A Response to ABCO

What follows is a selection from my piece “In Response to the Comments, Objections & Questions of the Affiliated Brookhaven Civic Organizations. This document was submitted officially to the Town Board for the public comment section of the Carmans River Watershed Protection and Management Plan.

ABCO submitted their “White Paper”, and what follows is my response.

In Response to the Comments, Objections & Questions

of the Affiliated Brookhaven Civic Organizations.

Introduction:

Developmental pressures on Long Island are a constant force, and there are sound reasons for this. From a socio-economic standpoint, both Suffolk and Nassau are large markets with money to spend, and reside within reasonable distance to New York City. Growth, whether we like it or not, will happen. It is one of the few things on Long Island that is a constant. It is government’s job to ensure that growth happens in a way that both nurtures a positive business climate, as well as protects our natural resources.

The Carmans River Watershed Protection & Management Plan is significant because, as Dr. Lee Koppelman, the chairman of the study group, has stated “The effort in this study was to obtain the maximum protection and enhancement of the River.”[1] From an academic standpoint, the Plan is a masterwork that was crafted by a colloquium of experts in their respective fields, who were supported by a government that was more than willing to listen. It employs old planning tools in a revolutionary way, and aims to change the way the Town of Brookhaven is developed, preserving the delicate balance alluded to above.

Some Civic Groups are opposing the plan. Misinformation concerning the plan is permeating throughout the media, and it is important for the facts to be disseminated from the fiction spread by a group who, quite frankly, is not seeing a good opportunity when it’s presented to them. The Affiliated Brookhaven Civic Organization (ABCO) released their “Draft Carmans Plan Comments- Questions and Objections” to the Brookhaven Town Board on March 29^th, 2011.

It is important to note that the comments are an action of ABCO’s executive board, despite appearing as a representative statement of their total membership’s views. Their comments are not representative of their membership as a whole. The document was never approved by a quorum of members, nor did the general membership of ABCO have any say in the executive board’s comments to the town board.

What follows is a rebuttal of ABCO’s written statements, as written by Richard J. Murdocco, Project Coordinator for the Long Island Pine Barrens Society.

ABCO’s Claim 1:The Findings of the Study Group were Biased

The Affiliated Brookhaven Civic Organization (ABCO) said that “The process associated with the development of the Plan was flawed by both the composition of the Study Group which included five (5) members of the Long Island Builders Institute (LIBI), but not a single civic representative and by a pattern of backroom deals in which the developers, other special interests and government representatives met in violation of the Open Meetings Law, to decide the most important elements of the plan as well as the ultimate outcome of the Study.”[2]

ABCO has also stated that “The sixteen (16) member Study Group, which includes five (5) representatives from LIBI and not a single civic representative, reveals an intent to pre-determine the outcome of the study.”[3]

The Facts:

There were four (4) members of LIBI in the study group, not five (5) as ABCO claimed. When Mitchell Pally, the new CEO of LIBI started attending meetings, one (1) or more of the other developers in the group stopped attending. Pelly Damianos, of the Damianos Realty Group was in attendance, but not affiliated with LIBI, as ABCO had incorrectly claimed.[4] Since the study group was comprised of experts in their field, the prospect of LIBI, an association of building professionals that has been around since 1941[5], not being represented by its new leader is absurd.

ABCO’s lumping of environmentalists into the “special interests” group is equally absurd. Environmentalists cannot be classified as a special interest, for the benefits environmentalists advocate for accrue to the general public. Clean air and water are not goods that small, elite groups benefit from alone, and it was wrong for ABCO to characterize the environmental advocates as such.

Next, the Carmans River Study Group made their recommendations not based upon ideology or backroom deals, but on scientific findings from a Technical Advisory Committee. This Committee consisted of scientists and experts in their field [6], and the TAC produced multiple hydro-geologic studies on which the plan’s recommendations were based.

