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Oswego Mayor and Metropolis Legal professional refute Port’s response to lawsuit | Oswego County

OSWEGO – The city and the Port of Oswego agreed Aug. 9 in state Supreme Court to a temporary order of consent halting construction of the Port’s new granary until a judge can rule further on the issue.

On Aug. 20, the Oswego Port Authority issued a statement on that entire lawsuit challenging the legality of the Port’s granary project.

Here is their entire statement followed by comments from City Attorney Kevin Caraccioli and Mayor William Barlow:

“Today, the Port of Oswego Authority (POA), filed its response in New York State Supreme Court to the lawsuit brought by the city of Oswego.

“The city, though not an ‘involved agency’ was duly notified of plans for development well in advance of the start of any construction. The $15 million project, the Central New York Regional Agriculture Export Center, involving construction of a new warehouse and other upgrades, underwent a required State Environmental Quality Review Act (SEQRA) review beginning in April 2020 and concluding on Sept. 23, 2020. The Port, a New York state governmental agency, acted as lead agency and undertook a coordinated review with the only other involved agency, the NY State Department of Transportation (DOT). The New York State Historic Preservation Office (SHPO) and the New York State Department of Parks, Recreation and Historic Preservation (OPRHP) participated in the review as “interested” parties.

“On or about April 27, the Port provided notice of its intention to act as lead agency. That notice, along with a copy of Part 1 of the Port’s Full Environmental Assessment Form (EAF) went to DOT, and to ‘interested’ agencies which included OPRHP. The City was also provided with its own notice and Part 1 of the Port’s EAF. The Port’s Executive Director also met with the Mayor’s office to discuss this project. In addition, following a July 6, 2020 Port board meeting that revised the scope of the project to concentrate on its first phase, a notice was sent to the City by letter on July 9, 2020 with an amended EAF. To be clear, the city, as an ‘interested agency’ received both the April 27 and July 9 lead agency notices and enclosed EAF Parts 1. The Port received no complaints about the proposed warehouse construction from the city at this time, nor anything else regarding the project.

“The Port received no objections from DOT, SHPO, or OPRHP and issued a negative impact declaration on Sept. 23, 2020. No objection was received to that declaration and the DOT concurred with that declaration. That declaration was then published in the Environmental News Bulletin.

“The city had 4 months after the negative impact declaration to challenge the project. The time to challenge has long since expired.

“The project proceeded in every respect in full compliance with SEQRA. As part of the review process, the Port submitted background materials to SHPO and OPRHP in early May 2020. Among other things, those materials clearly identified the warehouse construction and that it would block certain views of the lighthouse. In no subsequent communications—which included aerial drone photos and a Visual Resource Assessment showing impacts to sensitive sites within the project’s viewshed—did SHPO reference the lighthouse. Even though the materials shared revealed that the warehouse construction would block certain views of the lighthouse. To be clear…its’ analysis was limited to Fort Ontario, which is also the only viewshed of a registered historical resource that the project impacts, and their responses mentioned no potential environmental impact regarding the warehouse construction.

“Revisions to the warehouse design did not warrant further SEQRA action.

“The city, relying upon inaccurate and misleading information, takes issue that the warehouse dimensions have changed since the negative declaration and that these changes had an impact on the ability to view the lighthouse.

“In materials submitted to SHPO in May 2020, the warehouse project, then a dome design, had an expected height of 55 feet. Again, materials shared with SHPO revealed that the dome warehouse construction would block certain views of the lighthouse. The revised design is now slightly over 70 feet tall. An extremely significant fact worth mentioning is that the views that the City references are not impacted any more severely by this increased height. The lighthouse would not have been visible from these angles even if the warehouse was the dome design and 55 feet tall, which is the design that the city made no move to object to at the time. Therefore, the basis for the City’s lawsuit is unfounded and is a frivolous waste of tax-payer funds.

“The city also alleges that the Port’s Board of Directors never approved the change in height. This is also inaccurate. The Port elected to publicly rebid the warehouse construction after its bid for a 55-foot domed structure returned only one bid that was 71 percent over the estimated cost. The rebid on the project was within budget and the design changed from a round dome to a square warehouse in the same footprint as the original plan. The bid was submitted to the Board for approval. The full Board had the information on the rebid well in advance of the meeting on Dec. 7, 2020, and they voted to accept the bid at that meeting.

