlands with culverts and bridges along
potential wetland/wildlife corridors. Stormwater management practices
will be designed to meet or exceed all NYSDEC requirements, and will
minimize impacts to Mountain Lake and the adjacent wetland. Please
refer to Response 5-7 for more information on watershed and water
quality impacts based on a percent of watershed development.
Furthermore, water level monitoring during the pumping test program
found no discernable connection between the deep fracture zone and the
shallow water bearing systems. As such, the shallow groundwater
(overburden and uppermost fractured/weathered bedrock) that
contributes seepage water (i.e., springs) to Mountain Lake is not
influenced by the deeper groundwater occurring in the fractured
bedrock aquifer, which will be used to supply drinking water to the
Project Site.
Comment 5-49:
The applicant has not appropriately addressed the natural surface water
and groundwater recharge (i.e., the shallow storm flow zone and
groundwater/wetland interface) that now hydrologically sustain project
wetlands and their ecosystems (i.e., species composition and richness,
primary productivity, organic accumulation and nutrient cycling).
(Rubin/Tuxedo Land Trust)
Response 5-49:
The Applicant has addressed the extent and regulatory status of the
wetlands within the Project. The Applicant has designed the Proposed
Modifications to avoid, minimize and maintain hydrologic connections
between wetland areas to prevent impacts to wetland recharge within
the Mountain Lake area, as well as the Project Site at large. Steps have
been taken to maintain surface flow into the wetlands with culverts and
bridges along potential wetland/wildlife corridors.
Comment 5-50:
There are significant environmental risks associated with advancing the
Tuxedo Reserve project based on incomplete assessments provided in
the SEIS. These include infringement into 100-foot State wetland
buffers, water quality risk to Mountain Lake and its wetland, possible
dewatering of Mountain Lake stemming from aquifer pumping during
dry periods, water quality risk resulting from contaminant infiltration
from development within the aquifer recharge zone, risk of loss of
adequate project water supply should long-term pumping reach and
dewater bedrock fractures, and inadequate assessment of threatened
species. As such, unless these issues are addressed before SEQRA has
been completed, it is difficult to see how the Town Board as lead
agency will be able to satisfy their legal obligation to take a “hard look”
at the potential adverse impacts posed by this project. I therefore
recommend that the scope of the SEIS be expanded to include
June 21, 2010
3.5-46
DRAFT
significant outstanding issues raised in this letter before advancing to an
FEIS. (Rubin/Tuxedo Land Trust)
Response 5-50:
With regards to the 100 foot buffer requirement, please refer to
Responses 4-24, 5-39 and 5-44.
As discussed in the Technical Memorandum, the Proposed
Modifications have been designed to reduce potential impacts to
wetland areas on the Project Site. The Proposed Modifications will
reduce disturbance to NYSDEC 100-foot wetland buffer areas from
3.13 acres to 3.11 acres. Impacts to ACOE regulated wetlands have
been reduced from 1.75 acres to 0.67 acres. Therefore, all the wetland
disturbances are less than the amount authorized by the Project
Approvals. Furthermore, the Proposed Modifications were specifically
designed to minimize impacts to non-jurisdictional vernal pools which
provide breeding habitat for amphibious species of special concern.
Appropriate buffers would be maintained around Mountain Lake and its
wetland. As discussed in Response 5-48, the Applicant has designed the
Project to avoid, minimize and maintain hydrologic connections
the Mountain Lake area, as well as within the Southern Tract. Steps
have been taken to maintain surface flow into the wetlands with culverts
and bridges along potential wetland/wildlife corridors. Stormwater
management practices will be designed to meet or exceed all NYSDEC
requirements, and will minimize impacts to Mountain Lake and the
adjacent wetland.
As discussed extensively in Chapter 6 of this FEIS, pumping tests
revealed no hydrologic connectivity between Mountain Lake and the
deep aquifer from which the water supply would be drawn. Please refer
to Responses 6-1, 6-2, 6-13, 6-15, 6-16, 6-17, and 6-20.
The Applicant has worked extensively under the guidance of NYSDEC
to accurately assess the potential impact of the Proposed Action on
threatened and endangered species. Please refer to Responses 5-13, and
5-21 through 5-37.
Comment 5-51:
DRAFT
In my professional opinion, the Tuxedo Reserve project, as proposed
(with numerous buildings, roads, and buried utility lines), will
permanently degrade this combined New York State and Federal
wetland complex, both within the Mountain Lake area and elsewhere
within the subject property. The creation of preferentially permeable
pathways for shallow groundwater flow as a result of utility line
installation (e.g., sewer, water) may irreparably harm wetland ecology.
Figure 1 (Water Line – Wetland Assessment) illustrates the planned
placement of 12 inch (red) and 8 inch (black) water supply lines.
Wetlands are also depicted on this figure. Most would be compromised
by proposed adjacent or surrounding water lines. Trenches excavated
and constructed for these lines will provide zones or pathways of
preferentially high permeability. These pathways will disrupt the natural
surface water and groundwater recharge that now provides the natural
hydrologic and chemical fluxes that make this wetland complex healthy.
3.5-47
June 21, 2010
As a result, existing wetland ecosystems may no longer be viable and
may be destroyed. Road construction (see Figure 2 along with Figure 1),
other utility lines, site grading, home construction, and contaminant
loading within small headwater watersheds tributary to these wetlands
are likely to further degrade the viability of many of these wetlands.
Response 5-51:
Figures 1 and 2 submitted by the commenter are not drawn to a scale
that accurately reflects the disturbance that would be caused by utility
installation. The line weight used to indicate the 8 inch and 12 inch
water mains are shown as being wider than the entirety of I-87, thus
portraying an inaccurate and substantial overestimate of the area of
disturbance. The majority of the proposed utilities would be run
underneath the proposed roadway system, thus minimizing its
permeability. Stormwater runoff from the proposed roadways will be
directed to the stormwater management system, which will be designed
to meet or exceed all NYSDEC requirements (see Response 5-7), and
will minimize impacts to Project Site wetlands and watersheds.
As designed, the Proposed Modifications would reduce disturbance to
regulated wetlands and wetland buffers, as well as unregulated wetlands
such as vernal pools from that which was approved in the 2004
Preliminary Plan. The proposed roadway system and underlying utilities
would be run outside of wetlands and wetland buffers, except in a
limited number of circumstances where a wetland/wetland buffer
crossing cannot be avoided. The Proposed Modifications have been
designed to avoid, minimize and maintain hydrologic connections
the Mountain Lake area, as well as the Project Site at large. Steps have
been taken to maintain surface flow into the wetlands with culverts and
bridges along potential wetland/wildlife corridors. These measures will
protect the existing wetland ecosystems and maintain the viability of
these wetlands.
Therefore, the Proposed Modifications are not anticipated to result in
any significant adverse impacts to wetlands, wetland buffers, or
watersheds.
Comment 5-52:
June 21, 2010
Figure 1 also depicts four areas where it appears that water lines are
planned directly within the 100-foot buffer minimally afforded to
“protect” State wetlands. Significantly, one of these infringement areas
lies along the northeastern and southeastern edges of Mountain Lake
and its wetland. Furthermore, reference to Figures 5-1a and 5-1b, for
example, show a roadway here, extending toward a water supply well. It
is not clear if this roadway will be paved or left with a dirt base and
used for vehicular traffic within the 100-foot wetland buffer.
Alternately, the applicant may plan on constructing a roadway nearby,
but outside the 100-foot protective State wetland buffer distance. Page
5-10 of the SEIS states that this wetland and its associated 100-foot
adjacent area are being preserved as open space. For this statement to be
accurate, a revised water line, utility line, and roadway project plan for
3.5-48
DRAFT
the Mountain Lake area should be presented for public review.
Response 5-52:
No change to the width or function of the existing gravel roadway is
proposed and there is no proposal to pave the roadway. The water line
will be excavated under the roadway to prevent any additional
disturbances to the area along Mountain Lake. Construction of the water
line is not anticipated to impact the wetlands or wetland hydrology. No
significant adverse impacts are anticipated.
Comment 5-53:
Hydrologically, the mandated New York State 100-foot buffer distance
outward from State wetlands will not afford the desired water quality
protection. The underlying and erroneous concept inherent in the SEIS
is that, by keeping all project development outside of the 100-foot
minimum buffer mandated for New York State wetlands, the Mountain
Lake wetland will remain healthy and viable. This concept is not
addressed in the SEIS with respect to water supply and outflow and
chemical fluxes. While the minimum 100-foot buffer guidance footage
number may be suitable in large watersheds with regular stream water
influx and outflow, it is decidedly not applicable in the small Mountain
Lake watershed. This watershed almost certainly has no active yearround stream flow entering and leaving it. Instead, with brief exceptions
during periods of intense precipitation and snowmelt, most of the water
incident to the Mountain Lake wetland is via undefined groundwater
pathways. (Rubin/Tuxedo Land Trust)
Response 5-53:
As discussed in the DSEIS, Mountain Lake is a 6.4-acre spring-fed
water body located in the northern part of the Southern Tract. Mountain
Lake is fed by shallow groundwater (overburden and uppermost
fractured/weathered bedrock), which contributes seepage water (i.e.,
springs), and is not influenced by the deeper groundwater occurring in
the fractured bedrock aquifer. The Mountain Lake watershed includes
the lake, adjacent wetlands, and steep forested slopes. The drainage area
to Mountain Lake is approximately 74 acres. Mountain Lake discharges
to a small watercourse that flows to the east. Flows from the lake
eventually enter piped drainage systems within the Town of Tuxedo,
where they are conveyed to the Ramapo River. A small concrete dam
acting as a weir is located along the watercourse.
The Proposed Modifications include a disturbance area of
approximately 4.5 acres (6%) within the drainage area. Within the
proposed Mountain Lake neighborhood approximately 55,000 square
feet (1.3 acres) of impervious area is proposed. The impervious area
includes the construction of narrow roads and small dwellings in the
southwestern corner of the watershed. The development style will be
rural, with an emphasis on low-impact structures, landscaping, and
grading. As such, most of the Mountain Lake drainage area will be unimpacted by the Proposed Modifications.
Since the Proposed Modifications would result in a minimal increase in
impervious surfaces (1.8%) and since the proposed well system is not
hydrologically connected to Mountain Lake, no significant impacts to
DRAFT
3.5-49
June 21, 2010
the recharge capabilities of Mountain Lake and its adjacent wetland
areas are anticipated. Furthermore, the Project has been designed to
avoid, minimize and maintain hydrologic connections between wetland
areas to prevent impacts to wetland recharge within the Mountain Lake
area, as well as the Project Site at large. Steps have been taken to
maintain surface flow into the wetlands with culverts and bridges along
potential wetland/wildlife corridors. These measures will protect the
existing wetland ecosystems and maintain the viability of these
wetlands. Therefore, the Proposed Modifications are not anticipated to
result in any significant adverse impacts to wetlands, wetland buffers, or
watersheds.
With regard to the 100-foot buffer, the regulatory standards that apply
to development in or adjacent to wetlands are determined by New York
and federal regulatory agencies. The project has been designed to be in
accordance with those standards. Please refer to Responses 5-24, 5-39
and 5-44.
Comment 5-54:
The hydrologic functioning of the Mountain Lake wetland requires
continued natural groundwater and surface water influx from far beyond
this minimum 100-foot buffer distance. Housing development is
planned almost up to the 100-foot buffer. Development within the
Mountain Lake watershed, of even a small number of homes, roads and
utility lines may disrupt the slow, natural, groundwater flow regime
present between the wetland recharge area and the wetland. As noted
above, it is the steady, sustained, base flow that is necessary to maintain
a healthy wetland ecosystem. Even though development is limited
within the Mountain Lake watershed, storm water contaminant
additions and water influx from water supply pipe trenches are
completely different (e.g., thermally, chemically, flow distribution,
nutrient-wise) and may alter the natural groundwater flow required by
wetland ecosystems. (Rubin/Tuxedo Land Trust)
Response 5-54:
Please refer to Responses 5-24, 5-39, 5-44 and 5-53. Stormwater
management systems will be design to meet or exceed NYSDEC
standards for water quality, please see Responses 5-7 and 5-40.
Comment 5-55:
The importance of determining a prudent protective buffer distance
outward from the Mountain Lake wetland should be assessed on a casespecific basis after baseline hydrologic data (shallow groundwater and
surface water), species inventories, and habitat assessment have been
conducted and characterized. In instances of particularly vulnerable
habitats (i.e., ecosystems), as much as a 1000-foot wide buffer may be
required to be ecologically effective. The calculation of the size of the
buffer area is driven by the need to assure continuation of the natural
water flow regime or equivalent substitute; since there are neither
surface water nor groundwater profiles of the natural water flow regime,
no width of buffer can be set with any scientific validity. By extension,
the same considerations apply to the viability of numerous other Tuxedo
Reserve wetlands where buildings, roads, and utility lines are planned
June 21, 2010
3.5-50
DRAFT
both within 100 feet of them, as well as outward beyond this within a
distance required to provide untainted and unaltered slow groundwater
fluxes. (Rubin/Tuxedo Land Trust)
Response 5-55:
The Proposed Modifications have been designed in accordance with
State and Federal regulatory standards. As new information has become
available or regulations are modified, the Applicant has adjusted the
Project to further minimize impacts to the environmental features of the
Project Site. Therefore consideration of wetland watersheds, drainage
areas, groundwater, and surface water flow patterns have been evaluated
in the field and verified by geologic and hydrologic surveys. Except
where minor impacts to wetlands were unavoidable, Tuxedo Reserve
has been designed to protect wetlands in open space, and/or increased
the minimum required buffers around wetlands, stream corridors, or
unique resources. For example, the Applicant has evaluated the value of
on-site isolated wetlands and those wetlands identified as vernal pools
that provide habitat for a special concern species. The Project with the
Proposed Modifications would protect not only the wetlands but the
prime migratory corridor utilized by the special concern species
traveling to and from the vernal pool habitat. In all cases strict
adherence to the regulatory setting has dictated the minimum setbacks
to wetlands. Where these minimums could not be achieved, or where
direct impacts to wetlands occur, mitigation for unavoidable impacts
will be provided as part of permit requirements established by the
NYSDEC or ACOE.
Comment 5-56:
The current proposal calls for too much development in the area around
Mountain Lake. The project as proposed would severely degrade this
water body, and would threaten adjacent wetlands as well. (Horowitz
1/1/10)
Response 5-56:
The proposed development within the Mountain Lake watershed is
minor when compared to the overall size of the watershed area. No
significant adverse impacts to Mountain Lake or the adjacent wetlands
are anticipated. Please refer to Responses 5-48 through 5-55.
TUXEDO LAKE WATERSHED
Comment 5-57:
The permit should also mandate that any actual adverse effect on
Tuxedo Lake must be mitigated promptly. The permit should require a
sample water analysis (or other reports as deemed necessary) to
establish a baseline condition of stormwater runoff before construction
begins. The report would be used to determine any increase or adverse
effects on Tuxedo Lake during and after development of the Reserve.
(Stebbins)
Response 5-57:
In response to comments from the Town’s Engineers, the Applicant
prepared a testing protocol for water quality, which was described on
page 3 of the Stormwater Management Report and was included as an
Appendix in the DSEIS. The proposed protocol is as follows:
DRAFT
3.5-51
June 21, 2010
“Before construction: test following any storm greater than 1.25 inches,
sampled at the location of the proposed outlet from Pocket Pond 5a:
•
•
•
•
•
Total suspended solids (TSS)
Total Phosphorous
Total Nitrogen
pH
Chloride.
During construction: test following any storm greater than 1.25 inches,
sampled at the outlets from sediment traps at locations of Pocket Pond
5a and Dry Swale 5b:
•
•
Total suspended solids (TSS)
If a spill occurs, test for appropriate substances (e.g. petroleum
products)
After construction: test following any storm greater than 1.25 inches,
sampled at the outlets from Pocket Pond 5a and Dry Swale 5b:
• Total suspended solids (TSS)
• Total Phosphorous
• Total Nitrogen
• pH
• Chloride.
Once data has been collected over a period of time, the protocol will be
reviewed to determine if it is appropriate to modify the frequency of
testing.”
Comment 5-58:
Building on or near the watershed was mentioned, and this will not only
pollute our water supply, the Tuxedo lake, but the buildings will
eventually sink and crack. Building on fissures is also mentioned, and
this will allow pollution to seep further into the water table, and
eventually into the Ramapo River. (David)
As a consultant for Tuxedo Reserve noted in their website, the site has
“delicate water ecology”. In the proposed Special Permit amendments,
how is this delicate water ecology protected? Proposing to build in the
watershed of a drinking water reservoir and near a spring fed small lake
does not seem very protective to me. Why is Related proposing to put
our drinking water at risk? Is ease of building the maximum units a
good enough reason to do so? (Steele 11/20/09)
Response 5-58:
June 21, 2010
It is unclear to which Tuxedo Reserve consultant’s website the
commenter refers, therefore context is lacking for this response.
However, according to the Applicant, the proposed project design
includes “integration of a complete water system”, which included
consideration of the use, management, and conservation of water
resources at the Tuxedo Reserve site. Examples of water system
components incorporated in the proposed plan and application materials
include the rain gardens with native plantings in place of traditional
grassy front lawns, the multiple systems of weirs and level spreaders
which protect wetland water levels, and the aquifer recharge basin
proposed within the Sloatsburg parcel. Over 85 percent of the
development proposed near Mountain Lake will not drain to Mountain
3.5-52
DRAFT
Lake, and the 15 percent of runoff that would go there will be treated in
excess of State and Town standards prior to entering the wetland area,
where the runoff will be further treated by natural filtration before it
eventually enters Mountain Lake. Tuxedo Reserve’s proposed design
does not have the potential to put the water supply of the Town of
Tuxedo, Tuxedo Reserve, or any downstream communities at risk. With
regard to Tuxedo Lake, approximately 30 acres of the 2,500-acre
watershed is located on Tuxedo Reserve property. Approximately 2.9
acres of impervious surface area would be introduced, representing 0.1
percent of the Tuxedo Lake watershed. The project proposes a number
of SMPs that would treat runoff prior to discharging from the site. Once
discharged, much of the runoff would be treated naturally en route prior
to entering Tuxedo Lake. No significant impact is anticipated. 6.
As stated above, the Proposed Modifications have been designed in
accordance with State and Federal regulatory requirements and Best
Management Practices (BMP’s). These requirements and BMP’s have
included the consideration of the site’s wetlands, watersheds, drainage
areas, groundwater, and surface water flow patterns and have been
evaluated in the field and verified by geologic and hydrologic surveys.
The standards for maintaining their integrity is included in the Tuxedo
Reserve Performance Standards for Stormwater Management that was
included as an appendix in the Technical Memorandum and DSEIS.
While bedrock fractures have been identified in the Mountain Lake
area, no impacts are anticipated to the deep groundwater aquifer or the
Ramapo River. Please refer to Responses 6-1 through 6-4. The presence
of fissures is not indicative of future settling of buildings or cracking.
