128- Empire State Law

Here, below, is some New York State Law.  It says that if an entity like RUPCO wants the town to extend the water district (since RUPCO property is not in the water district, and DEC declared RUPCO property OUT of the water district according to state law,) the entity (RUPCO) has to petition the Town Board, and then the Town Board has to vote yes or no. This is not part of SEQRA.  This is not under DEC, except that DEC declared the property out of the district.  This is just plain state law. Woodstock Town Attorney does not seem to understand that DEC's jurisdiction over this water system extension is not the ONLY state jurisdiction in existence.  There are many different jurisdictions, and they coexist and overlap.  Federal, state, local.  Water, historic preservation, health, etc.  All of these have different standards and their own processes.Town Attorney Futerfas was mistaken in writing that RUPCO's land was in the water district.  He retracted the citation of non-existent law that supported the "in the district" opinion he held.  Now, he has no reason to claim the property is in the district, yet he refuses to contend with this reality.  The property is outside the district, and that means the water district must be extended. (DEC wrote that in a letter to Town of Woodstock on March 9, 2011.)  And the following New York State law, requiring RUPCO to petition the Town Board for inclusion in/extension of the district, and a Town Board vote, is the required process.  This means that Woodstock Town Board has discretion in the decision to hook up RUPCO to town water. 

Now, isn't that rather simple?  I think it is, but Futerfas would have to admit a really big mistake if he agreed with me, in fact that "little" error he made and has since corrected is so central to his entire argument that the town's role is ministerial, that if you follow it to its logical conclusion, his whole position unravels.  Rather than have that happen, Futerfas made a motion to dismiss our second Article 78 petition, claiming that everything the Town Board does with regard to RUPCO and water is to be ministerial.  Well, that would be true, maybe, if the property were in the water district, but since it's not, the (below) state law applies.

Remember at the Oct. 5, 2010 Town Board meeting, (the one with the banjo and the singing,) RUPCO's attorney Mike Moriello stood there and said that RUPCO did not need to petition the town board for inclusion in/extension of the water district because, he claimed, the land was IN already.  Well, DEC says the land is OUTSIDE the water district. Therefore, let RUPCO petition the Town Board for inclusion in and extension of the water district, and then let the Town Board vote on it.  In Futerfas’ motion to dismiss, he never touches the in versus out of the district conflict.  He is pretending there isn’t one!

 I suggest Town of Woodstock look over this law and get some legal advice on it.  But don't use Futerfas, for he is busy covering his own backside, not the town's.

2010 New York Code
TWN - Town
Article 12 - (190 - 208-B) DISTRICT AND SPECIAL IMPROVEMENTS 

§ 190. Establishment or extension of improvement 

districts. Upon a petition as hereinafter  provided,  

the  town  board  of  any  town  may
  establish or extend in said town a sewer, drainage, water, water quality
  treatment,  park,  public parking, lighting, snow removal, water supply,
  sidewalk, a fallout shelter district or  refuse  and  garbage  district,
  aquatic  plant  growth  control district, ambulance district, and in any
  town bordering upon or containing within its  boundaries  any  navigable
  waters  of  this  state,  a  harbor  improvement district, a public dock
  district, or beach erosion control district, and provide improvements or
  services, or both, in any such district, wholly at the  expense  of  the
  district;  but no water supply district shall be established or extended
  to include lands situate within the boundaries of a water  district.  No
  such  district  shall  be  established  or  extended  in a city 

[Woodstock is not a city] or in an incorporated village 

[Woodstock is not an incorporated village] 

provided, however, that  such  a  district  may  be
  established  or extended wholly or partly within an incorporated village
  on consent of the  village  expressed  in  a  local  law,  ordinance  or
  resolution,   subject   to   a  referendum  on  petition  under  section
  twenty-four of the municipal home rule law or  a  permissive  referendum
  under  article  nine of the village law, as the case may be, and except,
  in the case of a water quality  treatment  district,  on  consent  of  a
  village  expressed  in  a  local  law  or  by resolution of the board of
  trustees and not subject to any referendum.

