72- The 22 Comments

I just submitted all of these comments, in one email, to the Woodstock Planning Board. I copied the comments to members of the press, the Town Board, several attorneys, and interested citizens.

Here we go...

Comments on RUPCO’s Woodstock Commons FEIS

Review Period: March 10-26, 2010

These comments are submitted by Robin Segal on behalf of:

Woodstock Commons Limited Partnership

7 Evergreen Lane, Woodstock NY 12498

Comments are numbered 1 to 22.

Comment #1:

With no notice or announcement, RUPCO changed the corporate structure of the Woodstock Commons project, and represented this change as a “simple” name change.

RUPCO has changed the corporate structure of the Woodstock Commons ownership entity. Whereas the owner of the project used to be a future limited partnership, now the owner of the project that has been substituted is a limited liability company. The owners of the substituted owner are different from the announced partners in the previously described Limited Partnership. This radical departure from the previous structure is problematic for several reasons.

First of all, the new owner, Playhouse and Elwynn Associates, LLC, is a wholly owned subsidiary of RUPCO. Where will the investment money come from? How will the previously referred to investor limited partner participate? Will these future partners join the LLC, thereby making the LLC no longer a wholly owned subsidiary of RUPCO? Or will the LLC no longer be the sole owner of the project?

There are so many unanswered questions here, and the most striking thing is that the Planning Board simply nodded when Community Relations Director Guy Thomas Kempe read the new paragraph in the DEIS, thereby altering the DEIS and all other documents. The Planning Board did not see fit to have its attorney present at the meeting at which this alteration of corporate structure was introduced, discussed, and then voted to accept unanimously by the Planning Board. We have to ask why the Planning Board’s attorney was not present. The Planning Board knew that the name issue was going to come up, and that it was a problem that was legal in nature, and perhaps (and we know for a certainty) beyond the ability of the members of the Planning Board to fully understand.

The significance of this corporate name switch appears to be beyond the comprehension of RUPCO’s attorney, who was present at the meeting, helped to answer questions, and did not seem the least bit interested or concerned that any of these enormous changes were occurring and being voted on right before his eyes. Perhaps he needs more sleep. Other than that explanation, we would say he is incompetent. Attorney Moriello’s letter states that the Woodstock Commons Limited Partnership name would be replaced by the new limited partnership name, however in the FEIS itself, this did not happen. The supporting document is not consistent with the paragraph in the FEIS itself.

Here are Community Relations Director Guy Thomas Kempe’s exact words of introduction, at the March 4, 2010 meeting, and then reading the added paragraph of the FEIS:

“There was an issue that came up concerning, um, the, ah, the name of um Woodstock Commons LLC, which we have addressed, um, and, it appeared only one place in the FEIS, on page fifteen. Um, this, these documents are tabbed and you have at that tab, the language that we, um, added. Um, and so I’m going to read that to you now.

‘Upon its determination that the name Woodstock Commons Limited Partnership is no longer available, RUPCO has amended all instances whereby the Woodstock Commons Limited Partnership was referred to of record before the lead agency and all other interested involved agencies, so that the name Playhouse and Elwynn Associates LLC is substituted in its place. This amendment shall apply to but shall not be limited to the Draft EIS, the Final EIS, all applications, submittals, exhibits, addenda, appendices and all other documents of record. The lead agency notes that RUPCO has been since the September 14, 2005 Woodstock Application remains the Applicant project sponsor.’ ”

Second, when Community Relations Director Guy Thomas Kempe was trying to explain the ownership structure of Woodstock Commons to the planning board, that is, trying to explain how RUPCO and the LLC and the LP were connected and why each was necessary, he got the explanation wrong. He told the board that the limited partnership is a subsidiary of a subsidiary. What that means is that Community Relations Director Guy Thomas Kempe thinks that RUPCO owns the new LLC (which is true,) and that the LLC owns the new LP (which is false.) Think about it: if a partnership is wholly owned by another entity, then the partners are not really partners, but simply owned by the same owner. The LLC is, in fact, one partner in the partnership. The other partner is not owned by RUPCO at all. The other partner in the LP is, or should be, one or more investors. However, if in fact the LP has been formed and its members are all owned by RUPCO, then this is a significant departure from the description of corporate ownership given in the DEIS.