All buildings will be constructed to meet or exceed New York State
building requirements for this region.
Comment 5-59:
In my Town (North Haledon) all 1,600 homes have private wells and
we get the water from you, I need your water protected. (R. George)
Response 5-59:
The Borough of North Haledon’s residents receive water from the
Manchester Utilities Authority (MUA). The MUA is supplied water by
the Passaic Valley Water Commission. The Upper Passaic River
watershed and the Passaic River comprise much of the water supply for
the water system.
Comment 5-60:
I live at 18 Spice Bush Lane in Laurel Ridge…The water quality is
another matter too. We are assured that the water that we drink is
potable, but it is hardly palatable, and I and many others have had to
buy filtration equipment devices so that we can drink the water.
Increased housing will not improve it, as many of the experts have
already pointed out. The original 2004 plan, in my estimation, already
strained the carrying capacity of the land. (Bumbar)
Response 5-60:
This comment concerns the overall Tuxedo Reserve project and is not
specific to the Proposed Modifications that are the subject of the
SDEIS. The potential impacts of the Tuxedo Reserve were fully
DRAFT
3.5-53
June 21, 2010
analyzed in the FEIS and documented in the Findings Statement. The
environmental review of these analyses led to the Project Approvals
granted in 2004. Nevertheless, it should be noted that the Project with
the Proposed Modifications will meet or exceed all NYSDEC and
NYSDOH requirements for the supply of potable water to both existing
residents and future residents of Tuxedo Reserve.
In addition, Laurel Ridge’s potable water supply is the Indian Kill
Reservoir. The Proposed Action does not lie within the Indian Kill
Reservoir Watershed and therefore will not affect that water supply.
Comment 5-61:
The development must not encroach on Tuxedo Lake watershed.
(Hays/Alleman)
Response 5-61:
Please refer to Response 5-7 for information on the project and its
orientation with regard to and potential impact on Tuxedo Lake and its
watershed.
RAMAPO RIVER WATERSHED
Comment 5-62:
According to the Supplemental EIS, about 87 percent of the Southern
Tract—where most of the development is to occur—drains directly into
the Ramapo River Basin, as well as into the Wanaque River Basin in
New Jersey. At present, the Southern Tract is covered with forest and
woodlands, steep slopes, wetlands, rock outcrops, bedrock and bedrock
fractures, and "overburden" (the up to 30 feet of unconsolidated
materials on top of the bedrock)—all of which, together and separately,
are essential for aquifer recharge. The project would introduce an
inordinate amount of impervious cover into the Ramapo watershed—
and under the Proposed Modifications, new impervious surfaces in the
Mountain Lake and Tuxedo Lake watersheds and near a DEC priority
wetland—that would include great concentrations in neighborhoods and
developed areas from roadways, parking areas, buildings, community
areas and structures, retaining walls estimated to number 50 and ranging
from 10 to 45 feet in height, and the 30,000 square feet of commercial
space. This doesn't include bedrock that will be exposed when the
"overburden" is removed during construction. All of this impervious
cover will reduce rainwater absorption into the ground to contribute to
long-term depletion of groundwater and the aquifer. (Kohn)
Response 5-62:
To the extent that this comment addresses the Project generally, these
matters have been fully analyzed in the FEIS. Tuxedo Reserve has been
designed in accordance with state and Federal regulatory requirements
and Best Management Practices (BMP’s). These requirements and
BMP’s have included the consideration of the site’s forest and
woodlands, steep slopes, wetlands, rock outcrops, bedrock and bedrock
fractures, and "overburden"—all of which, together and separately, are
essential for aquifer recharge. The standards for maintaining the
integrity of these resources is included in the Tuxedo Reserve
Performance Standards for Stormwater Management * Grading and
Steep Slope Protection * Road Standards * Sanitary Sewer * Water
June 21, 2010
3.5-54
DRAFT
Supply * Soil Erosion and Sediment Control* and Tree Surveys that
were included as an appendix to the Technical Memorandum, and
DSEIS.
As documented in the body of the SDEIS (Chapter 6: Hydrology and
Stormwater Management), under the existing condition, “[s]ince the
overburden (e.g., soil), where present, generally exhibits low
permeability, the rate of groundwater recharge afforded to the
underlying bedrock is expected to be typically low. Likewise,
infiltration of groundwater directly into the bedrock is low except where
bedrock fractures are directly exposed at grade. Where the rock is not
fractured and no overburden soil exists, water is forced to run-off
bedrock surfaces into adjacent low-lying areas.”
In the post-development condition, the SDEIS notes that “[m]ost of the
disturbed areas not developed as impervious surface would consist of
grassy areas which would not be subject to erosion and would help to
maintain local groundwater recharge of naturally filtered stormwater
runoff. In addition, treated runoff from impervious areas would be
collected and directed towards retention areas for assimilation into the
subsurface at strategic locations developed in the site plans to maintain
the amount of water available for recharge.”
Comment 5-63:
The recent proposal by United Water to build a desalinization plant is
based on a claim that the Ramapo watershed cannot sustain withdrawals
to meet demand. This constitutes new information and begs for closer
review of water issues related to the proposed Tuxedo Reserve. The
Reserve estimates a daily water demand of 803,237 gallons or an annual
amount of 293,181,505 gallons. United Water has apparently stated that
they will be able to provide this amount of water from the very
watershed they claim that is running out of water to provide Rockland
County. Which is the truth? I am asking that you take a hard look at
water reserves and at United Water’s ability to provide or not.
Watershed regional planning is needed and I trust that the Town of
Tuxedo can be counted on to protect our regional water supply. This is
especially important in light of new information from United Water and
the USGS studies that claim “We are facing deficits in water supply
from the Ramapo watershed even before Tuxedo Reserve is built.”
(Burnet 10/26/09)
Response 5-63:
Potable water sources and supply were the subjects of significant study
and analysis undertaken as part of the original environmental review of
the Project. The results of these efforts led to the determination that
sufficient water exists to support the project. The studies, analyses,
resulting data and conclusions were reviewed by the Lead Agency and
project approvals were granted in 2004 based in part on this
information. In 2007, a Water Supply Investigation Report, prepared by
Leggette, Brashears & Graham, Inc. for Related Companies was
submitted to the NYSDEC, NYSDOH and the Tuxedo Planning Board.
That document was incorporated into the DSEIS by reference. A copy is
available at the Town of Tuxedo Town Hall. Regarding the
DRAFT
3.5-55
June 21, 2010
commenter’s claim that United Water’s proposal to construct a
desalination plant in Rockland County constitutes new information,
please note that United Water has been planning to implement a longterm water supply project to increase the reliable water supply in
Rockland County for a number of years. According to the Draft EIS for
the Haverstraw Water Supply Project, United Water committed to
increase the long-term water supply for Rockland County in a Joint
Proposal approved by the Public Service Commission on December 14,
2006. 5 Please also note that the commenter did not provide a citation for
the quote regarding a water deficit. A review of the Haverstraw Water
Supply Project Draft EIS and the USGS website did not reveal such a
quotation.
Comment 5-64:
Ramapo Watershed goes all the way down to, past the New York State
border, into northern New Jersey. This is a shared watershed. This is
where we all get our drinking water from. I live in Rockland but I drink
the same water that everybody here in Tuxedo drinks. Basically it all
comes from the same basin, watershed, Ramapo River watershed. We
have a concern, multiple concerns. Especially we're concerned about
water quantity. We're also concerned about water quality. With regard
to quantity, Rockland County is being faced with being required to go
along with a plan by United Water to build a desalination plant on the
basis that United Water claims that our local watersheds do not contain
enough water, over time, to satisfy all the needs. Well, one of the
problems there is that we get 40 percent of Rockland County's drinking
water from the Ramapo watershed, which is the same watershed that
Tuxedo Reserve proposes to withdraw up to eight hundred thousand
gallons of water per day. So we're here to ask for better regional
planning, trans-boundary planning. We really haven't been included in
the process in Rockland County in terms of regional planning for water
withdrawals from Tuxedo Reserve, which really constitutes, in terms of
numbers, an entire new village compared to the sizes of the villages on
either side here. We have Sloatsburg, it's relatively small; Hillburn,
Village of Tuxedo, and then you have got another whole town
practically coming on line. (Burnet 11/23/09)
Response 5-64:
Please refer to Responses 5-7, 6-23 and 6-56.
Comment 5-65:
Specifically, and I won't have time to go into specifics here, but just to
say that it's true that there is thousands of tons of rock blasting, steep
slopes carved out, fractures affected; areas of forest turned into lawns,
with pesticide application and fertilizer application. All these things
affecting the watershed. As was mentioned there are known fractures
and pathways for contamination to occur. (Horowitz)
5
Haverstraw Water Supply Project DEIS dated September 26, 2008, Chapter 1, “Project Purpose and
Need,” page 1-9, available at http://haverstrawwatersupplyproject.com/ index.php/draft-environmentalimpact-study-deis.html
June 21, 2010
3.5-56
DRAFT
Response 5-65:
To the extent that this comment expresses concerns regarding the
Project generally, those matters were fully addressed in the FEIS.
Comment 5-66:
We must be extremely vigilant with regard to our most precious
resource, water. We must keep a watchful eye on any development near
any water source, in particular Tuxedo Reserve, Tuxedo Lake Reservoir
watershed and Mountain Lake. The Ramapo River watershed is in
trouble now, and for us and the two million people down river from us,
who rely on these waters, it is far too important to be cavalier with the
supply. Blasting alone can have a devastating effect on our water. It
seems somewhat hypocritical to teach conservation to our children, and
in the next breath tell them to watch what becomes of the land
surrounding their homes, as it is being readied for the largest master
planned community in Orange County. We can work on revitalizing
downtown Tuxedo, lower our carbon footprint, and ensure that all of us
who live here are secure in the knowledge that we have worked together
for the best possible outcome, with careful consideration for all aspects
of the development that are in the best interests of those of us who will
live with the consequences and decisions that have been made. Many of
us are here because we love to be able to watch bear, coyote,
rattlesnakes, and all manner of creatures as we walk. I hope one day to
be able to show my son artifacts found south of here, or a Northern
Leopard Frog, or watch a Least Shrew scamper through the grass
around Tuxedo Lake and Mountain Lake, knowing that we put forth the
most respectful effort for those of us who live here and the environment.
(Neuhauser)
Response 5-66:
This comment relates to the overall Tuxedo Reserve Project and is not
specific to the Proposed Modifications or the analyses in the SDEIS. As
stated above this SDEIS is focused on the Proposed Modifications to the
approved Project. The potential impacts of the Project were fully
analyzed in the FEIS and Findings Statement, which were the subject of
the Project Approvals. The SDEIS found that no significant adverse
impacts would result from the Proposed Modifications. The Project with
the Proposed Modifications would meet or exceed all NYSDEC and
NYSDOH requirements.
Comment 5-67:
Please deny the draft Supplemental EIS! Tuxedo Reserve will have
negative impacts on water and other important natural resources. The
site lies in the Ramapo River Watershed, a sole source aquifer which
supplies drinking water to 2.3 million New Jerseyans. This watershed is
protected in New Jersey under the NJ Highlands Act -- but NOT
upstream in NY State. Up to 64 million gallons per day are supplied to
the Wanaque Reservoir and up to 23 million gallons per day are piped
over to the Oradell Reservoir. If built, Tuxedo Reserve will undermine
New Jersey's efforts to protect Highlands water resources! (Lefebvre)
I strongly urge the Tuxedo Town Board to deny the draft Supplemental
EIS because of the highly negative impact on water quality and other
important natural resources. The Ramapo River watershed is a sole
DRAFT
3.5-57
June 21, 2010
source aquifer supplying drinking water to almost two and a half million
New Jerseyans. This aquifer would be severely compromised should the
Tuxedo Reserve development be allowed to move forward. (Macchio)
Response 5-67:
Regarding the Project’s potential for significant adverse impacts on the
Ramapo River watershed, please see the Responses 5-4 and 5-62. As
noted in those responses, the Project’s potential impacts on the Ramapo
River were studied in the FEIS and it was concluded that the Project
would not have the potential to generate any significant adverse impacts
to the Ramapo River. As concluded in the SDEIS and the Technical
Memorandum, the Proposed Modifications would not have the potential
to generate any new significant adverse impacts on the Ramapo River.
Comment 5-68:
When water is released to the surface by precipitation or melting, some
of it infiltrates the surface and becomes part of the groundwater system
and some flows over the surface as runoff. Because water flows down
hill, development projects that sit on high areas, such as Tuxedo
Reserve, impact all of the surface water bodies around them. The first
impact is from replacing permeable soils with hard impermeable
surfaces such as houses, roads and paved areas. This increases the
amount of runoff and decreases the amount of groundwater, thereby
lowering the water table. The quantity of runoff to surface water
significantly increases compared with natural conditions. As the runoff
is generated, it picks up any chemicals associated with the development
and because there is no filtering system as there would be in natural
conditions, it delivers them directly to surface water bodies. The main
chemicals of concern in a residential development are dissolved road
salt, motor oil and other fluids from automobiles, housing and
construction byproducts, and lawn care products (pesticides, herbicides,
fertilizer). All of these contaminants degrade surface water quality of
the small ponds and streams, Tuxedo Lake and Ramapo River. The
chemical of highest concern is lawn fertilizer. Combined with sewage
leaks and certain detergents, fertilizer will enhance the biological
productivity of surface water bodies. In a process called eutrophication,
the algae in the water bloom with the excess nutrients and as they die
are consumed by oxygen-consuming bacteria. The process removes
oxygen from the water thereby killing many of the fish and
invertebrates. If left unchecked, surface water bodies can become
devoid of life as a result. (Gates)
Response 5-68:
. Please refer to Responses 5-4, 5-7 and 5-40.
Comment 5-69:
The Sloatsburg area of the Highlands has a unique double aquifer
system to carry groundwater. The upper aquifer is from glacial deposits
and significantly thick in valleys. On hills, it is thin or absent. The
deeper aquifer is called a fractured rock aquifer. The Highlands are
made of very old crystalline rock that has long since lost the natural
porosity and permeability that is normally found in rocks and sediments.
In those materials, infiltrating water is naturally filtered of bacteria by
passing through narrow openings and contaminants are removed
June 21, 2010
3.5-58
DRAFT
through chemical reactions with the surface of the minerals as the water
winds its way down into the ground. In the rocks around Sloatsburg and
Tuxedo, groundwater is stored and transmitted in open cracks
(fractures) in the rocks. These fractures act like open pipes with very
limited filtering and chemical reaction capacity. Contaminants and
bacteria introduced at the surface can travel hundreds of feet below the
surface and into water wells in exactly the same condition as they
started out. Areas in crystalline rock are extremely environmentally
sensitive as a result. If rock is blasted or soil is removed from such
areas, the problem is exacerbated significantly. (Gates)
Response 5-69:
Please refer to Responses 6-1 through 6-4.
Comment 5-70:
The Highlands were home to extensive iron mining in the 18th and 19th
centuries. This mining has left a legacy of pollution in the Highlands
which includes extensive amounts of heavy metals. A current study
around Sterling Lake found that there are anomalous levels of the
contaminant chromium in the area. Surprisingly, the ground water is
clean. Closer investigation found that the organic rich humus layer at
the top of the soil profile is actively and strongly filtering the chromium,
nickel and other heavy metals from the infiltrating water. It is acting
like a big Brita filter for the groundwater. If this layer is removed as
would be the case in a landscaping and construction project, pollutants
such as heavy metals and organic pollutants would be swept into the
groundwater system and degrade the drinking water quality throughout
the area. Like surface water, groundwater flows downhill so activities in
elevated areas like Tuxedo Reserve will affect the quality of
groundwater for a significant distance into the communities surrounding
it. (Gates)
Response 5-70:
Please refer to Responses 5-7, 5-63, 6-23 and 6-56.
Comment 5-71:
Are you satisfied that Related has thoroughly studied estimated water
movement when they did not understand the simple topography of the
property during the previous negotiations? Can you really believe they
understand how storm water is going to flow after all the proposed
changes? Who is going to balance the system? Related? Can Tuxedo
depend on Tuxedo Reserve homeowners to manage swales in their
backyards? Are future homeowners going to want standing water on
their property especially if the swale is not draining properly? Who is
going to stop homeowners from just filling in the swales for a nice flat
backyard? What is the potential impact to the Tuxedo Lake Watershed?
Route 17? The Ramapo River Watershed? (Steele 11/20/09)
Response 5-71:
As part of the initial Project and again with respect to the Proposed
Modifications analyzed in the SDEIS, the Applicant developed and
modified, as necessary, a Stormwater Management Plan that will
comply with the requirements set forth in the NYSDEC Stormwater
Design Manual. The stormwater plans specify stormwater management
practices designed to treat and detain stormwater runoff, resulting in an
overall development that would result in peak discharge rates and
DRAFT
3.5-59
June 21, 2010
pollutant loads in compliance with the regulations. The end result of this
effort will be project specific stormwater pollution prevention plan(s)
that will require review and approval from the NYSDEC.
With regard to the homeowners, they are bound by the provisions of the
Project Approvals and all subsequent subdivision and site plan
approvals. Those approvals would require compliance with all approved
stormwater management plans. Thus, no homeowner is free to simply
fill in swales and destruction of mandated elements of stormwater
management plans would be a violation of law that would be enforced
by appropriate Town and other governmental agencies. In addition,
should there be a problem with a particular stormwater feature, the
Homeowner’s Association or the Town of Tuxedo (in the event a back
up district is established) are permitted to perform the required
maintenance at the cost of the homeowner. Please also refer to
Response 6-25.
Comment 5-72:
There are all sorts of specific reasons to stop this heavy handed
development. The thousands of tons of soil and rock that would be
blasted and removed, much of it from steep slopes, would result in
massive erosion and sedimentation. The amount of newly created
impervious surface (150 acres!) would have a staggering impact on
watershed function, and would result in reduced water quality and
increased flood risk. The impacts on water would be substantial and
negative from a massive increase of fertilizer and pesticide usage on
lawns, and from salt on the roads. High water qualities one of the most
critical benefits the forested wild land now provides. Various earth
scientists (from Rutgers and elsewhere) have expressed concerns about
the proclivity of the fractured bedrock to provide pathways for the
migration of pollutants, which would become a threat to existing and
potential groundwater and surface water supplies. (Horowitz 1/1/10)
Response 5-72:
To the extent that this comment expresses concerns regarding the
Project generally, those matters were fully addressed in the FEIS. Please
also refer to Responses 5-7, 5-40, 5-63 and 6-1 through 6-4.
