Center of a Storm: 329 State Street. Photo by: Alicia Solsman

Standing in the Streets
Center Square Neighborhood Association reclaims its right to challenge zoning decisions

When 329 State Street, a brownstone carved into more than a dozen apartments, was condemned for being unsafe and a nuisance and put up for auction, neighbors like Elise Van Allen, vice president of the Center Square Neighborhood Association, breathed a sigh of relief. As happens anytime a building is empty, the property also lost its use variance that allowed it be a multifamily building in an area zoned for two-family.

When new owners bought it and sought a use variance to keep the building multifamily, the city granted the variance. Center Square Neighborhood Association and the Van Allens were upset by the parking implications this would have for the already- congested streets of Center Square. They also believed that the variance was illegal, because the owner’s hardship should be considered “self-created” since he bought the building knowing the two-family zoning status.

So the association sued. But to its dismay, the state Supreme Court, on May 15, dismissed the case by ruling that the association didn’t have standing to sue. This flew in the face of accepted legal precedent, which has held in numerous cases that an association has standing to sue if: its members would have standing on their own, the interest is relevant to the organization’s purpose, and the claim doesn’t require the participation of individual members.

In this case, the Van Allens would have had standing on their own as adjacent property owners, the interest of neighborhood quality of life and parking were part of the association’s purpose, and no individuals needed to participate in particular.

“They knew they couldn’t win on the merits, so they tried to win on the standing,” said Jeff Baker, the association’s lawyer. Terrence A. Gorman, Albany assistant corporation counsel in charge of the case, said he couldn’t comment because the litigation was ongoing.

Van Allen said they had no choice but to appeal, since the ruling could set a precedent that would prevent historic preservation groups, environmental groups, or even regular property owners from challenging zoning decisions. “It basically gave developers and zoning boards carte blanche to do whatever they want,” she said, noting that zoning boards already frequently take the chance that property owners won’t come up with the substantial sums required to bring a legal challenge to their rulings.

The state Supreme Court’s appellate division reversed the first ruling, holding that “the association has members that own property abutting or within several homes of the properties at issue, close enough to established standing without allegations of individual harm.” It also noted that the parking congestion in the neighborhood was a “legally recognizable injury” that affects association members more than it would the city at large. The case is now returned to the lower court for the question of the variance itself to be decided.

The case has also highlighted the power of neighborhood associations to affect their neighborhood, for better or for worse. “In this case the neighborhood association did the right thing,” said Michael Allen, principal of Bailliere Consulting, a community planning and architecture firm in North Greenbush, noting that the number of units was excessive given the parking situation.

But he also noted that the city, by unrealistically zoning an area that was built primarily of three- or four-unit buildings for two-family, had made many of them “effectively unusable from an investment or real-estate standpoint.” (Baker disagrees with this assessment. “Just reconfigure the inside,” he said.) Allen said this unrealistic zoning means that owners will always need variances, which “creates an artificial trigger” that gives a neighborhood association standing to challenge almost anything that happens in the neighborhood. Such level of power, he noted, “can be abused by exclusionary groups to keep development out.”

“The city needs to decide if it wants to encourage re-development and investment, and should zone the buildings appropriately and provide neighborhood parking,” he said.

Baker thinks there shouldn’t be any worry that the appellate court ruling would play into the hand of more narrow-minded associations across the state, since neighborhood associations can still sue only if the municipality has done something illegal in the process. People do sue when they’re merely unhappy with a variance, he said, “but they’ll generally lose those cases. In any case, where you’re challenging a municipality, the presumption is with the municipality.”

Although in many places neighborhood and homeowners associations have led the fight against increased density, mixed use, and other features that often figure in what environmentalists and urbanists have termed as “smart growth,” Van Allen said smart growth is a concern of hers too. It’s just that “smart growth doesn’t have a chance if the city isn’t following its own rules.”

—Miriam Axel-Lute
maxel-lute@metroland.net

We Wouldn’t Want to Worry You
Activists say depleted uranium should no longer be exempt from “radioactive” labeling

Recently there have been many things U.S. citizens have been told to be concerned about, from security at events such as this week’s Democratic National Convention in Boston to the safety of our troops overseas. Security issues are brought to our attention via colored alert patterns, news reports and longer commute times in seemingly every metropolitan area of the country.

But there are also some security threats the U.S. military doesn’t want people to worry about. In the case of depleted-uranium shipments, the military has procured an exemption from the federal Department of Transportation (DOT) in order to protect U.S. residents from worry. DU, used by the military for weapons, is being shipped throughout communities all over the country in unmarked transport vehicles because, according to the military, marking the trucks would cause “unnecessary public concern about the radiation risks associated with DU munitions.” The exemption allows branches of the U.S. military to ship DU munitions without the “radioactive” placard, which would be required under normal DOT regulations.

Depleted-uranium munitions are made from low-level nuclear waste. An August 2002 Navy Radioactive Materials Permit supplement notes that burning DU creates significant “radiological hazards.” DU has also been associated with Gulf War Syndrome, though the association has been disputed, as well as with health problems surrounding the National Lead site in Colonie, which manufactured DU munitions [“One Half-Life to Live,” Feb. 5].