Here are Community Relations Director Guy Thomas Kempe’s and Attorney Moriello’s exact words of “explanation”:

GUY THOMAS KEMPE: we create a limited partnership, which is a subsidiary to the subsidiary of RUPCO, and you create that because you need a taxable entity to be eligible for the tax credits that come into it. It’s just that simple and RUPCO being a not for profit, we have to create- this is, this sounds more sophisticated than it really is. It’s just what it is.

MICHAEL MORIELLO: There’s also the LLC.

GUY THOMAS KEMPE: Well the LLC is the holding company for uh, for the project. The holding company being now Playhouse and Elwynn LLC will continue forever and that will be the ownership entity for the property.

Previously, the ownership entity was supposedly the limited partnership. Now, Community Relations Director Guy Thomas Kempe says the owner is the LLC. But he also calls it the holding company.

Comment #2:

The independent auditor’s report of RUPCO’s financial positions at the end of 2008 states that RUPCO’s total investment in partnerships is $1,767,414. Why does RUPCO have any investments in partnerships?

Comment #3:

Woodstock Planning Board member Laurie Ylvisaker colluded with RUPCO by publically advocating a desire for association with RUPCO, who appeared before the Planning Board. Ylvisaker voted on matters pertaining to this entity without recusing herself.

Comment #4:

RUPCO has paid thousands of dollars in late fees to the IRS, simply because it is a sloppy organization. RUPCO’s cost and time estimates are unreliable.

RUPCO paid $6,089 in late fees for filing their 2008 federal tax return late. That is not the only late fee they have ever paid. $6,089 a big number, particularly since the property taxes RUPCO will pay on Woodstock Commons are based on net operating income. Where sloppiness and lateness and extra fees are paid all over the place, income will be lower. So too will property taxes paid to the town.

The pattern is clear: sloppiness with regard to the law, lateness with regards to payments, and gross errors in explaining the basic structure of the project to the lead agency of the town in which it will be located. All of this points to, at the very least, a lack of competence.

Comment #5:

RUPCO has used the name Woodstock Commons Limited Partnership illegally. RUPCO continues to use the name Woodstock Commons Limited Partnership on its website, in the DEIS, which remains unaltered, despite RUPCO’s claim that the name has been amended.

The name Woodstock Commons Limited Partnership is not owned by RUPCO, nor does RUPCO have permission to use this name for any reason. However, RUPCO has the DEIS up on its website right now, and the DEIS is full of instances of the name Woodstock Commons Limited Partnership. This is simply illegal, and very definitely actionable.

Here are two emails Robin Segal sent to Kevin O’Connor, March 8 and March 10, 2010, respectively, both cease and desist letters, asking him to remove the document featuring the Limited Partnership name that RUPCO has no right to use.

First letter:

Hello Kevin. The Woodstock Commons DEIS is hosted on your website. It contains the name Woodstock Commons Limited Partnership. As you know, RUPCO has no right to that name, and never did. As you know, my partner and I have owned that name for several weeks. You know this because you hired somebody to videotape my speech announcing that fact. I am asking you to take the current document (DEIS) down immediately, today, right now, since it is an illegal use of a legal name, and it is an infringement on my rights.

Furthermore, the added paragraph to the FEIS that Guy Thomas Kempe read aloud at the March 4, 2010 Planning Board meeting clearly states that all uses of my limited partnership name in RUPCO documents have been amended in but not limited to the FEIS, DEIS, all exhibits, addenda etc etc... Clearly, that was a false statement and raises more questions about RUPCO's disregard for the truth and the law.

I will be checking up with all third parties who have received correspondence from RUPCO citing "Woodstock Commons Limited Partnership" to ensure that RUPCO has amended my name in relevant correspondences.

Have a nice day.

Robin Segal

Woodstock

Second letter:

Good morning, Kevin. It is now six days after the Woodstock Planning Board approved your Woodstock Commons FEIS and it is well past the time that you should have put the FEIS up on your website, to comply with the compulsory review period.