➭
June 21, 2010
3.5-60
DRAFT
Chapter 3.6:
Comments and Responses – Hydrology and Stormwater
A. CHAPTER 6: HYDROLOGY AND STORMWATER
BEDROCK FRACTURES AND HYDROGEOLOGY
Comment 6-1:
On p. 6-5, the report states that "Since the overburden (e.g., soil), where
present, characteristically generally exhibits low permeability, the rate
of groundwater recharge afforded to the underlying bedrock is expected
to be typically low. Likewise, infiltration of groundwater directly into
the bedrock is low except where bedrock fractures are directly exposed
at grade." This begs the question that construction would expose
bedrock fractures and thus allow pollution to be rapidly introduced into
the ground water. Note that the HEnRI map showing bedrock fractures
is only a limited schematic as fine resolution is not shown. Fissures
mapped for Sterling Forge and Tome Valley show far more frequency.
(Wooters)
Response 6-1:
The commenter correctly notes that the rate of recharge through the
overburden is slow and that construction activities will expose bedrock
fractures where overburden thickness is less than the necessary
excavation depth for construction. Once the excavation and/or blasting
work is completed, areas where infrastructure and buildings will be built
will be recovered with unconsolidated overburden type materials.
Therefore, the roads and/or buildings will not be constructed directly
atop bedrock and the bedrock fracture traces referenced by the
commenter will not be directly exposed beneath these construction
elements.
In addition, the rate of infiltration through fractures is dependent on a
number of factors including the aperture of the fracture, the presence of
scaling, iron-oxide and clay buildup along the fractured surface, and the
degree of connection of the fracture to other fractures. As such, every
fracture that becomes exposed is not necessarily hydraulically
transmissive nor is it a direct conduit to the deeper aquifer zones from
where groundwater is being extracted from the planned pumping wells.
This is why the town required the developer to conduct a
comprehensive hydrogeologic exploration and testing program to prove
out the planned water supply system. The results of this comprehensive
study are documented in the May 2007 “Water Supply Investigation
Report; Tuxedo Reserve Development; Tuxedo, New York” (the
WSIR). This program included the review of available and published
geologic maps and aerial photographs, geophysical surveys and
numerous subsurface borings and pumping tests to characterize the
bedrock aquifer, its hydrogeologic properties, quality, etc. The study
DRAFT
3.6-1
June 21, 2010
concluded that the planned water supply can be provided from the
underlying aquifer system in a safe manner pursuant to New York State
Department of Environmental Conservation (NYSDEC) and New York
State Department of Health (NYSDOH) requirements.
The Town is also requiring the developer and its contractors to construct
the Project in accordance with proposed stormwater and construction
best management practices (BMPs) pursuant to NYSDEC and
NYSDOH standards. These practices are designed to prevent the release
of contamination during site development activities. The Town has also
required that the BMPs include the response actions that will be taken to
stop the release and quickly mitigate any impacts from potential
releases that may occur during construction.
Lastly, the results of the WISR exceed the level of detail used in the
mapping of “fissures” (i.e., fractures and faults) at Sterling Forest and
Torne Valley. However, the commenter correctly notes that the HEnRI
map does not identify all of the fractures traces (surficial manifestations
of potential bedrock structures such as fractures and faults) that the
Applicant considered in forming its conclusions regarding the local
hydrogeologic conditions.
Comment 6-2:
The houses to be built between Mountain Lake and Bog Meadow are in
an area of underlying bedrock. Usually rain water and housing effluent
flows through land with sand and silt that allows the water to cleanse.
Bedrock has factures through which water flows, quickly, like through a
pipe, with not enough barriers to allow it to be cleansed. The bedrock in
the Mountain Lake area has factures which run into the Ramapo River.
(Scher)
Response 6-2:
The proposed development will incorporate an on-site water supply and
stormwater management system, and an off-site wastewater treatment
and disposal system (e.g., “housing effluent”). As such, only stormwater
runoff will come in contact (as overland flow and infiltrating recharge)
with the geologic materials underlying the site, consistent with its fate
under existing conditions. No wastewater would be discharged to the
geologic materials underlying the property as all wastewater would be
transported to and processed at a sewage treatment plant via piping
connections. Furthermore, the BMPs to be implemented during
construction and following site development would provide for
appropriate treatment of stormwater before it infiltrates the subsurface
geologic materials and becomes assimilated with the underlying
groundwater.
A fracture trace is a surficial expression of a linear structure associated
with the underlying bedrock. Their presence does not reflect the vertical
extent, angle of inclination, degree of openness or its degree of
connection to other hydraulically active fractures. Aquifer
characteristics and transmissive properties such as these are evaluated
through the performance of aquifer tests on an aggregate basis, like
those documented in the May 2007 “Water Supply Investigation
Report; Tuxedo Reserve Development; Tuxedo, New York” (the
June 21, 2010
3.6-2
DRAFT
Chapter 3.6: Comments and Responses – Hydrology and Stormwater
WSIR). This program included the review of available and published
underlying aquifer system in a safe manner pursuant to NYSDEC and
NYSDOH requirements.
Comment 6-3:
This bed rock geologic map of Tuxedo shows a pervasive and complex
system of fractures. Each blue line represents a fracture which is
transporting water. From this map it is obvious that pollution for
construction and housing will have multiple routes into the
groundwater, potentially degrading the water for Tuxedo Reserve
residents, and those downstream. And even degradation of water quality
for those millions in New Jersey would result in an interstate issue with
the federal government also involved. Needless to say this is to be
avoided. This project has to be given a proper study of how it would
affect New Jersey. (Wissler)
Response 6-3:
It’s not clear what map the commenter is referring to. If it is Figure 6-3
from Section 6 of the SEIS, the blue lines referenced refer to
streams/water bodies. The bedrock fracture lineaments are represented
in red. The WSIR program included the review of available and
published geologic maps and aerial photographs, geophysical surveys
and numerous subsurface borings, and pumping tests to characterize the
NYSDOH requirements with no anticipated impacts to the State of New
Jersey.
All stormwater management practices will meet or exceed NYSDEC
and NYSDOH regulations. No significant adverse environmental
impacts to New Jersey’s water quality are anticipated.
Comment 6-4:
DRAFT
I specifically wanted to comment on the SDEIS regarding groundwater.
As you know many of us have come up and tried to help identify faults
in the application. I would like to present one here now. The SDEIS
states, and I quote, "Soils present above the bed rock in the proposed
clubhouse area will provide a filtration barrier between the ground
surface and the underlying groundwater system", close quote. Well we
also have come to know, based upon the well logs of the two closest
wells, number W. C.-1, and W. C.-4, that this proposed barrier isn't very
much at all. As a matter of fact at W. C.-1 it measures a mere six inches.
The one at W. C.-4 a mere three and a half feet. Also as we know at site
preparation this thickness would become even less. With any normal
level of porosity, that's how the water runs, this thickness of soil would
be too thin to offer any significant protection to the groundwater. Look,
this is just one example of countless ones now that show that this
application, the SEIS is woefully inadequate. (Kilduff)
3.6-3
June 21, 2010
(Page 6-10, first paragraph, Mountain Lake) The SDEIS states,
"Furthermore, soils present above the bedrock in the proposed
clubhouse area will provide a filtration barrier between the ground
surface and the underlying ground water system." Based on the well
logs of the two closest wells, WC-1 and WC-4, the soils are very thin in
this vicinity, measuring just 6 inches at WC-1, and 3.5 feet at WC-4.
With site preparation, this thickness could be even less. With any
normal level of porosity, this thickness of soil would be too thin to offer
any significant barrier to water-borne contamination. (Gross 12/31/09)
Response 6-4:
It is not a given that water flows through all fractures with the same
degree of expedience; likewise, it is not a given that all locations at the
Site are underlain by water-bearing and transmitting fractured bedrock.
In the instance of the locations of Wells WC-1 and WC-4, it should be
noted that though the depth to bedrock is shallow (and the
corresponding existing soil thickness limited), the initial encounter with
fractures ranged from 50 feet below grade to non-existent, respectively.
As such, any water being introduced at these locations would not be
afforded the opportunity to recharge the local groundwater. This
understanding of the local hydrogeology (based on the extensive drilling
and hydraulic testing program implemented by Tuxedo Reserve as part
of the work summarized in the WSIR) is incorporated as a cornerstone
of the stormwater management and related BMPs being proposed by
Tuxedo Reserve and its goals for on-site water quality and quantity
protection. These BMPs include but are not limited to Rain Gardens,
Grann Swales, Water Quality Basins, etc.
Comment 6-5:
Also on p. 5 the report states that "the accumulated water in the lake is
‘perched’ atop underlying bedrock of very low permeability with
limited fracture occurrence." This is the same thinking that led to the
Tome Valley landfill and its millions of dollars in mitigation. (Wooters)
Response 6-5:
References made to “the accumulated water in the lake” being
“‘perched’ atop underlying bedrock of very low permeability with
limited fracture occurrence” are specific to the relationship between
surface water and groundwater recharge and related quantities in the
Mountain Lake part of the Site. The hydrogeology of this portion of the
Site has been evaluated extensively and prior to any of the proposed
development activities. Furthermore, a significant portion of this area is
proposed for preservation, and the portion that is proposed for
development will be used for residential housing and transportation. As
such, an attempt to correlate conditions associated with an initially
“non-engineered” landfill, turned Superfund site, constructed in the
early 1970s in contact with a sand and gravel aquifer recharge zone, and
the proposed development are unfounded. All stormwater management
practices will meet or exceed NYSDEC and NYSDOH regulations.
Comment 6-6:
(Pages 6-3 to 6-5, Groundwater) The discussion in the DSEIS makes a
drawn-out case to show that various surface water features and
groundwater resources are at different elevations and may act
June 21, 2010
3.6-4
DRAFT
independently. However, the bottom line is how the groundwater
systems are recharged, and whether the proposed Mountain Lake
development poses a particular risk by being placed over a major
fracture trace. To that end, perhaps the most significant statement in the
DSEIS is, "infiltration of groundwater directly into the bedrock is low
except where bedrock fractures are directly exposed at grade." It is
assumed that "at grade" is meant to include exposures directly below
grade as well. It is notable, then that the amount of soil above bedrock
in this area is extremely thin, being reported as 3.5 feet at Well WC-4,
and only six inches at WC-1. Site work may even expose more bedrock.
The fracture trace will have a linear surface expression in some location
in this vicinity, and the opening will likely be under a very thin layer of
soil. No matter what the groundwater levels have been found to be in
various locations, it is the surface exposure of this fracture trace that is
most at issue, and the likelihood of contaminants, such as road
hydrocarbons and heavy metals, pesticides, and herbicides, to be carried
by runoff into the fracture and contaminate groundwater resources, no
matter at what level they are found. (Gross 12/31/09)
Response 6-6:
The WSIR program included the review of available and published
NYSDOH requirements. The extensive aquifer testing revealed no
connection between the shallow and deep aquifer systems. The
proposed stormwater management system would provide treatment of
stormwater quality prior to discharge. Consequently, no significant
adverse impacts to groundwater resources are anticipated. All
stormwater management practices will meet or exceed NYSDEC and
NYSDOH regulations.
Comment 6-7:
(Page 6-5, last paragraph, Groundwater) The discussion in this
paragraph demonstrates that the water level in Mountain Lake is not
dependent on the deep lying groundwater resources. However, the
discussion then makes a quantum leap assumption to state, "land use
changes associated with the proposed Development to the south of
Mountain Lake would not influence the yield or quality of groundwater
at well LBG-1." This conclusion can not be drawn from the evidence
presented. The fact that Mountain Lake is perched above impervious
material present under the lake, can not be used to conclude that the
introduction of sources of contamination south of the lake, and at a
lower elevation, would not enter exposures in the bedrock and
contaminate groundwater resources. In fact, in noting the presence of
fractured outcrops observed north of the lake, the DSEIS notes on page
6-3 that these are "conditions which afford the natural infiltration and
storage of precipitation runoff into the subsurface environment. This
infiltration can be limited to the upper several to tens of feet of the
underlying bedrock, or continue to deeper portions of the local and
DRAFT
3.6-5
June 21, 2010
regional fractured bedrock aquifer system." Contrary to the conclusion
at the bottom of page 6-5, therefore, the proposed land use changes over
the identified fracture trace would indeed constitute a significant threat
to groundwater resources. (Gross 12/31/09)
Response 6-7:
The detailed and extensive hydrogeologic exploration and testing
program completed by the applicant included the collection of
numerous rounds of water-level data (from wetlands, surface-water
bodies, piezometers, and wells) during non-pumping (static) and
pumping (multi-well aquifer-test) conditions. The testing results
revealed no discernable hydraulic connectivity between the shallow
(surface water, overburden aquifer, and shallow bedrock fracture zone)
and deep (deep bedrock fracture zone) water systems. As such,
groundwater recharge supporting the pumping of Well LBG-1 was not
derived from the potential fracture system occurring to the south of
Mountain Lake, and so “land use changes associated with the proposed
Development to the south of Mountain Lake are not anticipated to
influence the yield or quality of groundwater at Well LBG-1.”
Comment 6-8:
(Page 6-9, last paragraph - page 6-10, Groundwater) The DSEIS claims
that the fracture trace "as depicted in Figure 6-3" underlies just two
proposed lots and the proposed clubhouse site. However, the map
provided as Figure 6-3, which was prepared by the Highlands
Environmental Research Institute (HEnRI), without any attribution by
the DSEIS authors, is only intended to depict the approximate location
of the fracture trace, and can not be relied upon to conclusively state
that only these specific lots overlie the fracture trace. It appears that the
fracture trace may run under at least ten of the residential lots, the
proposed clubhouse, and three of the proposed roads. (Gross 12/31/09)
Response 6-8:
Comment noted. The focus of the comment is related to water
infiltration into the drinking water aquifer. The extensive field testing
completed by the applicant revealed no discernable hydraulic
connectivity between the shallow (surface water, overburden aquifer,
and shallow bedrock fracture zone) and deep (deep bedrock fracture
zone) water systems.
Comment 6-9:
The proposed Mountain Lake community and the remaining portions of
the Tuxedo Reserve property will be serviced by an on-site public
community water supply obtained from wells constructed in a fractured
bedrock aquifer. The long-term community water quality may be at risk
because significant development is planned directly above and within a
major portion of the aquifer recharge zone (illustrated in Figure 2). Site
groundwater flow directions and pumping test data, as presented by the
applicant (e.g., Figures 3, 5, and 7; 2007 Water Supply Investigation
Report – incorporated by reference into the SEIS, see page 6-3),
document groundwater flow from the planned Tuxedo Reserve
development areas down gradient into zones of Reserve pumping well
influence. Thus, the risk of project contaminants infiltrating downward
and directly into the project’s own community water supply is real. No
June 21, 2010
3.6-6
DRAFT
assessment of aquifer vulnerability and contaminant loading are
presented, nor is a wellhead protection plan provided (i.e., no
assessment of the impacts that planned land and water uses located in
the project area may have on the aquifer serving project wells has been
conducted). These issues go directly to the long-term health and safety
of the Mountain Lake community, as well as to the entire Tuxedo
Reserve community. These are significant and critical omissions of the
SEIS that warrant immediate investigation. (Rubin/Tuxedo Land Trust)
Response 6-9:
The conclusions rendered on behalf of Tuxedo Reserve in the WSIR
were formulated to address the water-resource impact concerns of
NYSDEC, NYSDOH, and the Tuxedo Planning Board. They are based
on extensive testing and analyses that go beyond those typically
required for the development of a public community water supply, as
indicated by NYSDEC and NYSDOH. Furthermore the conducted
testing evaluated water resource impacts associated with the entire
Development, not just the Phase I portion addressed by the DSEIS. The
proposed designation of wellhead protection areas reflected in the site
development plans are consistent with the applicable NYSDOH
regulations. The detailed hydrogeologic exploration and testing program
completed for Tuxedo Reserve in support of the WSIR included the
collection of numerous rounds of water-level data (from wetlands,
surface-water bodies, piezometers, and wells) during non-pumping
(static) and pumping (multi-well aquifer-test) conditions. Such testing is
technically accepted as the primary method for assessing the impacts on
water resources and nearby water supplies for proposed groundwater
supply development. As indicated by the comprehensive WSIR and
related testing completed in accordance with the corresponding
NYSDEC-approved aquifer test work plan, the proposed use of the
respective wells will not adversely impact the on-site or off-site water
resources, and the proposed stormwater BMP’s and protective
NYSDOH-required land-use restrictions associated with the wellhead
areas will afford adequate protection of these wells from on-site
development. All stormwater management practices will meet or exceed
NYSDEC and NYSDOH regulations.
Comment 6-10:
It is not clear whether the State reviewing authority, and possibly the
Town Board, are aware that significant portions of the proposed Tuxedo
Reserve development directly overlie the aquifer planned for project
water supply. Project areas within aquifer recharge zones will have
concentrated housing units, vehicles, roadways, fuel tanks, and lawns all being potential sources of storm water contamination. Elements of an
effective groundwater protection program are those that seek to prevent
potential sources of contamination from being released where they may
degrade the groundwater quality. Once groundwater quality is degraded,
it is extremely costly and exceedingly difficult to return it to its pristine,
usable condition. It is for this reason that the goal of the federal
wellhead protection program is to protect public water supply wellhead
areas from contaminants which may have any adverse effects on the
DRAFT
3.6-7
June 21, 2010
health of people. There appears to be no designated wellhead protection
area whatsoever. (Rubin/Tuxedo Land Trust)
Response 6-10:
Each of the proposed Tuxedo Reserve supply wells have been assigned
corresponding restrictive land-use areas around the corresponding
wellheads as required by NYSDOH for the purpose of protecting water
quality. These land use restrictions for the purposes of well head
protection have been incorporated into the Smart Code.
Comment 6-11:
The applicant provides documentation that precipitation incident to the
project area recharges the underlying aquifer that is the planned
community water supply. Project related contaminants may readily
combine with this precipitation, thus also directly recharging the
bedrock aquifer. Relative to the Mountain Lake community water
supply (i.e., part of the Tuxedo Reserve water supply), the SEIS relies
on the Water Supply Investigation Report; Tuxedo Reserve
Development; Tuxedo, New York dated May 2007 and prepared for
The Related Group. This report (page 16) addresses groundwater
recharge:
“The ground-water bearing formations underlying the Property receive
recharge primarily from infiltrating precipitation. Recharge occurs
when and where the precipitation infiltrates through the surficial
materials (e.g. overburden, exposed bedrock fractures) and becomes
assimilated into the local ground-water resource. … Based on recharge
rates in till-covered fractured bedrock aquifers with similar
hydrogeologic settings, the average estimated natural ground-water
recharge rate is expected to conservatively range between 10 to 12
inches per year for the Development. … Based on the NJGS analysis of
recharge for that portion of the aquifer in New Jersey, the average
recharge calculated for this area is approximately 16-inches per year.
Assuming a conservative average rate of 10 inches per year and an
estimated Development area of about 1,200 acres, the total amount of
ground-water recharge is about 900,000 gpd or 625 gpm. This value
exceeds both the proposed average daily demand of 257 gpm and the
peak demand of 580 gpm. Therefore, the amount of available recharge
is greater than the proposed ground-water supply use at the property.