§  191.  Petition. Except as otherwise provided in the case of a water
  storage and distribution district, water quality treatment  district  or
  sewage  disposal  district,  a  petition  for  the  establishment or the
  extension of an improvement district shall be signed by  the  owners  of
  taxable  real  property  situate  in  the proposed district or extension
  thereof, owning in the aggregate  at  least  one-half  of  the  assessed
  valuation  of  all the taxable real property of the proposed district or
  extension thereof, as shown upon the latest completed assessment-roll of
  said town; provided, however, that if there be any resident owners,  the
  petition  shall include the signatures of resident owners owning taxable
  real property aggregating at least one-half of the assessed valuation of
  all the taxable real property of  the  proposed  district  or  extension
  owned   by   resident   owners,   according   to  the  latest  completed
  assessment-roll. If a portion only of  a  parcel  of  such  real  estate
  appearing  upon  the  assessment-roll  is  situate  within  the proposed
  district or extension thereof, then the town  board  may  determine  the
  relative  value  of  the  part  thereof  within the proposed district or
  extension thereof, based upon the valuation of the entire parcel as  the
  same  appears upon the assessment-roll. Such petition shall describe the
  boundaries of the proposed district or extension in a manner  sufficient
  to  identify  the lands included therein as in a deed of conveyance, and
  shall be signed by the petitioners, and acknowledged or  proved  in  the
  same  manner  as  a  deed to be recorded, or authenticated in the manner
  provided by the  election  law  for  the  authentication  of  nominating
  petitions.     If  such  petition  shall  request  the  construction  or
  acquisition of  an  improvement,  it  shall  state  the  maximum  amount
  proposed  to be expended therefor. If the petition shall not request the
  construction or acquisition of an  improvement  but  shall  propose  the
  performance  or  supplying of certain services, it may state the maximum
  amount to be  expended  annually  for  such  services.  In  addition,  a
  petition  for the establishment or extension of a park or public parking
  district shall describe the property proposed to  be  acquired  for  the
  purposes thereof.

127- "Notice of Incomplete Application"

RUPCO's application to DEC for water hookup received a "Notice of Incomplete Application" response. Are we surprised?

No.

First of all, RUPCO did not specify whether the Town of Woodstock was applying for an extension of the water district OR for service to the housing project as an out-of-district user. This lack of specification is a product of RUPCO's feeling that no application is really necessary at all. They just want what they want. More about these two choices (and their consequences) later.

DEC specified several things RUPCO/Woodstock need to send in. One of those things is a map delineating the NEW water district boundaries, if application is for extension of water district.

DEC told RUPCO that its previous application, which I saw, and was basically a fifteen-pounder, meaning it was a binder of papers weighing about 15 pounds, was not succinct enough. Ya think so? RUPCO likes to bury information in a lot of fluff. Apparently DEC will brook no such nonsense.

DEC noted that Woodstock's Water Conservation Program form is not complete. Want to know why? Because Woodstock has no water conservation program. Oh, wait a minute. Yes it does. The form was filled out on Wednesday, so technically I guess Woodstock has had a water conservation program for two days. Don't you feel better now? Me neither.

The most important recent information from DEC is the notice appearing in yesterday's Woodstock Times (page 22.) This notice invites comments on this project, as regards several DEC-related issues, including extension of the water district.

If you have a comment on Woodstock Commons application to join Woodstock Water District, send it to:

Rebecca Crist, NYSDEC
21 South Putt Corners Rd
New Paltz, NY 12561-1620

If you want to go to the DEC office and view the application materials, make an appointment with Rebecca Crist (845-256-3014.) This number appears in the announcement as well.

126- Woodstock Water Cartoon Time

Thanks to Michael Veitch for this.

125- BeGuyling Study

Guy Thomas Kempe has produced a "study" that is designed to show that RUPCO's land parcel is entitled to town water, even though the building site is not in the water district. I produce the body of Guy's study, without all of the land parcel and tax information, and I comment in red throughout the text.


Report of Established Precedents Concerning Town of Woodstock Water System Boundary, Bisected Water District Properties & Tax Parcels, Pertaining to Woodstock Commons

Excerpts Concerning Municipal Water from Lead Agency Finding Statement

According to the adopted Finding Statement (7/01/2010) of the Woodstock Planning Board, lead agency for the environmental review for Woodstock Commons, “the EIS addresses as follows the probable effects of the proposed development on Municipal and Franchise Utilities:”

“1. Portions of the Project Site lie within both the Woodstock Town Water District and the Woodstock Town Hamlet Sewer District. This circumstance provides the owner of the Project Site legal access to both municipal water and municipal sewer facilities subject to Town Board approval.” The sewer law provides partially included parcels hamlet sewer access.  There is no corresponding law for the town water district.  Grouping the land parcel as partially in "both" water and sewer districts is pointless.  There are separate laws for water and sewer, so no grouping has any relevance.

“2. RUPCO intends to meet as an in-district user the water supply and sanitary sewage requirements of Woodstock Commons by installing on-site improvements and off-site connections to the municipal infrastructure.” Who cares what RUPCO's "intentions" are if they are not supported by law?