Also, the RUPCO website continues to host the DEIS, which features "Woodstock Commons Limited Partnership" which is a name that you do not own. This is the second and final cease and desist letter that I will send you about this violation. Take the document down, or change it, as you claimed to in the FEIS (and the Planning Board accepted that claim in the FEIS so you actually have to do it.)

Have a nice day.

Robin Segal
Woodstock

Comment #6:

The width of Playhouse Lane was reported differently in two sections of the Draft Environmental Impact Statement, and this was not corrected in the FEIS. When asked clearly and directly to tell the Woodstock Planning Board the width of Playhouse Lane, RUPCO representatives would not answer the question.

The width of Playhouse Lane is a question that would seem to be a simple one to answer around the table at a Planning Board meeting. And, if any controversy existed around the table, it would seem easy enough to take a tape measure and measure the road, both for RUPCO personnel of any station and for any member of the planning board.

Alas, this mystery of the width of Playhouse Lane has become quite a hot topic, for it seems that nobody on the planning board or on the RUPCO team wants to answer the simple question: “How wide is Playhouse Lane?” When asked about this during the March 4, 2010 Planning Board meeting, Attorney Michael Moriello answered: “I don’t know where it is in the document.” Then he gave some runaround talk about ownership of Playhouse Lane. He laughed nervously a lot. Community Relations Director Guy Thomas Kempe helped the attorney steer away from the width question, towards the ownership question, which was irrelevant to the width question. RUPCO’s inability or unwillingness to answer the question is odd, since RUPCO paid a videographer to videotape Robin Segal present these very facts complete with page numbers and citations, on February 23, 2010.

In the DEIS, one engineer measured 23’; another engineer measured 17-20’. The difference makes all the difference in the world. RUPCO’s unwillingness to address the question makes one suspicious. Why is the width of Playhouse Lane such a secret? It must be because the true width of Playhouse Lane is not only not what RUPCO reported it was, but also because the true width of Playhouse Lane is not wide enough to accommodate the traffic that Woodstock Commons will generate.

Comment #7:

A conflict of interest exists between RUPCO, the Woodstock Planning Board, and Planning Board’s newest member, James Huben.

A conflict of interest exists between RUPCO, the Woodstock Planning Board, and Planning Board’s newest member, James Huben. Mr. Huben works for New York State’s agency that advocates for the interests of the developmentally disabled. RUPCO’s Woodstock Commons, at the time that Mr. Huben applied to be considered for membership on the Planning Board, had set aside two of fifty-three units for the developmentally disabled. Mr. Huben, while apparently qualified to serve on the Planning Board in general, has a direct conflict of interest, since he works by day for the interests of one specific group of the population that is being served by Woodstock Commons, and therefore has a conflict of interest. He should have recused himself from the RUPCO case.

Comment #8:

The Woodstock Planning Board has confused the term “intersection” with “intersection’s functional area.”

The planning board has decided that the cars entering and exiting Playhouse Plaza parking lot are allowed to not be counted in the traffic study because the parking lot is “not an intersection.” They all kept repeating this at the March 4, 2010 meeting... However, this is inaccurate. A parking lot is NEVER “an intersection.” While the entrance and exit to the parking lot does not constitute a road lane, the cars still come from and go into the three-way intersection’s “functional area.” Whether the intersection is three way or four way, the square section that is, by definition, the INTERSECTION of Route 212 and Playhouse Lane, which borders the parking lot is STILL an intersection, whether or not the cars enter or exit it from a road or from a parking lot.

Comment #9:

RUPCO is very confused about the State’s right of way at Route 212 and Playhouse Lane.

Community Relations Director Guy Thomas Kempe attempted to explain the right of way at the Playhouse Plaza parking lot and Route 212. He told the planning board that fourteen feet from the building towards the road was private property, and the rest belonged to the state. This is at best completely backwards.

The state owns fifty feet, which is twenty-five feet in each direction from the center line. After eleven feet of traffic lane, the remainder of the right of way, measured from the white line towards the buildings, is fourteen feet.

Community Relations Director Guy Thomas Kempe had the whole equation completely backwards, and nobody on the planning board blinked an eye.

Comment #10:

Community Relations Director Guy Thomas Kempe has declared the parking lot at Playhouse Plaza to be the property of the state.