Based on this available surplus recharge, the proposed use of the onSite supply wells at the Development by Related at 257 gpm (average
daily demand) and 580 gpm (peak demand) should not adversely impact
the local ground-water resources and off-Site water supplies.”
The 2007 Water Supply Investigation Report (WSIR) has a number of
large maps that portray groundwater flow directions throughout the
Tuxedo Reserve project area under both non-pumping and pumping
conditions. Importantly, the natural groundwater flow directions may
generally be characterized as flowing radially outward from the Tuxedo
Reserve site (i.e., from an area of higher topographic elevation to lower
down gradient elevations to the west, east, and south – WSIR Figures 3,
5, and 7). These applicant-created groundwater flow maps reveal
significant groundwater flow to the west to Tuxedo Lake and to the east
to the Ramapo River. Storm water and other on-site contaminants
associated with the large-scale Tuxedo Reserve development will
discharge to these water bodies via groundwater transport. Similarly,
June 21, 2010
3.6-8
DRAFT
overland contaminant mobilization is also likely to reach Tuxedo Lake
and the Ramapo River via surface water.
For this radially outward groundwater flow pattern to occur,
groundwater recharge must be significant and it must originate
throughout much of the project site. This is further documented by
water level rises in piezometers coincident with precipitation events.
Thus, project related contaminants (e.g., herbicides, pesticides,
hydrocarbons, road salt) will directly recharge the underlying
groundwater aquifer and will primarily flow to two receptor locations:
1) inward into Tuxedo Reserve community water supply wells, and 2)
outward to off-site receptor watersheds to the west and east. From a
wellhead protection and community health standpoint, this is
undesirable. (Rubin/Tuxedo Land Trust)
Response 6-11:
The extensive aquifer testing revealed no connection between the
shallow and deep aquifer systems and confirmed that use of the supply
wells will not adversely affect on-site or off-site water resources. All
construction and stormwater NYSDEC BMPs are intended to address
concerns related to water quality. No significant adverse impacts to
groundwater resources are anticipated.
Comment 6-12:
The Tuxedo Reserve project plans to use five wells as a groundwater
supply. The distribution lines are portrayed in HydroQuest Figure 1.
Simultaneous pumping tests were conducted to determine the cones of
depression or the areal extent of the recharge area tributary to each well.
The “cones” of depression (i.e., the area surrounding a well within
which groundwater is drawn inward toward a pumping well) are more
elliptical than cone-shaped because the aquifer is anisotropic and
heterogeneous in nature, typically drawing groundwater from
interconnected fractures in the bedrock (i.e., secondary porosity).
Excellent examples of these fractures were observed both immediately
southeast and southwest of Mountain Lake. These near vertical fractures
were measured as trending N31°E to N38°E and almost certainly extend
deep into the subsurface. These fractures are associated with a
lineament that can be observed on aerial photography. These bedrock
fractures, with little overlying soil mantle, provide a direct infiltration
pathway for rainfall, snowmelt, and any overland water flow into the
underlying bedrock aquifer. The SEIS (page 6-3) states that infiltration
can be limited to the upper several tens of feet of the underlying
bedrock, or continue to deeper portions of the local and regional
fractured bedrock aquifer system. This is the means by which the
aquifer is recharged and a reason why a groundwater source was sought
near Mountain Lake. However, because Mountain Lake is situated
above this fracture domain, there is a possibility that long-term,
continuous, pumping (vs. relatively short-term aquifer testing that was
conducted) may induce downward lake water infiltration into the
fracture network present here (even if semi-confined aquifer conditions
exist). (Rubin/Tuxedo Land Trust)
Response 6-12:
See Responses 6-2 and 6-7 regarding the relationship between fracture
traces and actual water-transmitting fractures. As discussed in Chapter
6, Hydrology and Stormwater Management,” of this DSEIS, based on
DRAFT
3.6-9
June 21, 2010
the corresponding water level data collected during the aquifer testing
program, no discernible hydraulic connectivity was observed between
Mountain Lake and related surface waters (e.g., wetlands), and the
deeper groundwater. As such, it was concluded that the shallow
groundwater (overburden and uppermost fractured/weathered bedrock)
that contributes seepage water (i.e., springs) to Mountain Lake is not
influenced by the deeper groundwater occurring in the fractured
bedrock aquifer. Therefore, the well is not considered directly
dependent on groundwater flow associated with the northeast/southwest
oriented fracture trace, though the lake most likely is. Instead, well
LBG-1 is directly dependent on deeper fractures of differing orientation
(e.g., the deep fracture encountered below the static water level). The
NYSDEC/NYSDOH approved aquifer testing program completed on
behalf of Tuxedo Reserve was extremely conservative and went beyond
the typical technical requirements, as well as simulation of actual well
usage. As such, several degrees of conservatism were built into the
testing program in order to project the potential impacts of adverse
hydrologic conditions that could influence long-term water-supply
availability for the Proposed Development, and are described in the
WSIR. Consequently, land use changes associated with the Proposed
Development to the south of Mountain Lake are not expected to
influence the yield or quality of groundwater at well LBG-1.
Comment 6-13:
The applicant conducted pumping tests, monitoring a number of
locations including production wells, monitoring wells, and surface
locations. The approximate maximum areal extent of each of the five
cones of depression was interpreted from large maps maintained by the
Town of Tuxedo as part of a 2007 report titled: Water Supply
Investigation Report; Tuxedo Reserve Development Tuxedo, New
York. Portions of these maps were scanned, brought into a GIS
database, georeferenced, interpreted, and digitized. This made it
possible to compare the cones of depression with surface water bodies,
roads, and development buildings (Figure 2). The cones of depression
are really extensive and might conceivably, with time, overlap resulting
in less water availability than the quantities pump tested.
Response 6-13:
The comment is noted. The extensive field testing conducted by the
Applicant revealed no discernible hydraulic connectivity between
Mountain Lake and related surface waters (e.g., wetlands), and the
deeper groundwater. The NYSDEC/NYSDOH approved aquifer testing
program completed on behalf of Tuxedo Reserve was extremely
conservative and went beyond the typical technical requirements, as
well as simulation of actual well usage. As such, several degrees of
conservatism were built into the testing program in order to project the
potential impacts of adverse hydrologic conditions that could influence
long-term water-supply availability for the Proposed Development, and
are described in the WSIR. Please refer the letter from NYSDOH in
Appendix L.
June 21, 2010
3.6-10
DRAFT
Comment 6-14:
Reference to HydroQuest Figure 2 documents that the cone of
depression that recharges the water supply well situated northeast of
Mountain Lake (LBG-1) extends beneath Mountain Lake and its
surrounding wetland. The cones of depression depicted on Figure 2 are
plotted conservatively. Based on drawdown in monitoring wells, the
applicant calculated that the radius-of-influence for well LBG-1 is
approximately 2,700 feet. Part of this assessment is based on drawdown
that occurred in monitoring well WC-4 (see Figure 6-2, SEIS for
location) during the first comprehensive pumping test. The water level
in WC-4 was drawn down 1.27 feet. This well is located within the
Mountain Lake community near the southwestern tip of the State
wetland that surrounds Mountain Lake, some 2,562 feet from water
supply well LBG-1. Thus, storm water contaminants from a portion of
the Mountain Lake community may potentially adversely impact the
water quality of the Tuxedo Reserve water supply. (Rubin/Tuxedo Land
Trust)
Response 6-14:
Please refer to Responses 6-7 and 6-13. The 1.27 feet of drawdown
referenced for Well WC-4 is considered minimal and reflective of the
remote southern portion of the aquifer influenced by the pumping of
Well LBG-1 under extremely conservative conditions. The majority of
the portion of the aquifer occurring closer than Well WC-4 in a
southerly direction from Well LBG-1 is overlain by Mountain Lake and
adjoining wetlands which are not anticipated to be developed. This
inherent land development restriction, in addition to proposed
stormwater and construction management BMPs, along with the
limitations on fracture water-transmitting characteristics are expected to
be adequately protective of water quality for Well LBG-1 and other
Development water supply wells.
Comment 6-15:
Similarly, during dry times when no water flows into Mountain Lake
from its small watershed area (74-acres; SEIS page 6-2), it is possible
that the lake and its wetland may become dewatered. This may be
indicated by slightly lowered water levels recorded in near lakeside
monitoring points PZ-ML, PZ-ML2, and SG-ML during the second
comprehensive pumping test (Table 3-1; 2007 Water Supply
Investigation Report). Lake and wetland water level drawdown would
adversely impact wetland ecology. (Rubin/Tuxedo Land Trust)
Response 6-15:
The detailed and extensive hydrogeologic exploration and testing
program completed by the applicant included the collection of
numerous rounds of water-level data (from wetlands, surface-water
bodies, piezometers, and wells) during non-pumping (static) and
pumping (multi-well aquifer-test) conditions. The testing results
revealed no discernable hydraulic connectivity between the shallow
(wetlands, surface water, overburden aquifer, and shallow bedrock
fracture zone) and deep (deep bedrock fracture zone) water systems. As
such, groundwater recharge supporting the pumping of Well LBG-1
was not derived from the potential fracture system occurring to the
south of Mountain Lake, and so use of the supply wells are not
anticipated to influence the wetland ecology.
DRAFT
3.6-11
June 21, 2010
Comment 6-16:
Two pumping tests were conducted on Mountain Lake well LBG-1,
both at 130 gallons per minute. The first test drew the static water level
down 104.18 feet to minus 253.03 feet (below the top of the casing)
after 72.8 hours. When drawdown vs. time is plotted on semi-log paper
the drawdown at 180 days (a time period used in water supply
investigations) is projected to increase to about minus 324 feet. The
second pumping test drew the static water level down 75.01 feet to
minus 245.32 feet at 74.1 hours. This projects to a 180-day drawdown
of about minus 295 feet. These numbers are important because
reference to the boring log of well LBG-1 indicates that significant
groundwater was not encountered until minus 334 feet. The fact that the
well was drilled to 590 feet may have little or no relationship to
groundwater availability. A fracture here at minus 334 feet yielded over
100 gallons per minute. It is quite possible that once the water level in
well LBG-1 drops below minus 334 feet that groundwater availability
may drop appreciably. This level is only 10 feet below the 180-day
projected drawdown associated with the first pumping test conducted
from March 26 to March 29, 2007 – typically a wet period. The 2007
Water Supply Investigation Report documents that conditions were wet
in the time period of both simultaneous pumping tests (2007 Water
Supply Investigation Report, page 8). (Rubin/Tuxedo Land Trust)
Response 6-16:
The 180-day plot is a theoretical tool that is recommended by NYSDEC
to identify the maximum safe pumping rate and establish the theoretical
area of influence of the pumping wells. The plot is derived by using
pumping test data including the constant discharge rate during the
pumping test. As discussed in Response 6-13, the discharge rate utilized
during the aquifer testing program was extremely conservative and went
beyond the typical technical requirements, as well as simulation of
actual well usage (for new community water supplies, NYSDOH
requires a minimum of two sources of supply, each capable of
delivering twice the average daily water demand). The theoretical 180day drawdown plot indicated that the deep bedrock aquifer would
supply sufficient water if the wells were pumped at non-stop constant
rates that were well beyond the projected usage. The data gained from
this theoretical graph is just one of the tools utilized by the groundwater
professional to confirm the safe pumping rates for production wells. The
WSIR concluded that the deep bedrock aquifer will be sufficient in
providing long term water supply availability, and the aquifer testing
program was approved by NYSDEC and NYSDOH. The maximum safe
pumping rate is not anticipated to be influenced by wet conditions at the
surface. Since the water system exists in deep bedrock fractures and
there is no discernable connection to the shallow groundwater system,
instantaneous recharge from surface precipitation is not likely. Deep
bedrock aquifers have shown to require an extended timeframe for
surface water to recharge into deep bedrock fractures.
Comment 6-17:
HydroQuest recommends that a longer term pumping test (e.g., 30 day
constant rate test at maximum anticipated yield) be conducted on well
LBG-1 during a dry summer or fall period to adequately assess the
June 21, 2010
3.6-12
DRAFT
potential adverse environmental impact to Mountain Lake and its
wetland. This supplemental aquifer test should be conducted in advance
of the FEIS. (Rubin/Tuxedo Land Trust)
Response 6-17:
The request made by HydroQuest for a longer term pumping test is
unwarranted. The NYSDEC/NYSDOH approved aquifer testing
program completed on behalf of Tuxedo Reserve was extremely
conservative and went beyond the typical technical requirements, as
well as simulation of actual well usage. As such, several degrees of
conservatism were built into the testing program in order to project the
potential impacts of adverse hydrologic conditions that could influence
long-term water-supply availability for the proposed Development, and
are described in the WSIR. Since the aquifer test went above and
beyond what is typically required by the NYSDEC/NYSDOH for new
community water supply systems, and the aquifer testing program was
reviewed and approved by NYSDEC/NYSDOH, no supplemental
aquifer testing is warranted.
Comment 6-18:
It is likely that project area wells reflect a mix of unconfined, semiconfined, and confined wells – some receiving recharge from directly
on-site and some receiving recharge from farther away. Regardless of
the exact source of each individual well, what matters in terms of the
long-term sustainability of the groundwater source is that the aquifer be
capable of producing the high yields required during long periods of
drought. Reference to the 2007 Water Supply Investigation Report
shows a number of semi-log plots of drawdown vs. elapsed time that
project well water level at 180 days for each of the supply wells. These
plots are deceiving because they show projected 180-day water levels
well above the pump inlet ports. In reality, one could simply drill a well
to any depth below the projected 180-day water level and few would
question that an adequate water supply would always be present.
However, in a fractured bedrock aquifer what really matters is the depth
that significant water was encountered and whether or not the aquifer
will be dewatered when the drawdown level in a well reaches the depth
of the water-bearing fracture(s). Using the example above for well
LBG-1, the pre-pumping static water level in the well was at minus
148.85 feet. At the end of the test, the water level had dropped to minus
253.03 feet, down some 104.18 feet. By adding together the static water
level in the well and the 180-day projected water level drawdown (175
feet), the 180-day water level is found to be some 324 feet below the
ground surface or about 10 feet above the top of the fracture. Whether
sufficient, or any, appreciable groundwater will still be present after the
aquifer water level has been drawn 175 feet is questionable.
Response 6-18:
The NYSDEC/NYSDOH pumping test requirements for new
community water supply systems are designed to determine whether the
proposed supply system will adequately meet the proposed design
parameters without adversely affecting other users or systems that are
connected to the same aquifer. NYSDEC utilized the pumping test data,
which was compiled by following all of the NYSDEC requirements for
DRAFT
3.6-13
June 21, 2010
Water Supply Applications, to make a determination that the deep
bedrock aquifer will adequately meet the needs of the proposed project,
including long-term water supply availability.
The 180-day plot is a theoretical tool that is recommended by the
NYSDEC to identify the maximum safe pumping rate, and establish the
theoretical area of influence of the pumping wells. The plot is derived
by using pumping test data including the constant discharge rate during
the pumping test. The discharge rate utilized during the aquifer testing
program was extremely conservative and went beyond the typical
technical requirements, as well as simulation of actual well usage (for
new community water supplies, NYSDOH requires a minimum of two
sources of supply, each capable of delivering twice the average daily
water demand). The theoretical 180-day drawdown plot indicated that
the deep bedrock aquifer would supply sufficient water if the wells were
pumped at non-stop constant rates that were well beyond the projected
usage. The data gained from this theoretical graph is just one of the
tools utilized by the groundwater professional to confirm the safe
pumping rates for production wells. The WSIR concluded that the deep
bedrock aquifer will be sufficient in providing long term water supply
availability, and the aquifer testing program was approved by NYSDEC
and NYSDOH. The maximum safe pumping rate was not anticipated to
be influenced by wet conditions at the surface. Since the water system
exists in deep bedrock fractures, and there is no discernable connection
to the shallow groundwater system, instantaneous recharge from surface
precipitation is not likely.
Comment 6-19:
June 21, 2010
This situation is far more pronounced, and perhaps dire, for some of the
other project water supply wells that are planned for use by the
Mountain Lake community and others. For example, at well LBG-2, a
planned 250 gallon per minute water source, the 180-day water level
projection required in New York State water supply investigations is
some 22 feet below the top of the water-bearing fracture at minus 349
feet. Similarly, two pumping tests conducted on well LBG-6, a 130 gpm
water source, showed the 180-day projected water level to be about 8
feet above and then 58 feet below the top of the major, discrete, waterbearing fracture. In a few cases, while the well logs are not completely
clear as to the exact elevation of discrete water bearing fractures, there
appears to be evidence that 180-day water levels will fall below or
slightly above reported fracture depths. Clearly, these projections when
represented against the elevation of discrete water-bearing fractures vs.
an arbitrarily selected elevation of a pump placed somewhere far below
a water-bearing fracture reveal that the Tuxedo Reserve project might
potentially dewater the aquifer during periods of drought (i.e.,
particularly at peak water demand rates). Neither the SEIS nor the 2007
Water Supply Investigation Report examine the relationship between
water-bearing fracture depths and 180-day water projections, especially
with respect to drought conditions. This is critical because the water
supply may not be able to sustain the planned housing density. This
assessment and how it potentially impacts the Mountain Lake
community, as well as the entire Tuxedo Reserve community, is a
3.6-14
DRAFT
significant and critical omission in terms of the reliability of the
community water supply, particularly during periods of drought.
Response 6-19:
The approved testing program was extremely conservative in that the
pumpage utilized (duration and rates) was well in excess of system
design demands and demonstrated the capability of the on-site
groundwater resources to more than adequately support the future water
supply usage.
Comment 6-20:
It is undesirable to construct numerous homes, buildings, and roads
directly above a major portion of the recharge area above a water
supply. This provides little wellhead protection that is typically
desirable to avoid adverse impacts from fuel oil or chemical spills, road
salt, herbicides, pesticides, hydrocarbons and other storm water
contaminants. Contaminant infiltration into the underlying aquifer
might necessitate costly cleanup, expensive treatment, or possibly
alternate water supply sources. Beyond this, contaminants drawn from a
recharge area directly above a water supply may pose a health and
safety risk. This risk potentially exists for water drawn into the
Mountain Lake well that may contain contaminants from homes and
roads in the small watershed. By extension beyond the Mountain Lake
well, the overlay of cones of depression above large-scale project
development (Figure 2) raises the issue of induced storm water
contaminant infiltration throughout much of the project site.
Consideration should be given to having the applicant expand the SEIS
to include an analysis of potential contaminant infiltration downward
from site development - aquifer recharge areas to project water supplies.
Response 6-20:
Based on the conclusions of the various studies completed to date and
advice from the Town Engineer, no significant adverse impacts to
groundwater resources are anticipated. All stormwater management
practices will meet or exceed NYSDEC and NYSDOH regulations for
water quality.
