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At her Gossips of Rivertown blog, Carole Osterink posts about Don Christensen’s 2001 exhibit at the Hudson Opera House, Seeing South Bay. As she references Save the South Bay’s summary of this stunning show, I thought it might be useful to excerpt that portion of those comments here for interested readers. (The full comments can be read online or by downloading the files by following the links here; the one-page Executive Summary is here.)

In 2000-2001, Hudson resident Don Christensen embarked on a remarkable exploration of a question he had every time he looked out the back window of his house on Willard Place: How did Hudson’s famous South Bay—once an open body of water full of schooners that was depicted repeatedly by the Hudson River School painters—become a degraded swamp and landfilled industrial wasteland?

Christensen came to Hudson in the 1980s without any intention of getting involved in local affairs. Now the threat of SLC turned this casual question into a matter of fight-or-flight urgency. Going through old deeds at the Columbia County Real Property Department, dusty files at the County Historical Society, spinning through acres of microfilm in area libraries, checking the archives of historic sites and museums, and quizzing astonished bureaucrats at agencies like the New York State Office of General Services, Bureau of Land Management, Division of Lands Underwater, Don unearthed the true history of the Bay. His research raised serious questions about the SLC’s title to illegally-filled acres along the river, and resulted in a major exhibit at the Hudson Opera House, Seeing South Bay. The more than 100 images and documents in Seeing South Bay included old maps, deeds, newspaper articles, photographs, 19th Century artwork, and numerous other historical resources are archived online [here].

Images from the exhibit are interspersed throughout these comments. The exhibit included this March 2001 statement from the National Trust for Historic Preservation:

“With a mix of scenery and history unmatched anywhere else in the country, the Hudson Valley is one of America’s greatest treasures. South Bay, with Mt. Merino rising overhead, represents a significant part of that heritage. The history of this landscape vista should compel each of us to ask: What have we lost and what could we lose further?”

[The exhibition’s effect] was to remind residents of the area that the South Bay was not always degraded— and that it does not have to remain so. Christensen’s project established the largely-ignored South Bay as a centerpiece of Hudson’s history and legacy, and created a public desire to see as much of it restored as possible—to reverse some 150 years of neglect. It made people realize that the City had more hidden assets and broader horizons than its leaders sometimes want them to believe.

Among the many small and large revelations of the exhibit was Christensen’s exposure of how industrialist Fred Jones, one of the earlier quarriers of Becraft Mountain, manoevered Hudson officials in the late 19th Century into allowing him to put a railroad trestle through South Bay, a body of water and view which was considered practically sacred by many residents.

Jones understood that if he simply proposed the trestle outright, he would be turned down. So instead he announced that he was going to put a railroad along one of Hudson’s residential streets to move vast quantities of stone to the Waterfront. As Jones correctly calculated, this announcement set off a firestorm of indignation and protest. After the initial hue and cry, Jones came back with a repentant attitude and a stated willingness to compromise: He’d “settle” instead for a railroad trestle through the Bay. Those who feared trains rolling past their doorsteps fell for his ploy, and agreed to his fake bargain.

The parallels with the present-day actions of Holcim are all too clear. Holcim, with the connivance of O&G, have steadily introduced excruciating levels of truck traffic into dense residential neighborhoods of Hudson. Now, as part of the LWRP, they are “agreeing” to relieve the City of this noxious and hazardous traffic by accepting instead a heavy haul road through the South Bay—along the exact same causeway which was built up from sediment and fill surrounding Jones’ trestle. Will Hudson fall for this gambit all over again?

C. LAND TITLE ISSUES

In 2001, in the course of his South Bay research, Christensen also unearthed significant land title problems at the Waterfront, working with Friends of Hudson and also former OGS attorney Robert Maclean.

