Red Wing Properties is now threatening suit over their stalled permit renewal, which has been held up since January by the Rhinebeck planning board because of a dispute over the access road to the property.
The warning of litigation came from an attorney for Red Wing, Christopher Stevens of Bond, Schoeneck & King, who told the planning board Sept. 15 that denying an application based on what he called a “private property” dispute would be a “bad precedent.”
“Red Wing is precluded from conducting business on its own property,” Stevens said, adding that litigation might become necessary soon if the board continued to withhold its approval.
Mining operations at the 234-286 White Schoolhouse Road site have remained halted while the owner struggles to prove they have the right to use the privately owned access road.
Meanwhile, town officials have been working on a zoning amendment that would restrict further mine expansions within the town. But planning board opinion on the amendment was split at their Sept. 29 meeting, and the lack of agreement resulted in a tacit approval unless further action is taken before Oct. 10.
The mine access issues began shortly after Red Wing submitted an application to the town for re-approval of the existing 37.5-acre mine on their 237-acre property. Town mining permits must be renewed every five years.
During the early stages of the application’s review, the planning board and town residents learned that Red Wing had another application pending at the state Department of Environmental Conservation for a plan to expand the mine by more than 100 acres.
That plan caused concern from neighbors on the road, including Stephen Lobotsky who owns the access road to the mine. At the March 3 planning board meeting, board chair Michael Trimble stated that access to the road had been withdrawn by Lobotsky.
In June, planning board attorney John Lyons also told the board that Red Wing cannot legally access its mining operations without Lobotsky’s approval. The Red Wing site does not have its own access road, even though part of the property does have road frontage.
The original road use agreement was apparently an informal one between Lobotsky and Vincent Kinlan, who previously ran the mining operations at the property. Red Wing took over the operation in February 2013, and Lobotsky has maintained publicly that access was never formally extended to the company.
At the June meeting, Lyons said that unless Red Wing could produce evidence that they have legal access, the company’s application for a special use permit and site plan approval would be designated incomplete. The issue was then tabled until September to give all parties time to reach common ground.
At the Sept. 15 planning board meeting, Red Wing’s representatives could not provide documentation showing the right to use the access road.
But Stevens said, “Red Wing has clearly established a right to use this access road by using it repeatedly, continuously, openly and notoriously for over 20 years.” At the least, he said, the company has acquired a prescriptive easement due to that continued use.
Stevens also cited a town law stating that if a mining permit has been approved by the state DEC, which oversees all mining in the state, then the planning board “shall” deem the same submitted application complete. The DEC mining permit for the existing operation was renewed for Red Wing Properties in January.
Stevens added that town law does not allow the planning board to “refuse or deny or hold hostage” a special use permit, though it does have the right to impose conditions on an application.
Planning board members had mixed reactions to Stevens’ presentation.
Board member and town board candidate Richard Murray said he was in favor of continuing to table the issue. We should let them work on their differences…I don’t see why we’re in a rush,” he said.
But others disagreed.
Vice-chair Melodye Moore, who has been chair on the issue since Trimble recused himself in March, directed her comments to Red Wing’s president, Frank Doherty. “I do think it’s sad that three months have gone by and you have made no apparent attempt to reconcile the access issue,” she said.
After discussion, the board then tabled consideration of the application until their Oct. 20 meeting, at which time alternative resolutions, drafted by Lyons, will be considered. The board encouraged Doherty to continue to work on gaining access to his mine.
Resident Karl Dunkenberg of Bollenbecker Road, a neighbor to the mine and a vocal opponent of its expansion plans, told the board, “I hope the planning board will be aware that, by tabling this today, you’ll be doing the exact same thing that you have done at least two times before: setting a hard deadline and then letting it go past with the understanding that that hard deadline was for Red Wing to show us documentation… This really affects our lives, our understanding of whether we’re going to be able to quietly enjoy our properties in the future or whether there’s going to be a rapidly expanding industrial area in the middle of our country road.”
Public outcry against the mine permit renewal and its proposed expansion—which is a separate application now before the state and not the town–has been considerable. Since the initial public hearing on the permit in January, dozens of residents have spoken in opposition, and the board has received dozens of letters from concerned citizens, according to the planning office.
In March, Trimble, who is a resident of the road, formally requested as a private citizen that the town board consider a zoning code amendment that would allow only existing mines, with no expansions. He contends that the amendment would be in line with the town comprehensive plan approved in 2009.
In August, the town board drafted the amendment, which applies to the Mining Overlay District and the three existing mines designated and approved by the state DEC, including Red Wing. The amendment was forwarded to the planning board, which briefly discussed it in September and then tabled it for further review.
On Sept. 29, at a special planning board meeting, town planning consultant Art Brod recommended that the amendment be adopted based on several factors, including preservation of valued habitat, agricultural resources and the existing aquifer.
But board members had mixed opinions: three abstained, one voted for and one voted against recommending approval of the amendment to the town board.
Lyons explained that by law, a failure to submit a formal recommendation by the 60-day deadline of Oct. 10 would then be interpreted as a recommendation for approval of the measure.