“3. The Woodstock Water District operates a Public Water Supply (NY PWS No. 5503394) and serves 743 customers (i.e. metered connections) within the hamlet of Woodstock and extending from the vicinity of Bearsville on its west to The Route 375 vicinity on its east. Portions of Project Site are located within the Water District and Woodstock Commons will utilize the Water District as its sole potable water supply source.” Again, who cares what RUPCO's "intentions" are if they are not supported by law?

“The Water District secures its water supply from drilled gravel wells in the western portion of the District near the Saw Kill. As indicated in the Engineer’s Report these wells have a reported estimated combined capacity of 575 gallons per minute (GPM) [Untrue.  This was the design capacity, never tested, and never claimed.]  and estimated total safe yield of 400 GPM [Yes, in 1985.] . On the basis of this estimated total safe yield of 400 GPM and based upon 12 hours,
or 720 minutes, of well pumping per day, the estimated daily safe yield of the District’s wells is reported to be 288,000 GPD.” It does not take an engineer to point out the difference between "design capacity" and "reliable capacity." This difference is purely one of language, manipulating it to change the meaning. RUPCO changed the meaning in the water superintendent's letter, and nobody noticed... for a while. RUPCO, in the DEIS, wrote that former Water and Sewer Superintendent Kevin Hunter, in a letter about town water and sewer capacity, "indicated the safe yield of the District's wells to be about 300,000 GPD." This is a quote from DEIS Section 3.9.1.  Now let us look at the actual letter written by Kevin Hunter.  It says: "The Town's water system was designed to produce 300,000 per day."  See, taking the phrase "designed to produce" and rewriting it as "the safe yield" when the last time the water was studies is 24 years prior to the statement, now 26 years ago, is fundamentally dishonest. 

“The estimated daily safe yield of 288,000 GPD is more than twice the Water District’s reported 2005 estimated average demand of approximately 140,000 gallons per day (GPD), as set forth in the most recent annual drinking water quality statement (2005) for the District.” Again, 288,000 is not the safe yield. It is RUPCO's lie.


“The Project Site lies within the only area of the Town, the hamlet of Woodstock, within which municipal water and/or municipal sewer facilities have been made available through the creation and operation of special utility districts to accommodate the residential, commercial, civic and institutional uses either existing or proposed to be located there in accordance with Town and County land use plans and related land use and development regulations.” This does not mean that all parcels in the hamlet have legal access to these utilities.  More misleading language.

“The Woodstock Commons development will be served by the Woodstock Water District including the District’s water supply wells located near Bearsville and not draw upon the groundwater resources of the Project Site for its domestic water supply. Provision of domestic water service to Woodstock Commons will increase average daily water demand within the
2
District by 8.2% to 162,500 GPD and consume only 9.1% of the District’s safe yield residual supply of 138,000 GPD.” Again, this statement assumes that Woodstock is capable of producing the quantity of water that individual well tests showed in 1985.  No simultaneous well tests were conducted, and no tests have been conducted since 1985. RUPCO simply misleads, lies, and distorts facts at every turn.


Now, a word about "precedent." Guy Thomas Kempe uses this word in the title of his "study," and then once again when showing properties bisected by the water district boundary.  However, Guy Thomas Kempe fails to discuss the issue of precedent.  


Guy Thomas Kempe is completely off base categorizing activities that occurred prior to the creation of DEC as “precedent.”  Precedent is a practice that can be cited when all other conditions and laws are the same.  I could cite precedent that says that it is acceptable for women to not be allowed to vote, because it was precedent for so long and for so many women.  However, since that time, women have been granted the right to vote, and so that particular precedent is irrelevant.  It's hard to believe that I have to explain this, but apparently it is necessary...

Above all else, there IS no town law that says properties bisected by the water district automatically are entitled to service.  Somebody on the RUPCO team appears to have invented that law.  It does not matter whether the Planning Board slept through the process, the citation is simply incorrect, and even Woodstock Town Attorney Futerfas said so, finally, officially in a letter to DEC, Feb. 2011.

But more about the particulars of the properties in Woodstock that Guy Thomas Kempe says are partially in the water district, and enjoy water service:

Kempe cites all these properties that are quite old, let’s say ranch houses for the most part, built in the 1950’s or 60’s, before the creation of the DEC, and so exempt from DEC rules.  I believe the DEC and many of its rules were created by passage of the Environmental Conservation Law of 1970.  Some of these houses joining the water district could have occurred with the expansion of the capacity in 1965, when the district approximately doubled in capacity.  I do not know what laws governed district expansion then, but Kempe certainly does not report any such laws, which means he does not know what they are, OR they state that these additions were permitted.