Community Relations Director Guy Thomas Kempe has declared the parking lot at Playhouse Plaza to be the property of the state, and that parking rights there should not exist, even if they have been granted by tradition to store leaseholders in Playhouse Plaza. It is relevant to the public that RUPCO has declared that a parking lot, which Dara Trahan told Robin Segal was privately owned, in fact is, according to RUPCO, the property of the state, and outside the control of the Planning Board or the town at all. It is also relevant to the public, and to the owner and leaseholders of Playhouse Plaza, that the Planning Board simply accepted this declaration. In no subsequent forum has the Planning Board or its attorney challenged this declaration. It is only fair for the Planning Board to make public their new understanding of the land rights in this area, since it was the firm belief of Ms. Dara Trahan, Woodstock Planning Specialist, that this parking area was private property.

Comment #11:

Playhouse Lane is not wide enough to accommodate the traffic that Woodstock Commons will generate. RUPCO has invented numbers of trips per day.

Playhouse Lane is not wide enough to accommodate the traffic that Woodstock Commons will generate. RUPCO has invented numbers of trips per day. They never measured the baseline number of trips per day on Playhouse Lane, only trips at peak hours. Therefore, they cannot estimate the total of baseline plus additional trips. RUPCO also diverted what would naturally be trips down Playhouse and across Edgewood Lane, and then down Plochmann Lane to 212; to across Whites Lane and then down Plochmann lane to 212. By following this totally counterintuitive route, RUPCO has generated a number of trips that would make Playhouse Lane a low volume road, and therefore it would not require widening. If one makes realistic trip route projections, then Playhouse Lane would be an intermediate volume road, and would need to be widened.

In addition to the width of Playhouse Lane not be sufficient, the strength of Playhouse Lane is also a matter to be considered seriously. Is Playhouse Lane strong enough to be traveled by numerous large trucks, each truck carrying several tons of building materials? Has this matter been studied? Has the cost of making Playhouse Lane strong enough been estimated?

Comment #12:

RUPCO’s corporate structure is opaque and suspicious. There could be conflicts of interest and nobody outside of RUPCO has access to the information to verify whether this is true.

Playhouse and Elwynn Limited Partnership, according to the text of the FEIS, is totally unnecessary, but has been created anyway. The general partner in the LP is Playhouse and Elwynn Associates LLC. Who is/are the other partners in this Limited Partnership? In order to avoid any conflict of interest, it is necessary to show that the other partner or partners in this partnership are not connected in any significant way to any of the project’s gatekeepers, such as Planning Board members, Town Board members, RUPCO employees, or RUPCO board members.

Comment #13:

The public cannot review the Planning Board’s activity with regard to the Woodstock Commons project with any assurance because no meeting minutes exist going back at least nine months.

The Woodstock Planning Board has not produced meeting minutes or draft minutes for meetings held in February or early March of this year. This is a violation of law. The Planning Board is aware of this law and continues to plod along, seemingly unconcerned.

In addition, all meeting minutes going back to June 2009 and possibly longer are draft minutes, unapproved by the Planning Board. This means that the public has no record to consult and rely on. The result of this situation is that the Planning Board has essentially been meeting from one meeting to the next without allowing the public any verifiable record of their activities. This deficiency may not seem important now. It is.

Comment # 14:

The Definition of “Artist” for Artist Housing in Woodstock Commons is So Vague that it is Meaningless. Anybody will be able to define him or herself as an artist for this housing.

There are set-aside units for “artist” housing in Woodstock Commons. This set-aside is made possible by the 2008 Housing and Economic Recovery Act (H.R. 3221-231).

Section 3004, called “Other Simplification and Reform of Low-Income Housing Tax Incentives” includes:
(g) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
Subsection (g) of section 42 is amended by adding at the end of the following new paragraph:
“(9) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
A project does not fail to meet the general public use requirement solely because of occupancy restrictions or preferences that favor tenants—
“(A) with special needs,
“(B) who are members of a specified group under a Federal program or State program or policy that supports housing for such a specified group, or
“(C) who are involved in artistic or literary activities.”

What all that means is that anybody who can show that they are “involved in artistic or literary activities” can qualify as an artist. RUPCO is not authorized to redefine or narrow this definition in order to make this set-aside favor any one category over another.