Comment 6-21:
Contaminants such as asphalt, fertilizers, oil and fuel could enter the
fracture from the proposed new neighborhoods and infiltrate both
groundwater and the Ramapo River. Our Town Board should insure that
development in this sensitive area precludes negative impacts. (Target
Tuxedo Group)
Response 6-21:
Please refer to Response 6-20. All stormwater management practices
will meet or exceed NYSDEC and NYSDOH regulations for water
quality.
Comment 6-22:
Contaminants such as asphalt, fertilizers, oil and fuel could enter the
fracture from the proposed new neighborhoods and infiltrate both
groundwater and the Ramapo River. Our Town Board should insure that
DRAFT
3.6-15
June 21, 2010
development in this sensitive area precludes negative impacts. (Target
Tuxedo Group)
Response 6-22:
Comment noted. Please refer to Responses 6-1, 6-2, and 6-4. No
significant adverse impacts to groundwater resources are anticipated.
All stormwater management practices will meet or exceed NYSDEC
and NYSDOH regulations for water quality.
Comment 6-23:
The concerns I have for not only NJ but also NY is the disturbance of
the glacial remains (exposed bedrock) and pollution in the shared
aquifer from non-point sources due to cracks in this bedrock when
blasted; stormwater runoff from 150 acres of newly paved surfaces; and
the destruction of the New York State Open Space Conservation Plan
priority site for forestry (and wildlife habitat), especially in terms of the
carbon sequestration. As you may know, in the past, the State of NJ and
the County of Passaic spent millions of dollars to preserve and protect
similar lands adjacent to and in close proximity to this site, all in an
effort to protect the drinking water for millions of residents. I ask that
you and any partners work together to preserve and protect this land as
well. The first step comes with rejecting this draft SEIS. (Caren)
Response 6-23:
Comment noted. The standards of NYSDEC and NYSDOH will be met
or exceeded.
STORMWATER MANANGEMENT
Comment 6-24:
Any proposed drainage should be designed so that it will not have an
adverse impact on the Metro-North Right-of-Way. (Metro-North)
Response 6-24:
Metro-North was copied on all submissions to the New York State
Department of Transportation regarding the southern entrance. As of
this time the design of the southern entrance and its associated drainage
facilities are under review by NYSDOT and Metro-North.
Comment 6-25:
This is a very challenging site to deal with, and one of the most
challenging aspects is the approach to stormwater management. This
water goes in the [Ramapo River] watershed that provides drinking
water for thousands and millions of people south of us and, more
locally, the development will impact our Tuxedo Lake watershed,
providing drinking water for about 650 families and all of the school. It
is very important that this issue be handled carefully and responsibly.
To preserve our water quality, there should be a protocol for water
testing of the waterways in the watershed starting before construction,
through construction and also as part of the homeowners set of
requirements. Once you degrade water quality its difficult to bring it
back. (Goodfellow)
The aims of the stormwater management plan are laudable, and the
developer is not anticipating pollution of our waters. What we need in
the special permit is the requirement of a stringent protocol for regular
testing of the water quality of the streams and lakes before construction,
June 21, 2010
3.6-16
DRAFT
throughout construction, and following construction to make certain that
the developer has actually achieved the goals they say their system will
achieve. I remember commenting on Hamilton Estates and being told
that the stormwater management as designed would protect the pond.
Well, those measures didn't work and now we have a pond that looks
awful and needs special attention. Those who were responsible for the
degradation are long gone. (Goodfellow)
Response 6-25:
As described in the Technical Memorandum Appendix D (see page 2),
Tuxedo Reserve proposes to implement a Water Testing Protocol that
has been approved by the Town Engineer. The Town Board will
incorporate the proposed Water Testing Protocol as necessary and
appropriate into the amended Special Permit. Furthermore, as stated in
the Storm Water Pollution Prevention Plan (SWPPP) a Home Owner’s
Association (HOA) will be formed and will be responsible for
maintaining all of the stormwater basins. The HOA’s formation will be
approved by the New York State Attorney General, and will be
reviewed by the Town Attorney and Town Board under the Special
Permit. In order for the HOA to be approved, the Applicant will be
required to prepare a budget for all anticipated HOA expenditures,
including but not limited to the maintenance of all stormwater
management basins. The HOA will be required to assess all property
owners on a monthly basis to address all expenses. In addition, a backup special district will be created in case the HOA fails to maintain the
stormwater management system. Under the back-up district, the Town
would collect a special assessment tax from property owners within the
special district to maintain the stormwater management system.
Comment 6-26:
There is such concern about Tuxedo Lake that specific law exists at the
State level Department of Health expressly stating in the statute
Section133.13: "all persons living on or visiting the watershed shall
refrain from any act, though not heretofore specified, which may result
in contamination of any portion of the water supply." (Goodfellow)
Response 6-26:
The proposed stormwater management plan will meet all applicable
laws and regulations. The stormwater management plan has been
designed to meet or exceed NYSDEC standards. It has been reviewed
by both the Town of Tuxedo and Village of Tuxedo Park engineers. The
developer has agreed that during the preliminary subdivision design and
review it will divert all roadway runoff away from the lake. NYSDOH
requirements will also be met or exceeded for the water system.
Comment 6-27:
On October 1, a couple of us from Torne Valley Preservation
Association met with Scott Cupper at Region 3 DEC, who said
categorically there is no more direct discharge. Detention basin is an
outdated term. Under MS4 regulations for urban development, retention
basins are required, though they only remove 80 percent of systemic
solids and 60 percent of phosphorus, not matching water quality on
undeveloped land. (Wooters)
DRAFT
3.6-17
June 21, 2010
Response 6-27:
As discussed in the Technical Memorandum and DSEIS, there are two
stormwater discharge options for Tuxedo Reserve. One option is to
utilize direct discharge, which is currently allowed under Chapter 4 of
the NYSDEC Stormwater Design Manual. Another option is to use a
detention basin to mitigate hydrologic impacts of the increased runoff.
A detention basin is still a term used by NYSDEC in Chapter 4 of the
New York State Stormwater Management Design Manual. If utilized at
Tuxedo Reserve, the detention basin will not be relied upon for water
quality treatment; separate water quality measures will be provided
upstream of the detention basin.
At a meeting held with DEC they stated that they agree the stream is a
fourth order stream, and therefore a waiver for direct for direct
discharge is an option; however, they will not approve the direct
discharge if any of the impacted down stream communities object to it.
It is our understanding that Sloatsburg wants a detention basin. Designs
for the basin will be submitted to the Town for review once the
applicant has received the comments from the Town of Sloatsburg and
Rockland County. It is noted that a new NYSDEC Stormwater Design
Manual is expected to be approved in the next few months, and that
direct discharge may no longer be permitted. As discussed in Chapter 1,
“Project Description,” of this FSEIS, should the regulations change with
regard to direct discharge the project will utilize the detention/recharge
basin in Sloatsburg. Under either instance, all of the stormwater
requirements set forth by NYSDEC will be met or exceeded. It should
also be noted that the proposed project is not located within a
designated MS4 area, and therefore those requirements are not
applicable.
Comment 6-28:
The stormwater management plan allows for either direct discharge
from Tuxedo into the Ramapo River, or a retention basin on the
Sloatsburg parcel. As direct discharge of stormwater is no longer
allowed by federal law, a retention basin in Sloatsburg would be
required. How would it be possible to build a retention basin large
enough to serve all the run off from over 150 acres of impermeable
surface area since of the Sloatsburg land is Army Corps of Engineers
wetlands or steep slopes? (Wooters)
Response 6-28:
Please refer to Response 6-27; current federal and NYSDEC regulations
permit the proposed discharge to the fourth order stream. However, as
noted in Response 6-27, the NYSDEC regulations are anticipated to
change in the future. The calculations which demonstrate how the basin
will mitigate peak flows have been submitted to the Village of
Sloatsburg and the Rockland County Drainage Agency for review and
will be submitted to Tuxedo for review once the Village of Sloatsburg,
and the Rockland County Drainage Agency approve the design.
Comment 6-29:
The Tuxedo Reserve homeowners association would be responsible for
maintaining this retention basin, which means regularly removing the
June 21, 2010
3.6-18
DRAFT
retained sludge and disposing of it. I hope that the fiscal analysis
factored in this cost when estimating the sale price of homes. (Wooters)
Response 6-29:
Please refer to Response 6-23 and similar comments and responses in
Appendix C. It should be noted that the operations of the homeowners
association are not costs incurred by the Town and therefore are not
germane to the fiscal analysis.
Comment 6-30:
To make the claim (as the SEIS does) that the surface water runoff
generated by this development would be sufficiently mitigated and
controlled by detention areas, dry swales, permeable pavement, rain
gardens and other stormwater management practices (SMPs) is simply
to dismiss the remarkable natural hydrology of the Highlands, based on
the region's unique and complex topography and geology. It is precisely
this highly valued natural hydrology that is the focus of all the ongoing
efforts by New York, New Jersey, Pennsylvania and Connecticut to
protect the Highlands forest expanse and potable water supplies. (Kohn)
Response 6-30:
Stormwater management practices (SMPs) will be designed to work
with the natural conditions found on a site, such as topography,
vegetation, and wetlands. The SMPs of Tuxedo Reserve have been
designed utilizing the natural conditions found on the site.
Comment 6-31:
Where in DSEIS Chapter 6, Hydrology and Stormwater Management,
pages 6-1 the 6-12, does it mention about the authority of the Sloatsburg
Village Engineer has relating to stormwater impacts and controls, as to
the proposed TR Stormwater/Drainage System discharges into the
waters of the Ramapo River or the Rockland County Streams within
Sloatsburg or the Town of Ramapo? The 2007 Sloatsburg Zoning
Code—Chapter 54 Article IX, Environmental Controls, states: The
Village of Sloatsburg hereby designates the Village Engineer as the
person who shall accept and review all [stormwater pollution
prevention plans] and forward such plans to the Planning Board. etc.
Has the TR or the Tuxedo Town/Planning Board or Town consultants
ever contacted the Sloatsburg Village Engineer over the TR Stormwater
plans that are now in the TR DSEIS? (Kwasnicki 10/26/09)
Response 6-31:
Please refer to Chapter 1, “Project Description,” of this FSEIS for a
discussion of the proposed stormwater detention/retention basin in
Sloatsburg. The plans and engineering reports have been sent to the
Village of Sloatsburg for review. The proposed stormwater
detention/retention basin will be submitted to the Tuxedo town Engineer
and Town Planning Board once Sloatsburg and Rockland approve the
design.
Comment 6-32:
We have concerns about how the Ramapo River will be affected; storm
water run off, additional impervious surfaces. We're concerned with the
actual flow levels in the Ramapo River, how they run very low, and the
more development you guys have up here, the less flow we have in the
river down there. Also the storm water treatment plant, which is not in
DRAFT
3.6-19
June 21, 2010
your purview, is affecting that. Mahwah for instance takes its water, has
its ground wells right along the Ramapo River, and actually supplies
water to other towns down there. We just want to point out the effects
that this will have. We call this in New Jersey, it's called uncontrolled
sprawl, and we actually argue over every single acre of available space
in New Jersey. And you people are going to be—you already are—
fighting the same thing. (Shaw)
Response 6-32:
The water quality measures proposed will be designed to treat and
infiltrate the low-intensity storms into the ground. The higher intensity
storms will be attenuated by the proposed Detention Basin in
Sloatsburg. See the section on hydrogeology.
Comment 6-33:
Also are we confident the sources and quantity of storm water run off
have been fully identified and calculated, by a retention system, swales,
detention ponds et cetera. They are a living biological system. Success
depends upon creating and maintaining a hydrological system in
balance with the physical properties of the site. Experts repeatedly warn
that analyzing storm water run off cannot be effectively done before a
disturbance. So who will be responsible for continuing the necessary
analysis after 25 rock cuts, blasting and disturbance of the soil and
vegetation, of acres and acres of unfragmented forest, and the addition
of over a hundred acres of impervious surface at the site. And who will
pay for this additional analysis? (Steele)
Response 6-33:
The proposed stormwater management system will be designed to meet
or exceed NYSDEC standards. As discussed in Response 6-25, the
HOA will be responsible for the long-term maintenance of the system
and a back-up drainage district will be created to ensure that the
facilities will be maintained. The HOA will also be responsible for
periodically testing the runoff from basins in the Tuxedo Lake and
Mountain Lake drainage areas. As discussed in the Technical
Memorandum, Water Testing Protocol has been prepared by the
Applicant, and has been reviewed by the Town Engineer. Furthermore,
under subdivision review the Planning Board has the opportunity to call
for additional health and safety requirements, as was the case with their
review of the North Ridge Subdivision. It is anticipated that future
subdivision reviews will result in similar protocol being implemented.
Comment 6-34:
I want to talk about water, energy, and an alternative proposal for
Tuxedo Reserve. In the SEIS amendment, it admits that there is going to
be stormwater run off into Tuxedo Lake and into the Ramapo River. It
also admits that there are going to be stormwater run off into the
adjoining properties, with underground water flow into Tuxedo Lake
and River. The only thing that they are proposing to stop this water run
off is a pocket pond and a swale. That's the only thing preventing
contamination going into our drinking water, and the Ramapo River,
which serves close to four million people, that filters down into the
Ramapo River watershed, the Wanaque watershed, and the Hackensack
watershed. (Wilson)
June 21, 2010
3.6-20
DRAFT
Response 6-34:
A Preliminary Stormwater Management Plan has been submitted to the
Town as part of this application and has been reviewed by the Town
Engineer for stormwater pollution protection. All of these stormwater
practices will be designed to meet or exceed all Town and NYSDEC
requirements. These requirements will continue to be met during the site
plan and subdivision review process. Currently no detailed final designs
have been submitted for stormwater and/or Water Quality. They will be
submitted in Site Plan and Subdivision review. It has been agreed that
as a part of the final design, there will be no discharges from pavements
to Tuxedo Lake.
Comment 6-35:
Stormwater. In 2008, NYSDEC issued a new SPDES general permit for
stormwater discharges from construction activity (GP-0-08-00l). This
new general permit was issued well after the original DEIS/FEIS. Since
the project has never been built, this new permit and its stormwater
control requirements may apply and must be considered with updated
information for the entire project in the current SDEIS. In addition, the
new general permit contained a major change that affects construction
activities that are tributary to waters of the state classified as AA and
AA-s and will disturb land areas where the soil slope phase is identified
as E or F (generally those exceeding 25% slopes) on the USDA Soil
Survey for Orange County. Such projects are no longer eligible to come
under the stormwater general permit and, therefore, must obtain an
individual permit from NYSDEC. NYSDEC made this change because
of the increased potential for these construction activities to be a
significant contributor of silt and sediment to drinking water supplies.
Accordingly, the NYSDEC believes it appropriate that a higher level of
oversight is warranted for such projects. Given the project's proximity to
Tuxedo Lake (classified as AA(T)), it would appear relevant that the
concerns expressed by the NYSDEC and the requirements of an
individual SPDES permit must be considered in the SDEIS.
(Sterthous/Tuxedo Land Trust)
As noted in the report, Tuxedo Lake is designated as a Class AA water
body by NYSDEC. As such, NYSDEC requires coverage under an
individual SPDES permit for storm water discharges on Soil Slope
Phases identified as an E and F. Some discussion should be included
with regard to this determination and the NYSDEC's disposition on this
requirement. (Oliveri/Tuxedo Land Trust)
Response 6-35:
According to the USDA Soil Survey for Orange County, there are no
slopes identified as E or F (those exceeding 25 percent in slope) within
the proposed disturbed areas of Tuxedo Lake Drainage Basin. All of the
stormwater requirements set forth by NYSDEC under the new general
permit (January 2010) will be met or exceeded during the design of the
project.
Comment 6-36:
The SEIS contains only new information with regard to the Tuxedo
Lake and Mountain Lake watersheds. No additional information with
regard to Stormwater Management for the remainder of the
DRAFT
3.6-21
June 21, 2010
development has been submitted. Therefore, in an effort to understand
this new information in the context of the overall Stormwater
Management Plan, the previously submitted stormwater reports have
been reviewed. These reports were only found at the Town offices and
were not posted online. However, it was soon realized that the majority
of the Southern Tract was analyzed at a "conceptual" level only. Site
specific analysis reflecting changes to the proposed phasing plan and
impervious area coverage have not been reflected in an overall sitespecific stormwater report. (Oliveri/Tuxedo Land Trust)
Response 6-36:
As previously discussed, a Preliminary Stormwater Management Plan
has been submitted to the Town as part of this application and has been
reviewed by the Town Engineer for stormwater pollution protection. All
of these stormwater practices will meet or exceed all Town and
NYSDEC requirements. These requirements will continue to be met as
the detailed engineering designs and plans are developed during the site
plan and subdivision review process for each sub-phase of the Project.
The Applicant has submitted a fully engineered plan for Phase 1A
(North Ridge). The remainder of the site will be fully engineered when
site plan and/or subdivision approval is sought for a particular project
sub-phase.
Comment 6-37:
The conceptual analysis (only found at the Town offices, not online or
at the Public Library) does not include detailed plans or hydrologic
routing calculations to verify detention requirements. Instead storage
volume requirements based on the North Ridge section calculations
were used as a "design guideline" to provide conceptual storage
volumes for much of the Southern Tract. This approach can only be
taken as noted to be "conceptual"; detailed hydrologic routing
calculations and design plans must be submitted to verify actual
feasibility. A total of 981 acres out of the total 1236 acres have been
analyzed on a "conceptual" level only. (Oliveri/Tuxedo Land Trust)
Response 6-37:
The documents identified above were not required to be posted on the
internet, and were always available for public review at the Town’s
offices. Only Phase 1A (North Ridge) has been fully engineered to date.
Per the requirements of the Special Permit, conceptual plans have been
provided. Fully engineered and detailed design plans will be provided
for review and approval by the Planning Board during Site Plan and
Subdivision review.
Comment 6-38:
A detailed Storm water Management Report has been prepared for the
"North Ridge" section of the development as part of Phase 1A; however
the current plan proposes only a small part of the North Ridge section to
be developed initially. The "Commons" are now proposed as Phase lA;
no site specific design has been completed for this section.
(Oliveri/Tuxedo Land Trust)
Response 6-38:
Phase 1A is for North Ridge and for the water system, including wells,
and pipes, etc. that are needed for North Ridge. The buildings, roads,
etc. that are part of the Commons is Phase 1B only. The construction
June 21, 2010
3.6-22
DRAFT
phasing plan accurately describes the current plan for development, any
areas that have not been engineered during Phase 1A will be submitted
in a subsequent subdivision and/or site plan application.
Comment 6-39:
Pollutant loading calculations must be prepared to demonstrate
improvements to water quality with the proposed Stormwater
Management Practices (SMPs). (Oliveri/Tuxedo Land Trust)
Response 6-39:
NYSDEC does not require pollutant loading calculations. All of the
water quality and detention requirements set forth by NYSDEC will be
met or exceeded during the site design process. In addition, the
Applicant and the Town have identified two locations where pollutant
loading analyses will be on-going before, during and after construction.
The locations are at Tuxedo Lake and Mountain Lake.