The Military Traffic Management Command officials stated in their initial application for the exemption that, among other reasons, they “do not want to raise public concerns by placarding trucks with the words ‘radioactive’ and ‘explosive’ since the combination of these two hazard class placards may be construed to mean that nuclear weapons are being shipped when this simply is not the case.” The exemption has been renewed every few years since the military first filed the application in 1986. The most recent date for renewal was June 30, but as of this week, DOT was still deliberating the renewal.

While these military shipments of depleted uranium still contain the “explosive” placards on their vehicles, many people wonder if this is enough warning, especially for anyone working as a firefighter, police officer or other first responder should one of the transport vehicles get into an accident. Without proper identification, they would not be aware of DU’s presence and would not know to take the proper precautions to avoid exposure to radiation, said advocates for removing the exemption.

Sunny Miller of the Traprock Peace Center in Deerfield, Mass., is one of many activists concerned about what renewal of this exemption will mean to residential communities throughout the country. Through independent research and interviews, the Traprock organization has found that an estimated 166,000 tons of DU munitions are shipped through the United States each year under this exemption.

Carole Ferraro, of the Depleted Uranium Weapons Network of the Hudson Mohawk Region, believes that by not notifying the public of the dangers involved with these shipments, the military is “playing with our lives.” Ferraro questions the “public-concern issue,” stating that “they only mark [the trucks] explosive, meanwhile they have orange alerts for no reason.”

These organizations are not the only ones concerned about the possibility of the exemption being renewed; recently DOT has received more than 100 letters about it. The letters have come in from all over the country, from concerned families and politicians, as well as one irate citizen of the United Kingdom who states in his letter that “First responders, the fire brigade and the police, deserve better than government lies and deception. If they are called to a radioactive and explosive accident, they should damn well know.”

Public outcry over this issue is suspected to be one of the reasons DOT has not yet come to a decision on the renewal of the military’s exemption. The department has placed all information and letters regarding this exemption on its public docket system even though that is not standard practice. Joe Delcomb of the DOT’s research and special programs administration said that while renewals don’t always warrant being placed on public docket, they are doing so in this case because of “public attention” to this issue.

This move has given hope to the many citizens who have voiced their concern about the exemption, and as Ferraro said, are “hoping that people’s goodness will notice and fix it.”

—Amelia Koethen

During a recent public- comment period held by the committee negotiating Albany’s cable contract [“Whose Programming Is This?” Newsfront, July 15], city residents offered up a host of suggestions to committee members and introduced a few of the issues likely to become major points of discussion in the months to come.

Many speakers called for the committee to bring in professional assistance for negotiations with cable provider Time Warner, whose contract with the city expires in October. Sue Buske, of the California-based Buske Group, was named as the favored consultant. The Buske Group is expected to wrap up contract negotiations involving the city of Troy in the near future, and was recently tapped to provide assistance for Colonie’s contract renewal.

Potential locations for a public-access studio also were discussed, with Albany Public Library Director Jeff Cannell suggesting the APL, which served as a home for the city’s previous public-access studio. However, committee members questioned whether the APL would be a feasible location if, as has been arranged in other municipalities, a nonprofit group were assigned to manage studio operations.

Marggie Skinner, a local resident and community advocate, recommended that property along Central Avenue be put to use for the city’s public-access needs.

“There are a lot of empty buildings around there,” said Skinner.

Albany Common Councilman Michael O’Brien (Ward 12), who also recommended that the city speak with the Buske Group, said that last time the cable contract was negotiated, city representatives “came into it cold,” and public-access programming was pushed as a tool for schools rather than the general public.

O’Brien also pointed out that Schenectady, which has had active public-access programming for nearly 20 years, adds a small fee to all cable subscribers’ bills in order to fund the studio. However, local media advocate Steve Pierce said that the average cable bill in Schenectady remains lower than that of Troy, where no such programming exists.

Councilman David Torncello (Ward 8), a member of the committee, acknowledged that negotiations are likely to take quite a while, and said the comment period had provided some food for thought.

“There’s no way we’re going to renew [the city’s contract] by October,” said Torncello, “but we knew that coming in.”

According to Torncello, obtaining well-supported public-access programming is one of the major concerns for the committee. A potential increase in the amount of money the city receives from Time Warner is another, as previous contracts have contained a narrow definition for companies’ gross revenue.

Revenue generated by services like high-speed Internet access may have been left out of the city’s current contract, explained Pierce.

A third priority for committee members is connecting local agencies via cable network. According to Pierce, an “iNet” system that connected public buildings could be used to initiate live programming from any of these locations.

“Imagine it,” said Pierce, “a broadcast of every town hall, city council or board meeting—every council member getting a chance to address their constituents.”

“I’d like to see the ability for the mayor and department heads to broadcast messages to city residents,” added Torncello.

While Torncello indicated that the city has a long way to go before any agreement is achieved, he viewed the fact that Albany’s contract expires after those of many of the surrounding localities as an advantage in the bargaining process.

“We can see what other areas are able to arrange with Time Warner before we decide what we need,” said Torncello. “Who knows? We may want more.”

—Rick Marshall
rmarshall@metroland.net

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