“The Port took the required “hard look” before concluding that the negative declaration was not impacted by the warehouse construction change, and the Port’s consultants advised the Port that no such change was necessary. The Port also took into consideration that—at that time—there had been no objections from any interested or involved agencies or the public regarding the fact that the warehouse construction would block certain views of the lighthouse and that the changes in size would have no measurable change on those views (they would still be blocked).

“The United States Department of Agriculture (USDA) has jurisdiction over the handling of grain for export. The USDA had already notified the Port before November 2019, that the Port’s license to handle grain exports would be revoked unless certain capital improvements were made to Port facilities. Grain handling and related agricultural products accounts for a substantial part of the Port’s annual operating revenues and employs a number of additional longshoremen. In addition, the Port’s grain handling operations are the most cost-effective method for Central New York farmers to access the market, including the international market, for their grain. Other ports with grain export capacity are more distant, and therefore subject farmers to higher freight costs, which, in-turn, subject the environment to more emissions and adverse impacts from longer truck routes.

“The Central New York Regional Agriculture Export Center Expansion Project is critical to the Port’s vitality because it will enable to the Port to keep its’ grain handling license and give it a competitive edge in attracting more business and jobs in the future.

“A 2018 economic impact study commissioned by the Great Lakes Seaway Partnership documented that in 2017, the Port of Oswego supported 209 jobs, $26.7 million in economic activity, $13.8 million in personal income and local consumption expenditures, and $5.8 million in federal and state tax revenue.

“‘The study reflects the important contributions the Port of Oswego provides to the Great Lakes-St. Lawrence Region,’ said Steven A. Fisher, executive director, American Great Lakes Ports Association. ‘The jobs supported by the maritime industry include not only those located directly on the waterfront—shipyard workers, stevedores, vessel operators, terminal employees, truck drivers and marine pilots—but also grain farmers, construction workers, miners and steelworkers. Many of these jobs would vanish if not for a dynamic maritime industry.’”

Oswego City Attorney Kevin Caraccioli responded as follows:

On the following statement from the Port:

“The City also alleges that the Port’s Board of Directors never approved the change in height. This is also inaccurate. The Port elected to publicly rebid the warehouse construction after its bid for a 55-foot domed structure returned only one bid that was 71 percent over the estimated cost. The rebid on the project was within budget and the design changed from a round dome to a square warehouse in the same footprint as the original plan. The bid was submitted to the Board for approval. The full Board had the information on the rebid well in advance of the meeting on Dec. 7, 2020, and they voted to accept the bid at that meeting.”

Caraccioli: “Completely false. Completely false, and I challenge anybody to find that action in the minutes of the Port board of director meetings from Sept. 23 up to the Dec. 7 meeting. The only thing that’s true in that whole statement is that the board accepted to award a project identified as the grain handling improvement project to Eagle Associates of Cazenovia. But even that agenda item is completely misleading and different from all other items that the Port board of directors was asked to vote on in relation to this project. It doesn’t describe it as Dome 4 construction. It’s completely misleading, and I would say the Port’s board of directors was mislead. There’s no record, no public record available online showing that the Port board of directors in September or even early October of 2020 voted to rebid this project. It simply did not happen. If you read our reply, there is a reply affidavit from Mr. Stevens again saying he read Mr. Scriber’s affidavit, and he maintains very firmly that he was not made aware of the rebid, never shown plans for the rebid, and he resigned from the board prior to the Dec. 7 meeting. So, he didn’t vote on it, but additionally, he never had any knowledge of it. And it certainly was not brought up in a board meeting, and he attended every board meeting from September through the time that he resigned. It just didn’t happen.”

Concerning the Port’s statement:

“The Port also took into consideration that—at that time—there had been no objections from any interested or involved agencies or the public regarding the fact that the warehouse construction would block certain views of the lighthouse and that the changes in size would have no measurable change on those views (they would still be blocked).”

Caraccioli himself had submitted objections to the Port regarding the blocked view of the lighthouse on Nov. 4, 2020, the day before the only public hearing on the Port’s comprehensive plan was held.

“I prepared a pretty detailed statement. I did very directly point out that the lighthouse was going to be impacted. I thought it would be impacted by the 124-foot diameter and 55-foot high dome, at the time. And my only comment was, everybody was concerned with the view of the Fort, but nobody’s looked at the view of the lighthouse from that scenic highway, and there ought to be at least some data that supports that the impact will be minimal or wouldn’t exist, and no such reports have been undertaken.”