Comment 6-40:
The "Conceptual Stormwater Management Report" prepared for the
project contains a preliminary analysis of Subbasin 4 which is tributary
to the Ramapo River and is the largest of the project watersheds with
over half of the overall area included. This analysis looks at the use of
"decentralized stormwater management water quality techniques" in
conjunction with use of the NYSDEC methodology for fourth order
streams (ie. direct release of stream channel protection and overbank
flood control waters from major watersheds earlier in the storm period).
The analysis concluded that this approach would help to minimize
flooding impacts to the Ramapo River, reducing 100-year peak flow,
but by only 2.8 cfs. However, this approach increases peak flows from
Subbasin 4 by 34.5 cfs. The analysis further concluded that with the
addition of a "hypothetical detention facility" (i.e. the Quail Road
detention basin and bypass) the peak rate of discharge from Subbasin 4
can remain unchanged, but the peak flow in the Ramapo River would
increase by 7.3 cfs. Thus, the analysis concludes that the preferred
scenario is to provide no detention (with the exception of limited water
quality volumes) and release the water early to the Ramapo River; as
such the project would increase peak flows from the Subbasin by 34.5
cfs while decreasing peak flow in the Ramapo by only 2.8 cfs. The
report states that "Although Basin 4 tributary can potentially create
some periodic localized flooding...it is the overriding influence of the
Ramapo River that controls flood elevations .... and that potential
impacts from increased flows ... will be mitigated where necessary".
This analysis is misleading in that the sizing of the hypothetical
detention basin was limited to a single basin at the end of the discharge
path sized only to match the predevelopment flow rates. If the entire
Subbasin were modeled and analyzed in more detail with multiple
basins as was originally proposed, it is likely that significantly more
storage can be realized, and both the peak flow rates from Subbasin 4
and the Ramapo River could be reduced, creating less impact from the
proposed project. (Oliveri/Tuxedo Land Trust)
Response 6-40:
The hypothetical detention facility analyzed in the 2/5/08 Report did not
include the Quail Road diversion structure and bypass system. Instead,
DRAFT
3.6-23
June 21, 2010
it included a single basin located at the downstream end of the study
area.
The proposed diversion & bypass system will divert a fraction of the
runoff to the proposed detention/recharge basin. Due to the large storage
volume and infiltration capacity provided by the basin, the peak rate of
the bypassed flow will be significantly reduced. The remainder of the
flow will not be delayed along its path to the Ramapo River. This
approach will provide the timing benefits of direct discharge for this
portion of the flow. In other words, the majority of the flow from the
site will enter the river long before the river peaks.
This system will prevent increases in peak flow from the site and will
mitigate potential impacts to peaks on the Ramapo River.
Comment 6-41:
The technical memorandum from AKRF notes that if the decentralized
and direct discharge approach is not approved, the Quail Road detention
facility and bypass can be utilized. However as per the Conceptual
Stormwater Management Report discussed in comment #5, if the peak
100-year flow rates in the Ramapo River would increase under this
scenario, can this be mitigated? At this time, only a brief description of
the Quail Road alternative is discussed. A more detailed design will
need to be submitted for review. (Oliveri/Tuxedo Land Trust)
Response 6-41:
It should be noted that the decentralized approach for water quality is
proposed only for the Quail Road detention facility. Detailed plans for
the Quail Road alternative will be developed at a future date.
Comment 6-42:
Approval of a project of this scope without a more site-specific
stormwater analysis is inappropriate. A more detailed overall
comprehensive stormwater management plan should be submitted for
review. (Oliveri/Tuxedo Land Trust)
Response 6-42:
As previously discussed a Preliminary Stormwater Management Plan
has been submitted to the Town as part of this application and has been
reviewed by the Town Engineer for stormwater pollution protection. All
of these stormwater practices will meet or exceed all Town and
NYSDEC requirements. These requirements will continue to be met as
the detailed engineering designs and plans are developed during the site
plan and subdivision review process. The Applicant has submitted a
fully engineered plan for Phase 1A (North Ridge). The remainder of the
site is still in the concept phase and each subphase will be fully
engineered when site plan and/or subdivision approval is sought in the
future.
Comment 6-43:
Time of concentration paths should be indicated on the postdevelopment watershed maps. (Oliveri/Tuxedo Land Trust)
Response 6-43:
The post-development Time of Concentration (Tc) paths are shown on
Figure 45.15 of the Conceptual Stormwater Management Report, which
was submitted to NYSDEC and Town of Tuxedo in February 2008.
June 21, 2010
3.6-24
DRAFT
Comment 6-44:
Incomplete hydrologic data makes it impossible to verify calculations.
(Oliveri/Tuxedo Land Trust)
Response 6-44:
All hydrologic data has been submitted to the Town of Tuxedo, the
Village of Sloatsburg, and the Rockland County Drainage Agency. The
complete body of work is available for review at Town Hall.
Comment 6-45:
It should be noted that the proposal is to provide only water quality
treatment practices for the increased impervious areas, thus utilizing
Mountain Lake for stormwater detention of all storms beyond the 90%
storm. It is this writer's understanding that use of NYSDEC wetlands for
stormwater detention is prohibited. Stormwater detention attenuating up
to the 100 year storm must be provided. (Oliveri/Tuxedo Land Trust)
Response 6-45:
The Applicant has agreed to redirecting the roadway runoff away from
Mountain Lake where possible during the preliminary design. Any areas
where the roadway runoff can not be redirected away from the lake the
Developer will attenuate the flows through the use of a detention basin.
Comment 6-46:
The impact of this project can not be fully and adequately assessed
given the current information that is available, particularly with respect
to the potential for degradation to the Ramapo River in its capacity for
flood control and its status as a water supply for residents of Rockland
County and New Jersey. (Oliveri/Tuxedo Land Trust)
Response 6-46:
All of the stormwater requirements set forth by NYSDEC will be met or
exceeded. If NYSDEC requires additional detention it will be provided.
In addition, the Applicant has been in contact with the Rockland County
drainage agency, and the Village of Sloatsburg, whose consent is
required as Involved Agencies. Please refer to Chapter 1, “Project
Description,” of this FSEIS for a discussion of the proposed stormwater
detention/recharge basin in Sloatsburg. Please refer to Response 6-40
for a discussion of impacts to the Ramapo River.
Comment 6-47:
The Conceptual Stormwater Management Plan Fig. 5-1 (p. 17) does not
show either direct discharge or a retention basin in Sloatsburg and so it
is incomplete. Stormwater run off from such a vast project on steep
terrain will be critical to manage. (Wooters)
Response 6-47:
Figure 5-1 of the Conceptual Stormwater Management Plan shows
various points of discharge for the entire site. One of these is the direct
discharge point, although it is not labeled as such. The detention basin
in Sloatsburg is not shown because that alternative was developed at a
later date and has not been approved as of this date.
Comment 6-48:
The calculations in the SEIS state that there are 150 acres of impervious
surface. This is an increase of 12 acres from what was previously
approved in the original Special Permit. The stormwater management
system will need to be modified to accommodate this increased
impervious surface amount. It also needs to include the retaining walls
DRAFT
3.6-25
June 21, 2010
and exposed rock surfaces not previously calculated. In addition the
impervious surface in the Tuxedo Lake watershed is not properly
addressed; this should be a vital concern as it affects the Tuxedo Lake
reservoir. (Lindsay)
Response 6-48:
The Conceptual Stormwater Management Report addresses water
quality treatment of all of the proposed impervious areas according to
NYSDEC requirements. There is a report titled, “Stormwater
Management Report-Tuxedo Lake Watershed” that describes
stormwater treatment in the Tuxedo Lake watershed. As discussed on
page 6-10 of the DSEIS, approximately 30 acres of the Tuxedo Reserve
Project Site are located within the approximately 2,500 acre Tuxedo
Lake watershed. The Proposed Development would introduce
approximately 12.5 acres of additional disturbance compared to what
was analyzed in the original DEIS. Of that area, 2.9 acres (or a 0.1%
increase) would consist of impervious surfaces. The 12.5 acres of
disturbance includes the 2.9 acres of impervious surface, as well as 9.6
acres of pervious surfaces. The 30-acre portion of the Project Site that
falls within the Tuxedo Lake watershed represents a small fraction
(0.5%) of the total land area within the Tuxedo Lake watershed.
Therefore, the proposed 12.5 acres of disturbance to the Tuxedo Lake
watershed would be minimal in comparison to the overall watershed
area. Potential impacts from this proposed disturbance area would be
mitigated during the construction phase by erosion and sediment control
measures. The Stormwater Management Plan for the Mountain Lake
watershed aims to: maintain existing drainage areas and runoff patterns;
prevent an increase in peak discharges to offsite areas; prevent adverse
impacts to water quality in offsite areas; and preserve a significant
buffer area between the proposed development and the Village of
Tuxedo Park. All efforts will be made during the final design to redirect
all direct roadway runoff away from the lake.
Comment 6-49:
"Figure I, Tuxedo Lake Watershed Location Map", shows generally the
limits of the Tuxedo Lake watershed at a small scale (1" = 1250') but
this information is not clearly shown on a topographic map how it was
determined. Our review indicates the watershed area to be larger than
shown. (Messer)
Response 6-49:
Please refer to DSEIS Figure 6-1b, “Project Site Watershed Detail.” The
study area of Tuxedo Lake was based solely on the drainage area of
Tuxedo Lake that falls within the Tuxedo Reserve property. The area
was calculated using two-foot contours. Furthermore, this area is
consistent with the area depicted in the Tuxedo Park Lakes Management
Plan, “Subwatersheds USGS Topography,” prepared by Princeton
Hydro.
Comment 6-50:
Include a sheet devoted to details and cross-section views for the level
spreaders, check dams, dry swale pretreatment sumps, pocket pond 5a,
bioretention area 5c, bioretention area 5d, and rip-rapped channels.
(Messer)
June 21, 2010
3.6-26
DRAFT
Response 6-50:
At this time the plan for the entire site is in the concept stage and no site
specific details exist. Detailed site plans will be provided during the
Town’s site plan review process.
Comment 6-51:
Stormwater Management· Report Tuxedo Lake Watershed - Appendix C
Hydraflow Printouts - Hyd. No. 11 row appears to have incorrect
figures for every column accept for the Volume (cuft) columns on pages
I, 2, and 3. Please clarify. (Messer)
Response 6-51:
The results have been reviewed, and no errors were found. The total
peak discharge shown in Line 11 is not the arithmetic sum of the peak
flows from the sub basins, because the timing of the peaks varies.
Comment 6-52:
Stormwater Management Report Tuxedo Lake Watershed - Introduction
– Under the heading "Revisions Made for this 3/9/09 Report" response
comment No. I "The outlet pipes from Bioretention Areas 5c and 5d
were re-routed to the south, so that discharges from these basins will
enter the Tuxedo Lake watershed." Based on the provided mapping, it
appears that the discharges are outside of the declared watershed area.
(Messer)
Response 6-52:
There was a typographic error in the report. The statement should be
corrected to read, “The outlet pipes from Bioretention Areas 5c and 5d
were re-routed to the south, so that discharges from these basins will not
enter the Tuxedo Lake watershed.” This error has been corrected.
Comment 6-53:
Stormwater Management Report Tuxedo Lake Watershed - Appendix B
Water Quality Calculations page 1 - Tuxedo Reserve Tuxedo Lake
Watershed Pocket Pond Sa outlet design elevations are inconsistent with
the elevations and inverts shown on Figure 9 Tuxedo Lake Watershed
Stormwater Management Practice Plan. (Messer)
Response 6-53:
The 740 contour was mislabeled. The 740 contour is at the bottom of
the basin. This has been corrected .
Comment 6-54:
In general it appears that consideration has been given to the Tuxedo
Lake Watershed in an effort to maintain the quantity and quality of the
water entering the watershed based on pre to post construction although
some inconsistencies remain. (Messer)
Response 6-54:
Comment noted.
Comment 6-55:
First and foremost, the polluted stormwater runoff will negatively
impact the Monksville and Wanaque reservoirs, which provide drinking
water to 2 million New Jersey residents. That runoff will flow
southward to pollute the lakes and streams of Ringwood and West
Milford, NJ, both of which lie totally within the “Preservation Area” as
designated in the Highlands Water Protection and Planning Act due to
each community’s environmental sensitivity and its important role in
protecting drinking water. (O’Hearn)
DRAFT
3.6-27
June 21, 2010
Response 6-55:
All of the water quality and detention requirements set forth by
NYSDEC will be met or exceeded. Stormwater runoff from the Project
is not anticipated to result in any significant adverse impacts to regional
reservoirs or watersheds.
Comment 6-56:
Further, the stormwater runoff from that development will negatively
impact the water quality in Greenwood Lake with silt, sediment and
lawn fertilizers which will make the lake more shallow and increase the
quantity of water weeds and algae. Obviously that will decrease the
recreational value of the lake for swimming, boating, and fishing. These
recreational uses are currently enjoyed not only by New Jersey
residents, but also by those of Tuxedo, Warwick, Florida and
Greenwood Lake, New York. Much of the environmental degradation to
the area to be caused by the proposed development can never be
remediated. The future harm to the area’s recreational uses and the
drinking water supply will impose substantial economic costs to New
Jersey residents. (O’Hearn)
Response 6-56:
Greenwood Lake is not within the watershed of the Tuxedo Reserve
project. Therefore, no runoff from the Project Site will affect
Greenwood Lake.
Comment 6-57:
Increased surface water runoff will further degrade this watershed,
wetlands and waterways, and create problems of area flooding. (Kohn).
Why should we current residents be called upon again to accept the risk
that TR's newly proposed modifications won't discharge bituminouscontaminated runoff into the Ramapo and into Tuxedo Reservoir when
the entire project is now within these watersheds. (Regna)
Response 6-57:
The stormwater management plan has been designed to meet or exceed
NYSDEC standards, and will protect the watersheds. The Proposed
Modifications do not significantly alter the amount of development
within the Ramapo River or Tuxedo Lake watersheds.
Comment 6-58:
Are we confident that the sources and quantity of storm water runoff
have been fully identified and calculated? Bioretention systems (swales,
detention ponds, etc) are not simple to design or site, “…they are living
biological systems…Success…depends on creating (and maintaining) a
hydrologic system in balance with the physical properties of the site."
(See attached article.) Experts repeatedly warn that analyzing storm
water runoff cannot be effectively done before a disturbance.
Bioretention systems are challenging because they are highly dependent
on thorough study of subsoil characteristics, site stabilization, and
unsaturated flow rates. Who will be responsible for the continuing
necessary analysis after twenty-five rock cuts, blasting and disturbance
of the soil and vegetation of acres and acres of currently unfragmented
forest and, the addition of over a hundred acres of impervious surfaces
to the Site? Who will pay for the additional analysis? (Steele 11/20/09)
June 21, 2010
3.6-28
DRAFT
Response 6-58:
Proposed water quality testing protocols are included in the Stormwater
Management Reports for Mountain Lake and Tuxedo Lake. The Tuxedo
Reserve Homeowners Association will be responsible for the costs of
the testing analyses. The HOA will be responsible for maintenance of
centralized dry swales, bioretention areas, ponds, etc. Decentralized
practices that are constructed on individual lots will be maintained by
the HOA through the provision of easements. Please refer to Response
6-25.
Comment 6-59:
The Village respectfully requests that new language be added to the
amended permit that will establish necessary conditions to protect
Tuxedo Lake from the Tuxedo Reserve project. Our concerns involve
protecting the watershed and the aquifer; maintaining the status quo, but
pre and post, and on a continuous basis. We seek to safeguard the
management of stormwater flows and to avoid outcomes that could give
the DEC pause to increase Tuxedo Lake dam classifications or about
stormwater run off entering the lake from the Reserve. We must protect
the lake and aquifer and water quality from blasting and new sources of
pollution before they impact the community’s drinking water supply.
The permit should require the engineering for stormwater management
to be approved in writing by the Town engineer, with the concurrence
of the Village engineer. This engineering must be modeled and tested in
the field by the Reserve to ensure no adverse effects even under severe
rain accounts of more than 150 percent of a hundred year storm (which
is the dam safety standard applied by the DEC for the Tuxedo lake dam.
(Stebbins).
Response 6-59:
The Project will meet or exceed all applicable state and local
regulations. The Applicant has run a preliminary hydrologic model for a
rainfall event of 150 percent of the 100-year storm, and found that the
stormwater practices will be effective for that level of rainfall, and that
peak flows will be reduced. Therefore, stormwater runoff from the
Project Site is not anticipated to impact the Tuxedo Lake dam. Final
hydrologic models will be run after the final designs are performed to
assure that all the applicable standards are met. The Project will be
designed pursuant to NYSDEC’s Best Management Practices.
➭
DRAFT
3.6-29
June 21, 2010
Chapter 3.7:
Comments and Responses – Construction Impacts
A. CHAPTER 7: CONSTRUCTION IMPACTS
EARTHWORK
Comment 7-1:
Blasting mountain sides and building 30 to 50 foot retaining walls will
result in huge changes to the land cause flooding and other things. If the
developer had bought unbuildable land, then he can’t build on it. That’s
it. (David)
Response 7-1:
The use of blasting and retaining walls were issues that were fully
analyzed in the 2003 FEIS and Findings Statement and are outside the
scope of the issues analyzed in the DSEIS. To the extent that the
Proposed Modifications on the Southern Tract would utilize new
retaining walls (e.g., in the Mountain Lake area) or would increase the
anticipated height of the proposed retaining walls, those issues are
addressed herein.
The exact heights of retaining walls have not yet been determined. As
stated in the DSEIS, the Proposed Modifications may require the
construction of retaining walls—not to exceed a height of 45 feet high
in some limited locations. The 2003 FEIS was based upon an assumed
maximum height of 20 feet, but to achieve that maximum height would
have required extensive grading in certain locations. Under the
Proposed Modifications additional and taller retaining walls would be
utilized where they would reduce grading and limit disturbance to steep
slopes and sensitive environmental areas, such as wetlands and vernal
pools.
The maximum height of the proposed retaining walls is derived from
the current conceptual roadway alignments, lot massing, and
infrastructure locations. As described above, the use of such retaining
walls would reduce the amount of disturbance required during site
preparation and prevent significant adverse impacts to nearby wetlands.
Taller retaining walls would be designed and terraced, where
appropriate, to prevent any significant adverse visual impacts. The
retaining walls would not have the potential to generate any significant
adverse flooding impacts as the Project with the Proposed Modifications
includes a stormwater management and drainage system that will
comply with all applicable State and federal requirements.
Comment 7-2:
DRAFT
There is also a curious note on the earthwork calculation. It says,
"Earthwork does not include rock use in retaining wall stormwater
3.7-1
June 21, 2010
management facilities outside of the North Ridge Subdivision access to
and lots for well stations in sanitary pump stations coming, and the
water tank lot." Again, why not? And if the rock used in the retaining
walls is not coming from on-site, then where is it coming from? That's
an awful lot of rock. Has this applicant provided any estimate for the
volume of rock that will be needed for this massive system of retaining
walls? How many trucks will be rolling down Route 17 to bring this
rock in? (Graetzer)
Response 7-2:
Please refer to Response 7-1. The DSEIS included an order of
magnitude cut and fill analysis for the Project with the Proposed
Modifications, which demonstrated the balance of cuts and fills for the
Project. As such, the construction of retaining walls would not generate
any massive import or export for earthwork.