ABCO, in their discussion of the composition of the study group, neglected to mention that the group consisted of four (4) members of LIBI, one (1) realty group member, six (6) Government Officials and five (5) Environmentalists. Residents and others were openly invited to attend, and most importantly, participate in the Study Group meetings. MaryAnn Johnston, President of ABCO, and various other civic group representatives are credited in the Plan’s “Acknowledgements” section[7].

The statement of pre-determination is erroneous, especially after one looks at the study group’s minutes. According to the minutes, Dr. Koppelman has stated that “the TAC doesn’t make policy- their role is to make scientific recommendations to the Study Group” and that Dr. Koppelman “underscored the open process both committees (the TAC included) will follow.”[8]

ABCO’s Claim 2: The Open Meetings Law was Violated

ABCO has made claims that “The process of preparing the plan included numerous meetings between government officials, developers and special interests from the study group outside of the public meeting process in violation of the Open Meetings Law.” ABCO has also stated that “…the recommendations of the Plan clearly reflect this inherent bias in both the composition of the Study Group and the process of closed-door meetings, resulting in the lop-sided Transfer of Development Rights proposal …”[9]

The Facts:

Open Meetings Law applies to the meeting of Public Bodies, which is defined below:

First, the Open Meetings Law applies to meeting of public bodies, and §102(2) of the Law defines the phrase “public body” to mean:
“…any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body.”[10]

As mentioned above, a quorum is required for a public body. A quorum is defined as follows:

“…a quorum is a majority of the total membership of a public body…”[11]

The “closed door” meetings that ABCO claimed to have happened are not applicable to the Open Meetings Law, because the only time that the Open Meetings Law applies is when a quorum is present at a meeting of public officials.[12] These off-site meetings involved only stakeholders and not government decision-makers at all. The off-site meetings were held with 4 or 5 Study Group member’s present, well below the numbers required for a quorum. Moreover, the Study Group was not a decision-making body but merely a committee charged with making recommendations to the Brookhaven Town board. Thus, there was no violation of the Opens Meeting Law and ABCO leaders knew that and made the false charge anyway.

ABCO’s Claim 3: The Civic Associations were kept in the Dark

ABCO quoted Councilwoman Connie Kepert as stating “No longer do developers determine a community’s future; instead the community tells the developer and the Town of Brookhaven how they would like to see their neighborhoods built.”[13] ABCO goes on to say “Permitting residents to participate and guide a planning process such as the Gordon Heights Plan while excluding residents from participation in the process to protect the Carmans River Watershed is arbitrary, inconsistent with good planning principles and inconsistent with the spirit and intent of Town Law.”[14]

The Facts:

ABCO has also stated that “Town Law states the ‘participation of citizens in an open, responsible and flexible planning process is essential to the designing of the optimum town comprehensive plan’”.[15] ABCO is correct in stating that in respect to the process of comprehensive planning, the standard practice is to consider a plan upon community consensus. However, it is essential to note that the Carmans River Protection Plan is NOT a community-based plan, but rather a scientific and environmental protection plan. As Dr. Koppelman (the author of Suffolk County’s 208 Study, which was the first national attempt at measuring water quality standards) has stated:

“Normal, comprehensive planning, community planning, per se, which requires vision, does not necessarily require science. However as soon as the planners are moving into the area of ‘environment’, I don’t care what the environmental study is, whether it’s preservation of the Pine Barrens, preservation of an estuary, preservation of a river corridor, it has to be based on the best possible science available.”[16]

The preceding quote outlines the distinction between the two planning processes. To say that the civic community was not engaged by the study group can be refuted by looking to the both the Plan’s Appendices C and D, which lists the Technical Advisory Committee’s, as well as the Study Group minutes.

Moreover, the civic community was free to present any recommendations they wanted to directly to the decision-making body for the proposed plan, the Brookhaven Town Board. Many groups and individuals did so, including ABCO.

Also for Consideration:

ABCO’s president MaryAnn Johnston attended five (5) of the TAC meetings (October 22^nd, 2010, October 27^th, 2010, November 10^th, 2010, November 24^th, 2010, December 15^th, 2010).