As for applications to extend the district in the 1970’s, I am not sure Guy Thomas Kempe is equipped to know whether the water district had approved extensions to partially included districts, in the 1970’s, or on a case by case basis.  He is completely off base in trying to apply a 2005 town water law retroactively to activities about which nobody seems to know any details, that occurred in the 1970’s or earlier.   He also failed to cite town water law from the period in question, meaning the 1970’s until passage of Town water law of 2005.

124- Water Water Water (and I don't mean this rain)

Hello.  I have been busy doing research.  Here is some of what has been happening:

 A. 

I found out that Town of Woodstock gave RUPCO the go-ahead to send the applications to DEC, even though DEC required that the applicant be the Town of Woodstock.  


The town, and also the Woodstock Times, has been writing about a "Joint Application," however this is the name of the application, not a description of an application with several applicants.  The application itself, if they had bothered to look at it, is designed to be sent to several agencies, for several purposes.  The functions and the recipients are the "joint" parties.  The applicant is supposed to be singular: Town of Woodstock.


To be fair, RUPCO could have prepared the documents, in the same way that an accountant prepares tax returns, in the name of the filer. However, RUPCO applied in its own name.


So, here is an example of what DEC got: In the section that was supposed to describe Woodstock's water supply sources, meaning the names, (and instructions even say to name each well,) RUPCO writes that ITS water source is Woodstock's water system!!  ("We'll turn on the tap. That's where our water is coming from.") Not really what DEC had in mind...  I have a feeling this application ain't gonna fly with DEC, in the application's current form.

 B. 

The new water numbers are here!! 2010 numbers.  Remember how in 2009, 32% of the district's pumped water was lost, and an acceptable percentage is around 10%?  Remember how Jeff Moran said last September 14, that there was a broken altitude meter on the Yerry Hill Tank and that it had been repaired finally around the first of the year (that means Jan. 1, 2010)? I remember because I just watched the Town Board Meeting from that September evening.  So, given this explanation, we should see our water loss back down to about 10%, right?


Uh-oh.  2010 losses are 24.4%  Now, remember that we had a two months long water emergency.  This means that water consumption was quite a bit lower than in 2009 (actually nearly 7 million gallons, or 12% less.)  However, we still lost 12 million gallons out of the 49 million gallons pumped.  Compare that to 2008, when we lost 4.3 million gallons out of 43 million gallons pumped.  Now that the Yerry Hill tank problem cannot be factored in, and the leak detection equipment is working, where IS the missing 15%, or 8 million gallons??  (I'm talking about 8 million gallons OTHER THAN the expected 10% loss to fighting fires, flushing hydrants, etc.)


Looks to me like our water district is terribly mismanaged.


 C. 

 If you look at all of this from a water district customer's perspective, we see that during the SEQRA process, the planning board did not study the water district capacity.  Neither did the town board or the planner or the town attorney or the water superintendent.  And after the SEQRA process, RUPCO and town attorney said it was too late.  This leaves the water district customer with the absence of management of his/her district in the form of studying whether there is sufficient capacity and pressure to add RUPCO's demand.


Now, RUPCO did do the analysis, they say.  Fine, RUPCO is entitled to write whatever they like. RUPCO used the DESIGN CAPACITY instead of the actual capacity.  Ours is a sixty year old water system.  There is decay, mismanagement, leaks, expansion after expansion, and it is clear that design capacity is not real capacity.  However, the town did not challenge RUPCO.  Even Kevin Hunter, the then Water and Sewer Superintendent, wrote a one page letter stating that the water system was designed to pump 300,000 gallons per day.  He did not write that this was current capacity.  In fact, he did not state what current capacity was, in 2007.  Whatever it WAS in 2007, it certainly is less now, since now we had a water emergency with demand as low as about 150,000 gallons per day, when no other town had water emergencies.


So, what's a group of water district customers to do? How about bring an Article 78 petition against Town of Woodstock, joining RUPCO and EVK Realty, LLC, (the current landowner,) to challenge town's mismanagement of water district over several years, and triggered by the consent to allow RUPCO to apply to DEC for water hookup???


Great idea, we thought.  So we did that.  Seven petitioners filed the petition on Wednesday. 
By the way, if you are a property owner in the Woodstock Water District, and also live in your property, and you feel left out, would like the town to know that you agree with us and will not stand for this mismanagement, and would like to join this petition, please email me: robinsegal@rocketmail.com


More later.
Bye.