The DSEIS did not include detailed calculation of cuts and fills since
the roadway alignments are conceptual and are expected to be detailed
during the subdivision and site plan review processes. The order of
magnitude estimate is provided to assess the degree to which cuts and
fills can be accommodated with on-site resources. The order of
magnitude estimate demonstrates that the Project with the Proposed
Modifications would not require export or import for earthwork.
Estimated earthwork volumes would be refined during the development
of subdivision and site plan applications based on detailed road
alignments, lot layout, grading and when more detailed extent of
disturbance can be calculated. Cut and fill adjustments would be made
to effectively execute the Proposed Development and as needed, to
refine the earthwork volumes and balance the site. Volumes can be
adjusted by relatively small changes. For example, adjusting 10 miles of
the 50-foot road R.O.W. by 3 inches would generate a volume of
approximately 24,400 cubic yards. Refinements during subdivision
development would be tailored to continue to utilize on-site resources
and avoid significant export or import for earthwork. Wherever rock is
required for retaining walls, the Applicant expects that sufficient
material will be available from on-site cutting operations.
Comment 7-3:
There is a cut and fill analysis in the SEIS, however it lacks detail. Rock
blasting is planned in many areas however the extent and the depth of
cuts are not shown. Rock blasting will be extremely destructive to the
environmentally sensitive land in Tuxedo Reserve and the waste from
the blasting process will cause extensive soil erosion. I do not believe
that the SEIS properly address[es] this significant adverse
environmental impact. With the additional development of 30 acres in
the Tuxedo Lake watershed and the development around Mountain
Lake there will be extensive cuts/fills and rock blasting and the potential
for significant adverse environmental impact could be catastrophic.
These areas of development should be eliminated from the project.
(Lindsay)
Response 7-3:
Please refer to Responses 7-1 and 7-2. The use of blasting on the site
was fully analyzed in the 2003 FEIS and a comprehensive blasting
June 21, 2010
3.7-2
DRAFT
Chapter 3.7: Comments and Responses -- Construction
protocol has been developed and submitted to the Town Engineer for
review. The potential significant adverse impacts of blasting are
primarily due to increased vibration and the possibility of “flyrock” and
fragments generated by the explosion. When blasting is required for any
phase of construction, it would be conducted in compliance with the
blasting protocol and all applicable local, State, and federal regulations,
as well as the blasting protocol.
With regard to cuts and fills, all site construction, including within the
Mountain Lake area, would be undertaken in accordance with an
erosion and sediment control plan to be approved by NYSDEC and
which will delineate the required protections to preclude generation of
any significant adverse erosion and sediment control impacts from land
clearing and grading activities. The preliminary designs indicate that the
Project with the Proposed Modifications will meet or exceed all
requirements of the NYSDEC stormwater regulations that limit and
control soil erosion. When the designs are finalized, they will comply
with all the required local county and state requirements.
Comment 7-4:
(Figure 7-1b, Construction Phasing Legend) According to this figure,
the earthwork calculations do not include the rock used in the retaining
walls, stormwater management facilities outside of the North Ridge
subdivision, access to and lots for well stations and sanitary pump
stations, and the water tank lot. The question is why not? These are all
disturbances which are resulting from the proposed project, and it is
wrong to exclude them. (Gross 12/31/09)
Response 7-4:
Please refer to Responses 7-1 and 7-2. The earthwork calculations are
based on the conceptual designs prepared. The final designs and
earthwork calculations will be performed during site plan review and
will consider all the detailed aspects of the project.
Comment 7-5:
(Figure 7-1 b, Construction Phasing Legend) Is this also indicating that
the rock used in the retaining walls is not coming from onsite
earthwork? The proposed retaining walls are extensive, measuring as
high as 45 feet in places, and will require a tremendous volume of rock.
Where is this rock coming from? Will it be brought in from outside
sources? If so, how many truck trips will be required? (Gross 12/31/09)
Response 7-5:
LIMITS OF DISTURBANCE
Comment 7-6:
It also appears that the area of disturbance did not include retaining
walls, storm water management facilities, access to, and lots for well
stations and sanitary pump stations; the water tank lot and the school
site. Can anyone explain to me why not? Are these items going to be
magically accomplished without any disturbance? (Graetzer)
Response 7-6:
As previously indicated, the disturbance calculations were performed
based on the conceptual layout and grading for the purpose of
DRAFT
3.7-3
June 21, 2010
comparing them to the original project layout. During the final design
the retaining walls will be designed to actually limit the total amount of
disturbance.
Comment 7-7:
(Page 7-3, Limits of Disturbance) The DSEIS states that the use of
retaining walls is integral to the development of the site, and notes that
they will be as high as 45 feet in places. Yet, no detailed discussion is
provided as to the construction or maintenance of these walls. Mention
is made in Figure 7-1 b to "stone" in the construction of these walls, but
will this be dry laid stone, or will it be gabion walls with stone in wire
mesh boxes, or some other configuration? Gabion walls are subject to
failure, especially if the wire mesh gives way. The Town Engineer is
familiar with such a failure that occurred on Route 287. Such walls are
also an aesthetic concern. They may be suitable along an interstate
highway, but are they appropriate for a residential development in
Tuxedo? (Gross 12/31/09)
Response 7-7:
The Town Engineer indicated that Gabion retaining walls are
appropriate and should be recommended in some locations and not
appropriate in other locations. Retaining walls will be designed by
licensed structural engineers and constructed by experienced contractors
responsible for earthwork. The homeowners association will be
responsible for their maintenance. The DSEIS Figure 7-3 identifies the
anticipated locations of retaining walls and rock cuts. The extent and
location of the proposed rock cuts and retaining walls are preliminary
and further detail will be provided to the Town during the subdivision
and site plan review processes. The types of retaining walls will be
determined during subdivision and site plan review, and will be based
on engineering constraints as well as aesthetic and visual
considerations.
Comment 7-8:
(Page 7-3, Limits of Disturbance) Once in place, who will maintain the
retaining walls? As they will line a roadway system that will be turned
over to the Town, it can be assumed that the Town will be responsible.
(Gross 12/31/09)
Response 7-8:
Please refer to Response 7-7. As was established during the review of
North Ridge, it is the Town’s position that retaining walls be located
outside the public right-of-way or otherwise be maintained by the
homeowners association.
Comment 7-9:
(Page 7-3, Limits of Disturbance) The DSEIS states that the proposed
area of disturbance will be 367 acres, 13 acres less than what is shown
for the already approved plan. However, in looking at the two
comparative figures, it appears that a different set of assumptions were
used in the Mountain Lake area, resulting in a lower estimate of
disturbance in that specific area. Can this different methodology be the
source of the 13 acre difference, rather than an actual reduction in
disturbance? (Gross 12/31/09)
June 21, 2010
3.7-4
DRAFT
Chapter 3.7: Comments and Responses -- Construction
Response 7-9:
A more detailed grading design was used in the Mountain Lake area at
the request of the Town engineer to assure that the disturbance in the
Mountain Lake area could be minimized. The Proposed Modifications
result in changes to the roadway and lot layout that reduces the total
amount of disturbance. The methodology to calculate the disturbance is
consistent between the 2003 FEIS and DSEIS with the exception of the
Mountain Lake area.
Comment 7-10:
(Page 7-3, Limits of Disturbance) It also appears that no disturbance has
been considered for retaining walls, stormwater management facilities,
access to and lots for well stations and sanitary pump stations, the water
tank lot, and the school site. Why have these areas been left out? As
stated above, these are all disturbances which are resulting from the
proposed project, and it is wrong to exclude them. (Gross 12/31/09)
Response 7-10:
The methodology for the limits of disturbance calculations is fully
described in Chapter 7, “Construction Impacts,” of the DSEIS, as well
as DSEIS Figures 7-2 and 7-3. Retaining walls and stormwater
management basins have been considered as part of the limits of
disturbance for the Proposed Modifications. The disturbance limits were
based on the conceptual layout design and therefore are dependent on
the assumptions that both the original concept and the current concept
were based.
Well stations, sanitary pump stations, and the water tank were also
included as part of the calculations for the Proposed Modifications
shown on Figure 7-3, but were not included on Figure 7-2, which
depicts the Future Without the Proposed Modifications. However, the
exclusion provides for a more conservative analysis of the potential
impacts of disturbance of the Proposed Modifications. Both Figure 7-2
and 7-3 exclude the school site because the extent of disturbance will
depend on what the School District chooses to construct which is
unknown at this time.
IMPERVIOUS SURFACES
Comment 7-11:
The Department has received the above referenced DSEIS and has
determined that the proposed action has the potential to cause intermunicipal or County-wide impacts. The revised plans propose to
introduce 12.5 acres of disturbance and 2.9 acres of impervious surface
to the watershed of Tuxedo Lake, which is a drinking water supply for
the Village of Tuxedo Park. The Tuxedo Park Lakes Management Plan
(July 2009) recommends a series of watershed management techniques
in order to safeguard the water quality of Tuxedo Lake. Such measures
include:
•
•
DRAFT
Reduce the amount of impervious surfaces. Replace impervious
surfaces with vegetation, permeable pavements or gravel.
Replace expanses of lawn with landscaped patches of trees, shrubs
and mulch to capture and retain rain water.
3.7-5
June 21, 2010
•
•
Disconnect gutters and other features that transfer rooftop runoff to
roadside ditches or impervious areas, which then directly enter
streams.
Diverting on-site runoff to rain gardens, bioretention swales or other
small depressions where water has time to infiltrate into the soil.
We strongly urge the applicant to ensure these measures (if not done so
already), in addition to other applicable Best Management Practices
such as strict pet waste removal guidelines and fertilizer restrictions, be
incorporated into the design of all development proposed within the
watershed of Tuxedo Lake; ideally, such measures would be
incorporated throughout the entire Tuxedo Reserve development in
order to minimize impacts to other water resources, as well. (Church)
Response 7-11:
Comment noted. The conceptual designs were modified in this area to
direct the runoff from pavements away from the lake where possible.
The Town Engineer will insist that this practice be followed during the
final designs. The Smart Code also includes Best Management Practices
to minimize potential impacts to water resources, such as required ratios
of planting area to impervious surfaces, and number of trees per
building lot.
Comment 7-12:
(Page 7-5, Impervious Coverage) The DSEIS notes the discrepancy in
impervious coverage between the 2003 FEIS (138 acres) and the bulk
table in the 2004 approved plan (148 acres), concluding that the 148
acres is correct. It then goes on to state that the calculated 150 acres of
impervious surfaces associated with the proposed amendments
represents only a 2-acre increase, or 1.3%, over the 2004 plan, deeming
it to be insignificant. However, the assessment of the impact of
impervious surfaces, including stormwater runoff calculations, as well
as the assessment of proposed stormwater management measures in the
FEIS is all based on the calculation of 138 acres, not 148 acres. The
calculated 150 acres therefore represents an increase of 12 acres, or
8.7%, over what had been analyzed in the FEIS. This is indeed a
significant increase which needs to be addressed in the DSEIS. (Gross
12/31/09)
Response 7-12:
The analysis was based on the current design, which involves 148 acres
of disturbance. The stormwater systems will be sized to accommodate
the stormwater flows from the proposed project. FEIS calculations were
performed to achieve conservative results and any differences between
calculated flows and actual flows are not expected to be significant.
Furthermore, the capture of stormwater is regulated by NYSDEC and
all stormwater systems will be required to meet specific criteria as
required by the State.
➭
June 21, 2010
3.7-6
DRAFT
Chapter 3.8:
Comments and Responses – Alternatives
A. CHAPTER 8: ALTERNATIVES
Comment 8-1:
A second alternative involves moving development to land that would
be acquired through a land swap with the PIPC and there are no
indications that the PIPC is amenable to such a swap. (Graetzer) Does it
make sense for the Town to give up the possibility in the future that we
would be have businesses along Long Meadow Road that would be
more beneficial to the Town as far as tax revenues? Do we want to give
that up? (Lindsay)
The Commission has not reviewed any proposal for a land swap and
indicated we would not undertake any review while they were seeking
various local approvals. It was our understanding that local approvals
were unrelated to the land swap. However, it appears that they have
included plans for development on lands currently owned by the
Palisades Interstate Park Commission (PIPC), for which they seek
Town approval. As such it seems premature for the Town to be
considering granting of any development approvals for land owned by
the PIPC. (Mcgowan)
Response 8-1:
The Applicant has had discussions with PIPC concerning the potential
for a land swap. Correspondence from PIPC is included in Appendix I
of this FSEIS. Because the possible PIPC land swap would require
discretionary government approvals, as would the development of the
parcel proposed for acquisition from PIPC, and in order to comply with
New York State Environmental Review Act (SEQRA) regulations, the
land swap was included as a potentially viable and reasonable
alternative to the Proposed Modifications. The potential environmental
impacts of the PIPC land swap were evaluated in the Technical
Memorandum and the DSEIS. The Applicant has not yet filed
applications for approval of the PIPC land swap or for development of
the lands that would be proposed to be acquired from PIPC. The
promulgation of this FSEIS does not constitute an approval of the PIPC
land swap or of any development of lands that would be acquired from
PIPC.
Comment 8-2:
I believe there may be a third alternative which the applicant never
proposes—how about lowering the number of units built? Nothing
in the Special Permit says that Related is required to build all 1,195
units. (Graetzer)
Response 8-2:
The DSEIS has not identified any significant adverse environmental
impact that would arise from the Proposed Modifications which would
DRAFT
3.8-1
June 21, 2010
warrant evaluation of an alternative of fewer units than the number
authorized in the Project Approvals. This comment is directed to an
issue—the Project unit counts—that was fully analyzed in the 2003
FEIS and Findings Statement. It is noted that the 2003 FEIS included an
alternative, Alternative 4, “All Residential Alternative,” which analyzed
a development scenario where 700 to 800 dwelling units, and no light
industrial or commercial development would be constructed.
Accordingly, there is no basis for analysis of an alternative of fewer
units as it has already been examined.
Comment 8-3:
Maybe there is another alternative to this land that the land up here
might in fact become very valuable in terms of carbon offset, carbon
sink credits. (Kilduff)
What I suggest to the developer is that many places have had these
situations where they wanted to develop and instead the went to
someone like New York State, or the many environmental organizations
that buy up parcels land that have sensitive areas such as around
watersheds. (Soroka)
Response 8-3:
The regulations implementing SEQRA state that an environmental
impact statement is to include a range of reasonable alternatives to the
action “that are feasible, considering the objectives and capabilities of
the project sponsor.” According to the Project Sponsor, donating the
land for purposes of carbon offset does not meet its objectives.
Comment 8-4:
We need an alternative plan. I'd like to propose an idea where we can
work with the New York State Parks Department, the Trust for Public
Land, and offer this developer money to buy the property outright. Of
course we'd have to do an appraisal at market rates. Probably puts it
around $20,000 an acre, that is close to 39 million dollars. The
developer is going to tell us that the property is worth far more than
that, you know, probably in excess of a hundred million, and that they
have got about 50 million into it. All right. We can put a biomass
facility on that land, fifty acres. I talked to New York state Parks
Department, and they are okay with it. We can tie a 30 megawatt
facility into the Ramapo interconnect. We can actually make money
here, rather than contaminate our public waters. A plant like that would
generate anywhere from ten to twenty million dollars a year. It would
get you your money back much sooner, in close to eight years, than the
twelve to fifteen years minimum that it is going to take you to build this
property out. We can also address our water plant facility. We can do a
waste energy facility for the Town of Tuxedo. We can do one for the
Village of Tuxedo Park. We can actually bring in five million dollars a
year on a ten megawatt facility. We can bring money in rather than
having a tax negative development like what is proposed here. We
could create a cooperative electrical utility. We could go after Federal
allocation -- there is two hundred million dollars allocated in the State
of New York, that we could go to, to issue tax credit bonds. We
wouldn't be having to be paying money as a municipality, we could
actually issue tax credit bonds where the buyer gets a tax credit. We can
June 21, 2010
3.8-2
DRAFT
Chapter 3.8: Comments and Responses – Alternatives
build the same without having to spend any more money. There is
money that we can go to for an electrical co-op utility. There was eight
hundred million dollars recently available, that just expired on August
4. That money is available to us. (Wilson)
You heard Tom Wilson's proposals tonight. I have helped work with
him on some of the energy aspects of it, the electricity program in
particular. This can be a financially rewarding situation for the Related
Companies, in Tom's considered review and opinion. Let's all work
together on preserving this, and making a win win situation for
everyone. (Kilduff)
Response 8-4:
Construction of a biomass facility on the subject property is contrary to
the objectives of the Applicant as Project Sponsor. See also Response
8-3.
Comment 8-5:
SEQRA requires more than careful consideration of the environmental
impacts of a proposed project. "It requires consideration of such
alternatives to various aspects of the project as might result in
amelioration of environmental problems caused thereby." Rye Town v
King Civic Assn, 82 A.D.2d at 481. More specifically, SEQRA requires
that the SDEIS contain a "description and evaluation of the range of
reasonable alternatives to the action that are feasible, considering the
objectives and capabilities of the project sponsor." 6 NYCRR
617.9(b)(5)(v). (Sterthous)
Response 8-5:
The 1999 DSEIS and 2003 FEIS analyzed five reasonable alternatives
to the Project: No Build, As of Right Development, Concept Approval,
All Residential Development, and Single Access to the Southern Tract
from the northern entrance at Tuxedo Manor Drive. The DSEIS is
limited to an assessment of the identified adverse impacts not addressed
in the 2003 FEIS. Given the scope and nature of the changes included as
part of the Proposed Modifications, the Town Board determined two
alternatives should be analyzed in the 2009 DSEIS: the No Action
Alternative and the PIPC Swap Alternative.
Comment 8-6:
Here, the SDEIS contains a limited analysis of a mere two alternatives:
(i) a no further action alternative that is based on the previously
approved project which has yet to be developed; and (ii) an alternative
that involves an unsanctioned land swap with the Palisades Interstate
Park Commission ("PIPC"). Since both of these alternatives are not
feasible, the entire alternatives analysis is flawed and violates both the
letter and spirit of SEQRA. (Sterthous)
Response 8-6:
The Project can be developed pursuant to the Project Approvals and is
therefore feasible. The PIPC Alternative is also feasible since it can be
physically implemented and represents a design alternative that the
Applicant has pursued. The fact that it would require approval by
governmental agencies does not render the PIPC Alternative unfeasible.
As both alternatives analyzed in the DSEIS are feasible, the alternatives
DRAFT
3.8-3
June 21, 2010
analysis in the DSEIS complies with SEQRA. Please refer to Responses
8-1, 8-3, and 8-5, above.