ABCO’s president MaryAnn Johnston attended six (6) of the Study Group meetings (October 27^th, 2010 November 17^th, 2010, November 24^th, 2010, December 15^th, 2010, January 19^th, 2011, February 4^th, 2011).[17]

ABCO’s Claim 4: The Timeline was Arbitrary

ABCO states that the ninety (90) and eventually, the one hundred and twenty (120) day time period in which the plan was formed “resulted in a plan that lacks much of the basic factual and scientific information needed to properly analyze the benefits and potential impacts of the Plan.”[18]

The Facts:

According to Johan McConnell, president of the South Yaphank Civic Association, the Plan “was done in 100 days and they met once a week. Normally town committees meet once a month. They had 13 meetings, which was the equivalent to a year’s study. Anyone who attended the meetings and wanted their report put in, they could be put in”. [19] This statement summarizes the timeline relative to other studies.

ABCO Claim 5: The Plan is lacking Background Information

ABCO also has stated that “The Plan fails to provide the type of good information needed to properly evaluate any policy options.”[20] This includes information like “the number of parcels in the study area” and “the square footage of commercial space within the Study Area”.

The Facts:

The Carmans Plan has a table entitled “Land Use within Baseflow Contributing Areas to Carmans River” that can be found on page 37 of the plan. On page 38 there are tables that highlight land use in both the groundwater contributing area and surface flow area. Page 39 of the Plan has a table on zoning in the contributing area, and page 40 has the zoning for the surface flow area.

ABCO Claim 6: The Plan is lacking Legible Maps

ABCO states that “The Maps contained within the Plan are at a scale that is too difficult to read; fail to provide needed information and are plagued by so many errors as to call into question the reliability of any of the information shown.”[21]

The Facts:

ABCO is correct in saying that the printed versions are difficult to read. However, the clarity issue with the maps can be resolved. The Carmans Plan is available online on the Town of Brookhaven’s website, where it can be downloaded in PDF form. The PDF format allows for ample zooming at maximum resolution. The issue of misread maps due to their differing scale is mentioned again by ABCO on page 6 of their comments in regards to Maps 13 and 14 within the plan, but the same answer applies to this issue as well.

ABCO Claim 7: “Analysis of the Proposed Expansion of the Core is Impossible[22]”

The Facts:

ABCO has claimed that it is impossible to understand what lands are going to be in the Pine Barrens Core. The Carmans River Watershed Protection and Management Plan powerpoint presentation highlights this issue by explicitly stating that on slide 2, under the subheading Accomplishments of the Plan that the Plan “ Expands the Pine Barrens Core area to create a Preservation Zone containing all land within the 0-2 year time of travel and all residential land in the 2-5 year time of travel.”[23] The powerpoint also states that: “The Pine Barrens Core will expand to include:

v All properties within the 0 to 2 year groundwater contributing areas as well as identified residential properties within the 2 to 5 year groundwater contributing area, except for the developed areas in the hamlet of Yaphank and east of River Road in Shirley.

v Properties that have been recommended to be worthy for preservation, including those that may lie outside of the 0 to 5 year groundwater contributing area.

v Other publicly owned properties that have been acquired since the Pine Barren Boundaries were established.”[24]

Actual metes and bounds are being prepared for the required state legislation. This follows the precedent set fourth by the original Pine Barrens statute.

ABCO Claim 8: “The Land Use categories on Page 37 do not match the Land Use categories on page 38”[25]

The Facts:

The charts on both pages 37-38 are for quick looks into the existing land uses in both the groundwater and surface water contributing areas. Appendix B of the plan has detailed (and matching) land use maps.

ABCO Claim 9: “Map 4 Surface Flow Contributing Area Land User does not match Map 3 Land Use for same parcels”[26]

The Facts:

These maps are of different areas, at different scales, within the study area. On Map 3, 1 inch equals 1,500 feet, and highlights the land use in the areas between Middle Country Road (NYS 25) and the Long Island Expressway. On Map 4, 1 inch equals 700 feet, and highlights the area north of Middle Country Road.

