Oneida County zoning denies CUP for Cassian wellness center

On a 5-0 vote, the Oneida County planning and development committee denied last week a conditional use permit application (CUP) by the Great Lakes Inter-Tribal Council (GLITC) to construct an adolescent recovery and wellness center in the town of Cassian.

Zoning committee chairman Scott Holewinski made the motion to deny, based on the failure of GLITC to meet the general standards for approval of a CUP application.

The committee unanimously agreed that the applicant did not meet two of the 10 standards considered, in particular failing to provide substantial evidence that the facility would not lower property values in the area and failing to meet the town’s comprehensive land use plan. The committee unanimously agreed that the applicant did provide sufficient evidence to meet three of the 10 standards.

Beyond those five standards, there were five split decisions. Holewinski and supervisor Mike Roach were the most adamant down the line that the application failed, while supervisors Tommy Ryden and Bob Almekinder took a more conciliatory stance, saying those five standards could be met, albeit some with conditions, and supervisor Mike Timmons providing the swing vote (three against GLITC and two with).

Prior to deliberation, Cassian town chairwoman Patty Francoeur reiterated the town’s position that the committee had a legal right to deny the CUP, and she complained about a lack of communication with GLITC.

“The town has ordinances, and approval from the town is needed for utilities, and yet we’ve not received any kind of previous communication,” Francoeur said. “We are a rural community. We understand growth is inevitable, but we want the right to say where and what that should be and how it will impact not only our town but our neighboring communities.”

A discussion about invoking sovereign immunity as a way to avoid abiding by CUP conditions also ensued, with GLITC representatives adamant that the conditions would be followed, that GLITC was bound by state and local laws to follow them, and that none of the 12 tribal nations involved could invoke sovereign immunity because the land belongs to GLITC and not to any individual sovereign tribe.

The deliberation

As they moved into deliberation, Holewinski reminded everyone that the committee’s business was not about the mission of the treatment facility or about whether a good business plan had been put into place.

“It’s our job to determine that the CUP is compatible to the zoning district it is applying for and that it meets the purpose of the district and meets the standards as suggested in the ordinance for the committee to analyze the impact to the area,” he said.

On standard one, whether the facility would not be detrimental to or endanger the public health, safety, morals, comfort or general welfare, Holewinski said GLITC had not provided substantial evidence to meet the standard.

“The applicant did not meet the standard in a statement,” he said. “He [the applicant] says it is not expected to endanger the public health, safety, comfort or general welfare, he then goes on to give his business plan. The answer does not give substantial evidence to the prevention of and protection from events that could endanger the safety and security of the public from significant danger, injury or property damage in a general area of the district.”

Holewinski pointed out that the area was designated for limited commercial development.

“In a rural atmosphere, limited commercial main structures will not be used as gathering places for large numbers of people,” he said. “The application is for 36 beds and 44 employees for a total of 80 people.”

Also, Holewinski said, the use is supposed to be limited to directly benefiting area residents, which would not be the case.

Roach and Timmons agreed, but Ryden and Almekinder said the standard could be met with conditions.

On the second standard — that the uses, values and enjoyment of neighboring property shall not be substantially impaired or diminished — the committee agreed unanimously that the standard had not been met. GLITC submitted studies showing that such facilities would not lower property values, but Holewinski noted those were in urban areas. He cited a Virginia study with an opposite conclusion.

“The result that they showed was Seattle, Washington, isn’t comparable to the Cassian property,” he said. “It’s [the Cassian property] a lot closer to the Virginia properties and even the values and the sizes and the costs of the homes showed the applicant did not supply sufficient evidence.” 

All the other committee members agreed there was no proof that the values would not be affected.

The next standard — whether the conditional use would be compatible with the use of surrounding land and to any adopted local plans for the area — also produced a unanimous negative result for GLITC.

“I think for this standard you have to take into consideration the town comprehensive plan,” Holewinski said. “We have to take in the residential area, the purpose statement and the public comments and again the applicant did not supply sufficient substantial evidence to verify that the CUP is compatible with the use of adjacent land and adopted local plans, even though the ordinance provides that the use could be adopted with the CUP.”

Timmons also said it was clear to him that the plan didn’t fit the land use plan, as did Ryden, Almekinder, and Roach.

Another standard was whether the use would impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district. Holewinski and Roach again took the position that the applicant did not provide substantial evidence that it would not, and it prompted a rebuke from Holewinski, who said GLITC was simply regurgitating the language, using an assertion of compliance without any evidence or proof.

“I go through each one of these and it seems like they took what the standard was and just said, ‘yeah, we meet the standard’ and just kind of twisted the words around, but there is no evidence, no substantial evidence that tells me that that standard is met,” he said.

Roach agreed, but Ryden did not.

“I think that I don’t agree with you guys,” Ryden said. “I think that there’s a chance that it could actually help some development improvements on properties.” 

Obviously that wasn’t certain, Ryden said, but nonetheless he believed the standard could be met with conditions. Almekinder and Timmons joined Ryden in that conclusion.

“They’re going to be bringing natural gas, electric, internet,” Almekinder said. “So I think that it could be met with conditions.”

There was a huge debate over the lack of actual plans for utilities and access roads, and again a split decision from the committee, with Timmons the swing vote against GLITC. Roach said specific plans for roads and utilities were important.

“I don’t know how they’re doing the drainage exactly,” he said. “I don’t know how they’re going to get their road in there for safe travel, for police protection, ambulance, how a fire truck would go in in the spring and not sink in the mud without this infrastructure around it.”

And did GLITC provided substantial evidence that adequate measures had been or would be taken to provide ingress and egress so as to minimize traffic congestion in public streets?

According to Holewinski, Timmons, and Roach, no.

“Forty-four employees coming and going every day — at the public hearings this was a big concern, but there’s no substantial evidence right now to solve the problem,” Holewinski said. “So to me, can it be met with conditions? Yes. But they haven’t supplied any substantial evidence to tell me.”

Timmons agreed. 

“There’s no substantial evidence,” he said. “With the weather we been having recently, if you take 40 cars or 40 trucks and run up and down a gravel road on a day like today and yesterday, then you bring a heavy vehicle in there the next day, trying to get it down there in an emergency situation, you wouldn’t get down there.”

Almekinder said his read was a little different: “I don’t see this 44 people being a traffic congestion, so I have to disagree with you on that.” 

Ryden said he agreed with Almekinder, with conditions.

Everyone agreed the permit application would not violate shoreland or floodplain regulations governing the site, and that adequate measures had been or would be taken to prevent and control water pollution, including sedimentation, erosion and runoff. Concerns about sovereign immunity could also be satisfied with conditions, everyone agreed.

Even so, the unanimous votes that the standards had not been met on two items doomed the application.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.