“It’s simply false. All of their environmental reviews contemplated – these are all public documents – Dome 4 would be a 124-foot diameter and 55-foot high wooden building. It is true when they rebid the Dome 4 construction, they proposed two additional structures. And keep in mind, the reason that they went out to rebid, according to their legal papers, is because the cost of this 124-foot diameter, 55-foot high dome was grossly over the estimation that their engineers had calculated. So, there is a unilateral decision, without board approval, to rebid the project. And they rebid it with a 142-foot diameter, 69-foot high dome, and the 150 by 150-foot structure that’s up there. However, that structure was measured at 52 feet, eight inches. That’s all in the documents that I received from the Port. If the 124-foot diameter, 55-foot high dome was too expensive, how is a 142-foot diameter, 69-foot high dome going to be less expensive? The steel structure, the 150 by 150, because it’s basically tubed steel, would certainly be less expensive than the larger dome structure. After Sept. 23, the board approves the SEQR, – it’s all in the minutes – there’s no impact, and then they approve the grain handling project. At some point, their papers don’t say exactly when, but at some point they get bids back for Dome 4 and they realize, ‘Oh, it’s going to be too expensive, so we’ve got to go out to rebid.’ So, they go out to rebid, but there’s no public documentation supporting that the board authorized a rebid, or what the size of those structures would be. There was just a unilateral decision made to rebid this project using two completely different buildings, different in size and grossly different in size than what was originally proposed without any environmental review. Their initial environmental review, when it began in June, July of 2020, there’s no documentation that supports anything other than Dome 4 being 124-foot diameter, 55-foot high building. Nothing. They’d have a stronger argument if they had those other alternatives in their plan, but they didn’t. There is a document somewhere in all of this that shows the different options that were considered, and every option for Dome 4, every option, the measurements don’t change, 124-foot diameter, 55-foot high. There’s just no way they did an environmental review of these larger structures. And that’s one basis of our lawsuit.”

Concerning the following from the Port’s response:

“An extremely significant fact worth mentioning is that the views that the city references are not impacted any more severely by this increased height. The lighthouse would not have been visible from these angles even if the warehouse was the dome design and 55 feet tall, which is the design that the city made no move to object to at the time. Therefore, the basis for the City’s lawsuit is unfounded and is a frivolous waste of tax-payer funds.”

Caraccioli: “You can’t object to something that you don’t know about. It’s one thing to know the plan and not say anything about it. But there’s a far different issue when they propose a plan, but then they build something completely different, and we don’t have an opportunity to comment on that. So, that’s where we’re at at this point.”

“The Port’s attorneys are trying to enlarge the image to support an argument that, ‘Well, regardless of what was built, the lighthouse would have been impacted either way, whether it was a big dome or this big warehouse, the steel structure that’s up now.’ But in reality, if you go and take a look, you stand exactly where they’re standing and take a look at it, we now have the benefit of the silo being nearly constructed, and it doesn’t impact at all with the lighthouse. In fact, you can see the lighthouse clearly, there’s no impact there. Just take a look. Basically, what they’re doing, I’m claiming, is that they’re kind of Photoshopping a much larger structure to try to prove that, ‘Regardless of what we were going to do, the lighthouse was going to be blocked, so, it’s really not an issue.’ So, they’ve turned their argument to, ‘forget about what structure we were going to use, the lighthouse was always going to be impacted.’ But yet, there’s no data to support that, and it’s a disingenuous argument.”

The Supreme Court appearance for oral arguments on the city’s lawsuit against the Port, originally scheduled for Sept. 7, has been postponed to Sept. 17, Caraccioli said. It will be held in the Oswego County Courthouse at 25 E. Oneida St. in Oswego.

Oswego Mayor William Barlow spoke in June on the Port’s Executive Director William Scriber’s assertion that Barlow was informed of this project quite some time ago.

“I saw Scriber’s response,” Barlow said at the end of June. “I think it’s very disingenuous from beginning to end. He talks about the mayor of Oswego was briefed on the project in February of 2015. The project I was briefed on was not this specific building, it was the Port’s Comprehensive Plan, which was a 30,000-foot summary of their Comprehensive Plan and multiple buildings and multiple ideas that they had at that time.

“I saw a conceptual rendering two-and-a-half years ago,” Barlow continued “and I haven’t seen anything since. I haven’t heard of any details. I know the port Authority’s public meetings are extremely hard to find. Their meeting minutes are one sentence meeting minutes. They didn’t go through the process most other projects go through because I think they’d find they would have had these issues pop up with the viewshed. I see they don’t have a full board. It’s hard to read, really. I’m not surprised the public and city government was left out in the dark. I think if we weren’t, they knew we wouldn’t have approved of it.”

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