ABCO Claim 10: The Nitrogen Standards are Flawed, The Plan was Unscientific

According to ABCO, the nitrogen standards in the plan were “made because ‘it’s not just science; its economics too.’ And finally, that the cost of meeting the 2.5 mg/L standard would be ‘too expensive’.[27] In a bold declaration, ABCO said that “Unfortunately, the Plan fails to contain scientific support for many of its recommendations.”[28]

The Facts:

According to Recommendation 9 of the Carmans River Plan on page 67:

The nitrate standard should be 2.5 mg/l of nitrate at the property lines for projects that meet the criteria for Development of Regional Significance (DRS) designations as defined in the Central Pine Barrens Comprehensive Land Use Plan.

The nitrate-nitrogen standard should be 4.5 mg/l of nitrate at the property lines for projects that require a treatment system, as per Article 6 of the Suffolk County Department of Health Services code or best practical technology as accepted.[29]

ABCO’s claim that the plan lacks scientific support is false. The Technical Advisory Committee, was comprised of experts from their respective scientific fields, who were from world renowned organizations such as USGS, SCWA and SUNY Stony Brook. Advanced groundwater model simulations conducted by Camp Dresser & McKee (CDM), which is “a leading consulting, engineering, construction, and operations firm of more than 4,500 professionals working around the world”[30] provided the groundwater models in which the plan was based upon.

ABCO Claim 11: Mixed-Use will exacerbate sprawl

ABCO stated that “…the lop-sided Transfer of Development Rights proposal permitting not a 1 to 1 ratio, but a minimum of 3.5 to 12 to 1 ratio; requiring the potential rezoning of more than 10,000 acres within the rest of the town.”[31] ABCO representatives have also warned that some 120,000 new units of housing can be expected.

ABCO also claims that “the Towns zoning patterns for commercial and industrial development have created the sprawl that exists today”[32]

The Facts:

The ratio that ABCO has used is false. The Carmans Plan expresses very clearly the TDR ratio under the section entitled “Redemption of Transfer of Development Rights (TDR)”:

The Town of Brookhaven may retain and sell PBCs from privately owned properties in the Core Expansion Area that it acquires upon a demonstration that the Town of Brookhaven will be in compliance with Chapter 6 of the Pine Barrens Plan, including the 1:1 sending area to receiving area requirement.”[33]

Current zoning once encouraged sprawl, but it has been the Town’s, as well as Suffolk County’s initiative, to repurpose the outdated commercial corridors into Mixed-use developments. Arterial roads are the places to increase density, due to their existing infrastructure. Suffolk County has issued a host of planning studies that encourage this idea, dating back to at 2009.[34] The Long Island Regional Planning Board has encouraged the idea of “corridors to clusters”, employing similar ideas to the Carmans Plan since 1965.[35] It is common in planning to employ “clustering” for residential housing and mixed-use projects, in order to avoid the detrimental impacts of sprawl.

The transfer of development rights (TDRs) concept is not new. However, the standardized application of the TDR program that the Carmans Plan advances is revolutionary. The receiving areas that the Study proposed (placing Multi-Family Housing Units along commercial corridors throughout the Town of Brookhaven) dates as far back as to the First Regional Comprehensive Plan, which was drafted in 1964 by Suffolk County. The ideological foundation of this plan was to cluster development in downtowns, and connect them through corridors across Long Island. The ideological foundation of the TDRs within the Carmans River Plan dates from a 1981 study of the River, which was already being threatened by development at that time.[36]

The Plan’s genius is that it aims to end the free giveaways in density increases that town government has given to developers in the past, and instead, sets a standardized and codified template for growth. In the past, the purchase of development rights was limited because the market for the rights didn’t exist. Why would a developer pay additional costs to develop a parcel, if instead he or she could go to another location and get all the density they want for free? The Carmans Plan aims to correct this practice through the mandatory purchase of development rights in the Carmans watershed area.