Maclean was for several decades the attorney for the very agency which oversees such matters, and privately was able to verify with staff that Christensen’s claims had merit. (A copy of a Friends of Hudson news release summarizing Christensen’s findings is included as Attachment IV-B and a schematic map, Attachment IV-D, created by Friends of Hudson in consultation with Mr. Christensen in 2001, which shows the contested areas in great detail; a detail of that map appears below.)

Commenting on behalf of Friends of Hudson in July 2001 as part of the group’s application for full party status in the DEC review of the Greenport project, attorney Jeffrey S. Baker (who since has performed legal work for some City agencies) addressed the topic as follows. Due to the importance of this matter, we reproduce below a large portion of Baker’s brief:

X. LAND OWNERSHIP ON THE HUDSON WATERFRONT 

As part of its application, SLC proposes a significant expansion of its existing dock facilities in Hudson, primarily for the purpose of being able to simultaneously handle out-going barges receiving cement and in-coming HudsonMax vessels delivering coal and other inputs. 

SLC has applied to the DEC and the Army Corps of Engineers for a permit to dredge up to 80,000 cubic yards of river bottom and to fill up 51,907 square feet for construction of its dock facilities.[22] Associated with the requested dock expansion, SLC has applied to the New York State Office of General Services for a Grant for Lands Underwater. Very serious issues have arisen with respect to SLC's right to request such a grant including questions about whether it evens has valid title to the land it currently occupies. 

Public records indicate that SLC does not likely hold title to substantial land areas along the edge of the Hudson River where the company proposes to locate its dock operations. Because of probably unauthorized fill-in of the Hudson River by SLC and/or its predecessor companies beyond boundaries defined by State authority, the locale of the proposed dock occupies a large area of land that in all probability is held in title by the People of the State of New York.In addition, the area of the waterfront that was filled in by proper authority of the State was permitted under the express condition of maintenance in perpetuity of a sizeable dock for use by the public. SLC and its immediate predecessor company failed to comply with this condition, thereby raising the prospect of a return of these lands to the People of the State of New York. The land ownership of the waterfront area would directly affect the nature of any dock operation proposed by SLC if not raising a legal question about the actual right of the company to occupy any part of the area. 

The entire area of the current lands along the Hudson River now occupied by SLC's dock is landfill in the bed of the Hudson River. The issue of title ownership concerns approximately 1,400 feet along the River's edge that comprises SLC's primary area for its current and proposed active dock use. Authority for a precisely defined fill-in of this area of the Hudson River, along with conditions for the fill-in, was granted by State Legislative Act, Chapter 195, Laws of 1855, and was reconfirmed and slightly revised in a subsequent State Legislative Act, Chapter 167, Laws of 1861. These two Legislative Acts redefined the size and conditions of a previous “Grant of Land Underwater” issue by the State Land Commissioner through Letter Patent to John L. Graham dated December 12, 1836. There is no other apparent State authorization that provides any other definition of this area of the Hudson River permitted to be filled in or any other definition of conditions accompanying any fillin. 

The Legislative Acts provide: (a) precise measurements of the area of the Hudson River allowed to be filled in for use of commerce (b) the condition for the filling of the River that states “hereby required forever hereafter to keep open the slip or space now opened by them to the south of their furnace of a width of at least sixty feet, and extending back from the channel of said river at least two hundred and fifty feet, for the use of the public.” The restrictions defined by these acts for permitted landfill and the maintenance of the required public dock were honored for generations. Additional, and apparently unauthorized, landfill running most of the entire length of these 1400 feet of the Hudson River as well as the closing of the public dock was carried out by SLC and/or its immediate predecessor company at some time after approximately 1915. 

An in-depth research project by Friends of Hudson member Don Christensen and subsequent confirmation by Robert Maclean, Esq., former counsel to OGS have revealed the problems with SLC's existing title. That research was further confirmed by the rejection by OGS of the draft survey supplied by SLC with its application for the grant of state lands, where OGS determined that the proffered survey lacked sufficient detail and supporting information to demonstrate SLC title to the existing lands and the proper delineation of the requested grant. 