Now, since Woodstock is such a famous artists’ town, don’t you think that artists from all over the place will drive to Woodstock or Kingston to apply for artists’ subsidized housing?

The laws of unintended consequences are going to make a laughing stock of our town if RUPCO opens “affordable artist housing” to a statewide lottery. Probably not more than two currently local residents secure the units set aside for artists.

Comment # 15:

RUPCO overestimated property taxes from Woodstock Commons. RUPCO has withheld figures necessary to derive their projected assessment, resulting in a serious lack of transparency in their application.

In the DEIS, RUPCO estimates their combined property tax payment for the 53 rental units at $18,853, which, at 2.06% means that the property is valued at $915,194. (Dividing this assessed value by the number of units yields an assessed value of $17,268 per unit.)

RUPCO writes that assessed values are approximately 0.87 of market values, so the market value of the total development should be figured to 915,194/0.87 = $1,051,947.

RUPCO has derived their estimated tax levy using the method described in RPTL Section 581-A, which is the tax law enabling affordable housing owners to use the net income of an affordable housing development to determine the basis of property tax payments. WE include RUPCO’s quotation of this law, which appears on p. 418 of the DEIS.

We should take a look at how this “net operating income” is derived, and project whether or not we think RUPCO’s estimates are realistic.

Multiplied out, the first year, the average unit will rent for $512. At twelve months per year and 52 rental units, the income to the project will be $320,000. But that does not mean that this is the figure used to derive the assessed value of the property. This is just the gross income.

Let us come back to this gross income of $320,000 a bit later. For now, we will focus on RUPCO’s estimated tax payment:

Using the 10% capitalization rate stated on p. 420 of the DEIS, RUPCO has multiplied the capitalized value of the project by the tax rate, to arrive at the estimated tax payment.

assessed value x tax rate = tax payment

or:

tax payment / tax rate = assessed value

We know RUPCO’s estimated tax payment is $18,853. We know that the tax rate they use in the DEIS is 2.06%.

$18,853 / 0.0206 = 915,194.

The capitalization rate RUPCO uses is 10%, which means that the net income after operating expenses, according to RUPCO, will be $91,514.

Coming back to RUPCO’s gross income of $320,000, and net income projected to be $91,514, this means that RUPCO estimates expenses, at least in the first year, to be $320,000 - $91,514 = $228,486.

Has anybody asked RUPCO for details of this $228,486 estimated expense figure? After all, it is integral to the tax payment estimate put forth by RUPCO. Is this number supported anywhere in the documentation? Has anybody really understood that the more RUPCO spends on maintaining Woodstock Commons, the less RUPCO will pay in taxes? The closest thing that we have found to any accounting of operating cost estimates is RUPCO’s “Maintenance Operations, Preventive Maintenance, Utilities and Energy Plan” which is DEIS Exhibit 27B.

This estimate of $228,486 is very low. If you take the caretaker’s salary and benefits, the water bill which will be borne entirely by RUPCO, the electricity cost of lighting the whole place every night, the cost to run and heat the community building, and the elevator, and all the communal spaces, and maintain the nature trails, and clear the private road, you are looking at much more than $228,486.

In fact, the geothermal power technology itself will be a big drain on electricity because of the way in which it works. Geothermal power is a “slow” heating technology. What that means is that when you have a thermostat set at a certain temperature, and somebody opens a door and walks out, (or a highway garage door and drives out,) the temperature falls and the auxiliary electric heat coils bring the temperature back up quickly while the geothermal power is slowly coming online. In terms of speed, geothermal power works slowly, like a battery, but instead with a heat exchanger. You can only get so much energy out of the system per minute, unlike a boiler, which cycles on and off and delivers heat quickly since combustion is a very quick way to generate energy. Since RUPCO claims that its power use will come exclusively from geothermal energy, there will be no other backup system, except for the built-in electric resistance heating in the geothermal power units. In addition, using this technology in a building’s common areas, where there will be a lot of in and out traffic, implies a very high rate of temperature variation, and thus, a high drain on the electric load.