The number of units permitted in any application is limited by a scorecard of site attributes, but cannot exceed 9 units per acre. Though ABCO knows that their claim of 12 units is false, they continue to wrongly assert this position. The Carmans Plan will allow for the construction of much-needed housing in the $225,000 price range, in current dollars. Most of the multi-family housing will be built in downtowns, areas that planners, as well as previous studies, have agreed that this is where these MF units should go. The average density is expected to be 5.5 units per acre, well below what was previously contemplated for multi-family housing in the Town. This would produce a tiny fraction of the 120,000 units ABCO unjustly frightens the public with.

Private property rights guarantee that additional development is coming to Brookhaven. It is better to prepare for it using a revolutionary standardized system than to take a “Wait and See” approach.

In Closing: ABCO Advocates for Transparency, Succeeds in Hypocrisy

ABCO’s comments end with a series of recommendations, which are preceded by the statement:

ABCO and its members request that the Town provide them with the fundamental right to determine the future of their communities[37].

This is an interesting proclamation, especially considering that ABCO’s executive board acted unilaterally in presenting its policy position regarding the Carmans River Plan. ABCO says that it is fighting for a “… open, responsible and flexible planning process…”[38], yet they did not provide their own members the same “open and flexible” process they demand.

MaryAnn Johnston, and the executive board that serves her, acted without the expressed consent and knowledge of ABCO’s diverse civic membership. The end result is a potentially unrepresentative and vocal minority who are attempting to de-legitimize the Carmans Plan under the guise of being the singular representative of the Town of Brookhaven’s civic community.

Finally, since all the development to be transferred was deliberately designed to land entirely outside of residential communities, the “fundamental right to determine the future of their communities” seems spurious, at best.

We continue to urge anyone who has a proposal they think would improve the Carmans River Plan, to advance them to their Town Council Member for consideration as the plan continues through the open review and approval process.

[1] The Carmans River Watershed Protection and Management Plan, Preface

[2] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 1

[3] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2

[4] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2

[5] http://www.libi.org/about-us/mission-statement/, accessed on April 4^th, 2011

[6] Appendix B, The Carmans River Watershed Protection and Management Plan

[7] Acknowledgements, The Carmans River Watershed Protection and Management Plan

[8] Minutes from the Carmans River Study Group, October 27^th, 2010 The Carmans River Watershed Protection and Management Plan

[9] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pages. 2 to 3

[10] Opinion Number 2198, Committee of Open Meetings Law http://www.dos.state.ny.us/coog/otext/o2198.htm accessed April 6th 2011

[11] Opinion Number 2198, Committee of Open Meetings Law http://www.dos.state.ny.us/coog/otext/o2198.htm accessed April 6th 2011

[12] Committee on Open Government

[13] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2

[14] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2

[15] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2

[16] The Long Island Pine Barrens TV Show: Carmans River Implementation, April 2011, Interview with Dr. Lee Koppelman and Kevin McDonald.

[17] Appendices C and D, The Carmans River Watershed Protection and Management Plan

[18] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 3

[19] A Plan Progresses, Linda Leuzzi, The Long Island Advance, March 31^st, 2011, pg. 10

[20] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 4

[21] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 5

[22] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 5

[23] The Carmans River Watershed Protection and Management Plan Powerpoint, Slide 2, Accomplishments, February 9^th, 2011

[24] The Carmans River Watershed Protection and Management Plan Powerpoint, Slide 4, Accomplishments, February 9^th, 2011

[25] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 5

[26] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 6

[27] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 7

[28] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 6

[29] The Carmans River Watershed Protection and Management Plan, Recommendation 9, pg. 67

[30] http://www.cdm.com/en-US/Discover-CDM/About-Us.aspx , accessed April 5th, 2011

[31] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 3

[32] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 9

[33] The Carmans River Watershed Protection and Management Plan, Recommendation 7, pg. 66

[34] Sunrise Highway Corridor Study, August 2009

[35] First Comprehensive Plan for Nassau and Suffolk Counties, LIRPB, 1965

[36] Carmans River Area Management Plan, Town of Brookhaven, December 1981

[37] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 10

[38] Affiliated Brookhaven Civic Organizations INC. Comments, Questions and Objections Draft Carmans River Watershed Management and Preservation Plan, pg. 2