In the absence of a valid survey the precise extent of the possible unauthorized fill-in of the area cannot be determined. A rough approximation of the unauthorized landfill suggests an area upwards of seven acres and possibly more. All of the area of unauthorized landfill would be lands held in title by the People of the State of New York. Without proper title, SLC's proposed design and use of the waterfront as outlined in the EIS cannot be considered. 

The evidence of unauthorized fill by SLC and its predecessors in such a substantial area raises significant questions about the nature of the fill material and the real possibility that it was filled with industrial waste causing contamination to the lands of the People of the State of New York and the Hudson River. While the Joint Permit Application to DEC and the Army Corps of Engineer contains sediment samples in the river, there are no soil samples taken of the existing dock area itself and the area that was illegally filled. 

In addition to the illegal and potentially dangerous fill, SLC and its predecessor's violation of the specific conditions of the Legislative grant constitute a gross violation of the public trust. SLC was required to maintain a 60 foot wide public dock area in perpetuity. That requirement constituted an early Legislative recognition that public access to the waterfront, not just by spectators but as an active waterfront was essential to the orderly development and beneficial use by all members of the community. By failing to comply with that condition, title to all lands held by SLC associated with that condition is subject to challenge and revocation. There is well established legal precedent fro revoking grants of lands underwater where the grantee has failed to comply with the conditions of the grant. 

Non-compliance with the condition is not simply an academic exercise, but raises significant questions with respect to SLC's offered mitigation of a pedestrian walkway around its property so that people can view the river. Regardless of how attractive SLC attempts to make such an access area, it is an inadequate substitute for the lack of public landing that it was supposed to have maintained in the first place. Before SLC seeks to mitigate the impacts of what it intends to do, it must first restore the condition it was obligated to provide as a condition of the original grant. 

Coupled with SLC’s violation of its existing grant, are grave concerns regarding the requested expansion of the dock area. The Hudson River Estuary Management Action Plan issued by DEC in 1996 and the 9 NYCRR Part 2, priority use of the Hudson River is to be given to the public by use of lands still owned by the People of the State of New York and thus should preclude an extension of the grant to SLC. This is particularly relevant with the City of Hudson's plans to redevelop the waterfront and increase public access to the river.

However, apparently due to the intense controversy surrounding the Greenport Project in 2001- 2002, neither the DEC nor the Office of General Services’ Bureau of Lands Underwater was eager to investigate the land title issue. In addition to SLC being a political “hot potato,” private feedback from persons connected with OGS indicated that the State was loathe to open the whole “lands underwater” can of worms, since there is the potential of many supposedly private property owners along the river being similarly situated atop unpermitted fill into the River, lands which could be reclaimed by the State. 

As such, this key issue was tabled by the Pataki administration during the period when no state agency wanted to be first to make a move on the controversial SLC project. It was reported back to Friends of Hudson that OGS staff at one point were instructed to try to disprove Christensen’s research, but found that they could not. A single, inconclusive memo was issued which partially disputed one small portion of his research, but all the other aspects of the claim were left unaddressed. 

Maclean is now retired in Loudonville, but would likely be willing to address this matter again; this same suggestion was made to the WASC and Ms. Roberts several times in 2006-2007, to no effect. Nor to our knowledge has the City or DLWRP authors undertaken other independent efforts to ascertain the true extent of Holcim’s land holdings in the South Bay area, though it is rumored that the quasi-public Hudson Development Corporation (HDC) undertook some investigation of these matters in 2005-2006. And naturally, Holcim has had no interest in pursuing this itself, and has strenuously denied that it lacks clear title to these former lands underwater. 

But if the State and/or City were to ascertain that the disputed riverfront acres belonged to them, rather than to Holcim, the entire complexion of the DLWRP would change. All of the compromises and accommodations of the company’s demands would be transformed into a major new public opportunity. 

Save the South Bay thus recommends with the utmost urgency that this matter be fully investigated prior to the enactment of any LWRP for Hudson.