Aside from the drain on electricity that the geothermal power will have, about which RUPCO is probably entirely unaware, there will be the usual initial things that go wrong in new construction, and those things will be fixed using the operating budget.

It is very likely that RUPCO’s Woodstock Commons will experience operating costs exceeding their revenues from rent. Due to the method by which RUPCO’s wholly owned subsidiary and its partners, who will own Woodstock Commons, are allowed to calculate property tax payments, this means that property taxes paid could be zero, or close to it. In any event, It is likely that RUPCO will end up paying the same or possibly even lower taxes on the property than are being generated now from this vacant land.

What would be ideal is for the town to compare RUPCO’s proposal to another affordable housing model. This would be an enlightening exercise for all involved.

No matter whether the Planning Board entertains any other affordable housing proposals or models, it is still important that the Planning Board be made aware of RUPCO’s lack of transparency in the way they have figured their estimated tax payments, and, at the very least, study the details of RUPCO’s estimated operating budget. The town’s income relies on it.

Comment #16:

RUPCO maintains a conflict of interest by being an official county housing advocate to Ulster County residents in need of affordable housing, and at the same time, RUPCO develops, builds, sells, and profits from affordable housing.

Comment #17:

There is no timeline for drilling the geothermal wells, and no sound estimate for the drilling. This drilling could go on five months and be the loudest noise in the project, yet there is no information on either the duration or the noise of the drilling.

There is no timeline for drilling the geothermal wells. In the phase 1 and phase 2 construction lists of tasks, there is no mention of drilling geothermal wells. The wells, all together, constitute over three miles of drilling. The time to do this is simply not factored in to the construction timeline. How many drills will operate at once? Each drill operates at upwards of 80 decibels. If more than one drill operates simultaneously, the sound will be deafening. If only one drill operates at a time, the drilling will take months. Why does nobody care about this scheduling and sound omission? The Planning Board has been alerted to this omission, but chose to ignore it the first time. Here is a second chance.

Comment #18:

It appears that historically, RUPCO has not complied with the requirement of The Wicks Law, which we understand to be a labor-contracting requirement of publically funded housing projects.

Our initial research shows a lack of diversity programs on RUPCO’s prior projects’ workforce, as well as substandard wages. At this point, this is a note of interest, however it is essential that we continue to research RUPCO’s past, present, and future contracting practices.

Comment #19:

RUPCO omitted the Limited Partnership filing receipt and included the LLC filing receipt twice in the FEIS.

The new LLC filing receipt appears twice in the appendices of the FEIS. Where the filing receipt of the LP is supposed to be, the filing receipt of the LLC appears for the second time.

Comment #20:

RUPCO or RUPCO’s consulting engineers falsely reported a commonly used highway design standard in order to make the current too-narrow Playhouse Lane appear to be wide enough to accommodate Woodstock Commons’ traffic.

The FEIS reports that the design standards of a road that will carry the amount of traffic that RUPCO estimates will be on Playhouse Lane are eighteen feet including shoulders. This is wrong. This is false. The width of such a road is eighteen feet, EXCLUDING shoulders.

Why is nobody at RUPCO or on the planning board concerned with this false statement? A letter on this topic was sent to the planning board prior to their acceptance of the FEIS, but they took no interest in it this effort to alert them to plain old false information. And now? We suggest that the planning board become interested in this error, since it is going to matter, sooner or later.

Comment #21:

Kevin O’Connor signed as Manager of RUPCO’s new LLC before this LLC had been created, thereby committing perjury.

Kevin O’Connor signed the Limited Partnership papers, as the Manager of Playhouse and Elwynn Associates, LLC, on February 25^th, 2010, “under penalty of perjury.” The “exist date” of Playhouse and Elwynn Associates, LLC, as you can see on both copies of the LLC filing receipt (included in the FEIS,) is February 26, 2010. Kevin O’Connor, therefore, committed perjury.

RUPCO’s general disregard for legal compliance is shocking. Please consider this in areas other than use of names and dates of signatures. Sloppy is sloppy- it is not confined to unimportant issues.

Comment #22:

RUPCO’s arrogant behavior toward local business is exhibited by its failure to fulfill its contractual obligation with a local small business in Ulster County, causing the business to file a $1,663.50 lien against RUPCO.