Comment 8-7:
The no-action alternative is misleading and disingenuous because it
relies on the premise of the project site's existing conditions being those
under the prior approval which it has acknowledged is impractical and
potentially injurious to the environment. Indeed the fundamental basis
supporting the proposed modifications is that the prior approved plan is
no longer viable for financial, market and environmental reasons.
Therefore, it is clearly apparent that the prior approval cannot be
developed as planned. As such, it cannot be presented as the existing
condition of the site or represented as the no-action alternative. A more
legitimate no-action alternative should consider the existing conditions
of the project site as they are presently without any project development
for the foreseeable future. (Sterthous)
Response 8-7:
The No Action Alternative is less preferable than the Proposed
Modifications as it would not offer the same protection to unregulated
vernal pools and other unregulated sensitive environmental areas. The
proposal that the DSEIS include analysis of an alternative under which
the Project Site would be entirely preserved, is directed to an issue that
was fully analyzed in the 2003 FEIS and Findings Statement, and is
outside the scope of the issues analyzed in the DSEIS. Further, the
Applicant’s desire to modify its project in certain respects based on
market and environmental conditions does not mean the prior project is
not viable and no evidence has been submitted from any source
indicating that to be the case.
Comment 8-8:
If at all, the previously approved project itself should also be considered
as another alternative to the proposed modified project. However, in
doing so, the analysis of this alternative should include the current
market for the assumed level and type of development on each parcel,
the likelihood of restrictive and mitigative measures to be imposed and
the reality that cumulative impact analysis will limit the full
development. This is especially true here, given the shifting
conservation priorities assigned to various portions of the project site.
(Sterthous)
Response 8-8:
If the previously approved project itself, i.e,. No Action alternative,
were modified as suggested by the commenter, e.g., revised market, it
would no longer be the No Action alternative. The environmental
impact analysis of the Project as previously approved (the “No Action
Alternative”) was updated in the Technical Memorandum and DSEIS,
as appropriate, to provide an accurate comparison to the Proposed
Modifications. There is no basis for the statement in the comment that
cumulative impact analysis will limit the full development of the Project
under the No Action Alternative. The cumulative impacts of the Project
have already been fully analyzed in the 2003 FEIS. The Technical
Memorandum and the DSEIS confirm that the Proposed Modifications
would not have the potential to generate any new significant adverse
June 21, 2010
3.8-4
DRAFT
environmental impacts, including when cumulative impacts are
analyzed.
Comment 8-9:
Given the applicant's acknowledgment of the environmentally sensitive
areas slated for development under the prior approval, a truly legitimate
alternative worthy of consideration and review is one that totally
eliminates these sensitive areas from development without transferring
the development plans to areas previously designated for open space
preservation. Notwithstanding the prior approval, the applicant has yet
to vest its development rights in that approval and, therefore, is not
entitled to simply trade off the development approval to other lands
dedicated to open space preservation merely because its original
development plan is impracticable. An alternative that eliminates all
environmentally sensitive lands from the development plans is a
legitimate alternative that the Board should require be analyzed.
(Sterthous)
Response 8-9:
The Technical Memorandum and DSEIS have not identified any
significant adverse environmental impacts that would arise from the
new development called for in the Proposed Modifications. Thus, there
is no reason for analysis of an alternative which eliminates development
that would not have the potential to generate any significant adverse
environmental impacts.
Comment 8-10:
As for the PIPC alternative, the SDEIS lacks any acknowledgement
whatsoever from PIPC that it has even been approached with this idea,
let alone that such is under serious consideration or is otherwise viable.
Accordingly, there is nothing to indicate that this alternative is feasible
or within the capabilities of the project sponsor. (Sterthous)
Response 8-10:
The letter from James Hall, PIPC Executive Director, dated December
12, 2008, (Appendix I) states that PIPC has been approached by Tuxedo
Reserve and is open to pursuing the proposed land swap. However, they
will not undertake a review of the swap until the appropriate time when
all local approvals have been resolved and an independent
determination of the public benefit can be made. Please also refer to
Response 8-1.
Comment 8-11:
Chapter 8 Alternatives p. 8-6 states "Given the rugged terrain of the LIO
parcel and the limited viability of neighboring existing commercial
facilities on better suited lands, development of the LIO land into
commercial property is speculative and may never occur...." What else
is speculative, but offered as fact here? (Wooters)
Response 8-11:
The DSEIS endeavors to provide a comprehensive evaluation of the
Proposed Modifications and their potential for environmental impacts. It
utilized the most current data available, and to ensure the accuracy of
the data and analyses, the Town has engaged the services of several
outside consultants to review the facts and conclusions contained
therein.
DRAFT
3.8-5
June 21, 2010
Comment 8-12:
(Page S-6, Alternatives) The DSEIS states, "Under this alternative, the
Tuxedo Reserve Project as it was analyzed in the 2003 FEIS and
approved by the 2004 Special Permit would be constructed." I believe
this statement is disingenuous. The Related Companies received
approvals for 1,195 units in 2004, in the midst of a hot real estate
market. Market conditions remained this way until the middle of 2008.
Given those historic market conditions, if The Related Companies could
have feasibly built the first phase of this project, simply put, they would
have. Yet, they came back before the Town Board on three separate
occasions seeking amendments. This is a clear indication that there was
some impediment to moving forward. Most likely, there were either
regulatory impediments imposed by another approving agency, such as
the NYSDEC, in regard to the wetlands and vernal pools, or site
conditions such as steep slopes and rock outcrops made the project as
approved unworkable from a fiscal perspective. The applicant has been
somewhat forthright in identifying that the approved plans has
deficiencies, but largely to making the argument that the Town Board
would not want them to develop the original plan because of the adverse
impacts that would occur. If this argument is true, then the applicant
should identify in the analysis of this alternative (a) the specific areas of
concern, and the adverse impacts that would arise if the original plan
was developed as approved, and (b) what areas of the plan would not be
developed by the applicant due to regulatory, fiscal, or other
impediments. This is important for the Town Board to truly be able to
compare what would occur under the proposed amendments versus
what would actually occur under the approved plan. (Gross 12/31/09)
Response 8-12:
The comment correctly notes that the Applicant sought and obtained
previous amendments to the Project Approvals. However, the comment
also asserts that these amendments were sought because the Project was
not feasible or because of regulatory impediments. Although these
comments are not germane to the Project Modifications and the DSEIS,
it is noted that these prior amendments to the Project Approvals were
not sought because the Project was either not feasible or in reaction to
any regulatory impediment. Rather, the first amendment was for the
purpose of enlarging the Project Site to facilitate ingress and egress. The
second amendment was for the purpose of approving amendments to the
Preliminary Plan associated with the North Ridge Subdivision.
As part of the detailed review of the North Ridge subdivision
application and to facilitate the Planning Board’s review of certain
refinements to the 2004 Preliminary Plan proposed in the North Ridge
subdivision application, the Planning Board requested that the Applicant
prepare additional natural resource studies within the area of the Project
encompassed by the then proposed North Ridge subdivision to further
document its vegetative and wetland communities. Thereafter, and
proceeding through the summer of 2008, the Applicant undertook
additional similar studies with respect to the remainder of the proposed
Project Site based on the expectation that the Planning Board would
request the same information as part of its review of future sub-phases
of the Project. These detailed studies, as well as updated market studies,
were used by the Applicant to develop proposed refinements to the
June 21, 2010
3.8-6
DRAFT
Project Approvals, both to facilitate future subdivision and site plan
review by the Planning Board and to further improve the Project. In
addition, based on the review of the North Ridge subdivision
application by the Planning Board and the Town’s Consultants, the
Applicant has proposed to clarify and modify various planning, design,
and technical guidelines and standards that were incorporated in the
Project Approvals. Collectively, the foregoing are the Proposed
Modifications to the Project.
The comment suggests that the Applicant analyze the 2004 Preliminary
Plan to identify the changes that should be made to it. The comment is
noted. However, as described above, the Applicant has already
undertaken a detailed analysis of the Project Approvals. The product of
that analysis is the Proposed Modifications. There is no need for
development of an alternative that would replicate the work already
undertaken by the Applicant.
The Proposed Modifications would enhance the Project’s protection of
environmentally sensitive lands and vernal pools used for breeding by
amphibious species of special concern by relocating certain
development to less-sensitive areas, such as the area in the vicinity of
Mountain Lake. Mountain Lake itself, its surrounding wetland area, and
the 100-foot adjacent area beyond the wetland is not proposed for
development and will not be permitted to be developed. The vernal
pools, and other areas to be preserved, are identified in DSEIS Figures
5-2 through 5-7. While some modifications would likely be required as
part of the detailed subdivision review of the No Action alternative, the
Town is not required to preserve the vernal pools for protection of
species of special concern, and therefore the plan as approved in 2004
could still be approved and built. However, the Town expects that any
wetland that was to remain undisturbed as per the 2004 Preliminary
Plan would continue to be preserved as part of the detailed subdivision
review of the No Action alternative.
Finally, it is noted that Proposed Modifications have been analyzed in
the Technical Memorandum and the DSEIS and those analyses confirm
that the Proposed Modifications would not have the potential to
generate any significant adverse environmental impacts. Accordingly,
the analysis suggested by the comment is unnecessary.
Comment 8-13:
DRAFT
(Page 8-3, Natural Resources) The DSEIS states that "some
disturbance" to wetlands and vernal pools "might potentially be
minimized by refining the 2004 Preliminary Plan," but that without the
proposed modifications, the overall development patterns would remain
substantially the same. A major difference between the 2004 plan and
the proposed modifications is the removal of proposed residential units
along the boundary of what had originally been shown as federallyregulated wetlands around the southwestern border of the property.
However, Figure 5-2 now indicates that the wetland is regulated by the
NYSDEC with a 100-foot protected adjacent area, or buffer. The units
present under the approved 2004 plan were removed from what is now
shown as the NYSDEC regulated wetland adjacent area. Assuming this
to be the case, the applicant would not be able to get permits from the
3.8-7
June 21, 2010
NYSDEC to build units in this area, and the claim that the development
pattern would remain “substantially the same” is incorrect and
misleading. (Gross 12/31/09)
Response 8-13:
Please refer to Response 5-39, the 2004 Preliminary Plan remains a
feasible alternative and would comply with applicable regulations.
During NYSDEC’s review of the project and the site, the NYSDEC
indicated that future mapping amendments of State-protected wetlands
in Orange County may include the large wetland located in Phase 3.
While no analysis was conducted and no remapping is currently
proposed, as part of the Proposed Modifications, the Project Sponsor
took the initiative to respond to this potential future regulatory
constraint and removed all development from the potential 100-foot
adjacent area. Figure 5-2 identifies the regulated and potentially
regulated NYSDEC wetlands, as well as providing a 100-foot adjacent
area around the Phase 3 wetland.
Comment 8-14:
(Page 8-3, Natural Resources) The assertion that without the
modifications, the overall development pattern would remain
substantially the same as the 2004 plan is controverted by statements
made on Page 6-7 of the DSEIS: "In the Future without the Proposed
Modifications, it is expected that the Tuxedo Reserve Project would
proceed in accordance with the plan analyzed in the 2003 FEIS and
approved in the 2004 Special Permit. However, due to the presence of
vernal pools and habitat for species of special concern, this plan would
be subject to piecemeal refinements during the subdivision review
process, which would result in a final plan substantially similar to the
Proposed Modifications, as was the case with North Ridge." (Gross
12/31/09)
Response 8-14:
The North Ridge subdivision application process, which was referenced
on page 6-7 of the DSEIS, was approved by the Planning Board subject
to certain amendments to the Project Approvals being approved by the
Town Board. Such a process is normal and is expressly authorized in
the applicable provisions of the Town’s zoning law governing planned
integrated developments. In anticipation of refinements being required
as part of the subdivision process for the remainder of the Project as
approved (the No Action Alternative), the Applicant prepared the
Proposed Modifications.
The No Action Alternative does not include a plan to protect the
environmental features that would be protected under the Proposed
Modifications. Rather, it is the Proposed Modifications that would
protect these environmental features. While the No Action Alternative
does acknowledge that future subdivision review may result in some
plan modifications, the commenter does not dispute that the Proposed
Modifications would protect the same sensitive environmental features
to the same degree as would occur if their protection was the result of
future subdivision review. However, the Proposed Modifications would
impose those protections now and would be binding on all future
subdivision approvals. Because the Technical Memorandum and DSEIS
June 21, 2010
3.8-8
DRAFT
confirm that the proposed development within the Mountain Lake and
Tuxedo Lake watersheds would not have the potential to generate any
significant adverse environmental impacts, there is no reason to defer
the protection of these environmental features until future subdivision
review occurs.
Comment 8-15:
I found an interesting statement on page 6-7 which states, "In the future
without the proposed modifications it is expected that the Tuxedo
Reserve project would proceed in accordance with the plan analyzed in
the 2003 FEIS and approved in the 2004 special permit. This plan
would be subject to the piecemeal refinements during the subdivision
review process, which would result in a final plan substantially similar
to the proposed modifications." The statement goes on to say there
would be no additional development within the Mountain Lake and
Tuxedo Lake watersheds, from that which was analyzed in the
FEIS…In other words the applicant is stating, in their document, that
there was a possible alternative layout that would be substantially
similar to the proposed modifications, accomplishing the avoidance of
sensitive environmental features, but without the need to move units
into either the Mountain Lake or Tuxedo Lake watersheds. I think it's
quite clear that such an alternative would be precisely what people here
have been asking for. And here the applicant is saying that it is indeed
possible. These are their own words out of their SEIS. According to
them this alternative would become reality if the proposed
modifications are denied. If this is the case, then perhaps the board
would like to deny the application. It sounds like it might be better than
the plan that's before you. (Gross 11/23/09)
Response 8-15:
The DSEIS is correct in noting that the overall development pattern
approved in the Project Approvals could be built in the future. Even if
some modifications would be made to provide additional protections to
vernal pools utilized by species of special concern, these changes would
not be expected to change the fundamental and overall development
pattern of the Project. As with all large, multi-phased planned integrated
developments, further refinements are typically undertaken as part of
site plan and subdivision review. For these reasons, it is appropriate to
state that the 2004 Preliminary Plan is feasible and could be built, but
that it would be enhanced by the improvements in the Proposed
Modifications. The DSEIS did not state, nor did it imply as the
commenter suggests, that all of the sensitive features that would be
avoided by the Proposed Modifications could be avoided by refinements
to the Project Approvals without moving development into the
Mountain Lake or Tuxedo Lake watersheds.
Comment 8-16:
(Page 8-3, Natural Resources) The discussion on Page 6-7 goes on to
state: "There would be no additional development within the Mountain
Lake and Tuxedo Lake watersheds from that which was analyzed in the
FEIS." This statement implies that an alternative layout is possible that
would be "substantially similar to the Proposed Modifications,"
accomplishing the avoidance of sensitive environmental features, but
DRAFT
3.8-9
June 21, 2010
without the need to move units to either the Mountain Lake or Tuxedo
Lake watershed. If this is the case, such an alternative should be
presented to the Town Board for consideration before approval is
granted. (Gross 12/31/09)
Response 8-16:
The commenter has taken a number of statements out of context. Please
refer to Response 8-14 and 8-15.
➭
June 21, 2010
3.8-10
DRAFT
Chapter 3.9:
Comments and Responses – Mitigation
No comments were received on this chapter.
DRAFT
3.9-1
June 21, 2010
Chapter 3.10:
Comments and Responses –
Unavoidable Significant Adverse Impacts
DRAFT
3.10-1
June 21, 2010
Chapter 3.11:
Irreversible and Irretrievable Commitment of Resources
DRAFT
3.11-1
June 21, 2010
Chapter 3.12:
Growth Inducing Aspects of the Proposed Modifications
A. CHAPTER 12: GROWTH-INDUCING IMPACTS OF THE PROPOSED
MODIFICATIONS
Comment 12-1:
Moreover, the analysis of "growth inducement" in the SDEIS fails to
acknowledge or assess the effect such a change in the project uses will
have on the potential for growth resulting from the project. (Sterthous)
Response 12-1:
SEQRA requires that an environmental impact statement consider the
likelihood that the proposed action will trigger further development by
encouraging people to move to an area. The SDEIS refers to Chapter
21 of the 1999 DSEIS, and Chapter 2 of the 2003 FEIS, for a discussion
of Tuxedo Reserve’s potential growth-inducing impacts. The 2003 FEIS
found the analysis contained in the 1999 DSEIS accurately reflected the
potential growth-inducing impacts of the Project Approvals. The
Proposed Modifications would not involve the construction of any
additional units beyond those authorized in the Project Approvals. In
addition, the population that would result from the Project
Modifications is comparable to the population that would result from
the existing approved project. There are no new improvements that have
the potential to induce population growth. Therefore, the Proposed
Modifications would not have the potential to generate any new
population growth not previously analyzed in the 2003 FEIS, and
included in the Statement of Findings that were the basis of the 2004
Project Approvals.
The Proposed Modifications do propose to increase the amount of onsite neighborhood commercial use within the Commons building from
3,000 square feet to 30,000 square feet. The additional commercial use,
comprising a deli, bank, café, restaurant, pick-up/drop-off dry cleaner,
boutique shop, and professional offices, would primarily serve residents
of the Project. As demonstrated in the Retail Market Analysis (see
Technical Memorandum, Appendix A), the additional commercial uses
can be readily accommodated by the Project. To the extent there is
additional commercial inducement created, it has already been
determined by the Town in the 2004 Project Approvals that such growth
is beneficial to the Town/hamlet. Therefore, no significant adverse
growth inducing impacts are anticipated.
Comment 12-2:
DRAFT
Rather than analyze the project modifications in terms of growth
inducement, as required by SEQRA, the applicant maintains that an
analysis completed for the 1999 DSEIS remains somehow current and
3.12-1
June 21, 2010
applicable to a project and community that has changed significantly
over the past decade. The applicant would have the Board believe that
simply because the number of bedrooms remains the same any current
changes to the development plans will have little, if any, growth
inducement. Clearly, the question presented is whether the newly
proposed changes in the mix and phasing of the development will have
an effect on the growth of the community in or beyond 2010, not in
1999. Unfortunately, this is not a question that is possible to answer
based on the SDEIS. (Sterthous)
Response 12-2:
June 21, 2010
The changes in the phasing or mix of uses would not alter the
conclusions of the Findings Statement regarding growth inducement.
The Project Modifications would not result in any significant change in
population size, or any improvement or delivery of new service that
would have the potential to induce growth in a manner not already
examined in the previous SEQRA analyses. The overall conclusions
stated in the 1999 DSEIS with regards to growth inducement therefore
remain valid as already assessed and concluded. Locally, if retailers
perceive some unfilled market demand stemming from the increasing
population in the Town, new businesses may be attracted to both the
Town and the Village.
3.12-2
DRAFT

Tuxedo Reserve (Draft)

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