Keith Kaplan, Member of the Zoning Board of Appeals: Did He Violate The Ethics Code Of The ZBA In the Pending John Witt Application?

On Tuesday, March 15, 2016, I submitted a formal complaint to the City’s Ethics Board regarding Keith Kaplan, who serves on the Zoning Board of Appeals.

The ZBA is rather unique since it is considered “quasi judicial” in nature and by its functions. According to the New York State Department of State that trains ZBAs, as part of the expectation that it be both impartial and transparent, there is a strict rule that all communications between applicants and ZBA board members must be restricted to their public meetings.  Communications between applicants and board members outside of meetings are definable as ex parte and are therefore strictly forbidden.

At the February 22nd meeting, following John Witt’s item on the ZBA agenda, he and Mr. Kaplan engaged in what appeared to be some light banter.  Mr. Kaplan reminded Mr. Witt that he had warned him not to let his variance expire and Mr. Witt apologized for his failure.  The problem revealed by that simple exchange was that since the original Downton Walk proposal approval had expired, Mr. Witt had not been before the ZBA on that matter until that night.   This comment strongly suggested that in the interim, Mr. Witt and Mr. Kaplan had engaged in an ex parte conversation about his project.

The two men having this conversation would be comparable to a judge chatting with someone before him during the pendency of a live proceeding, privately advising that person as to what they should do regarding the pending proceeding.

Since I did not have Mr. Kaplan’s email address, I sent an email to Susan Barden, the City planner assigned to the ZBA, asking her to forward my inquiry to Mr. Kaplan.  In my email I asked if he could share with me when and under what circumstances he had communicated with Mr. Witt regarding the Downton Walk proposal.  I asked that Ms. Barden copy me along with the ZBA when she forwarded my request to Mr. Kaplan.

After several days of not hearing anything, I emailed Ms. Barden as to the status of my email.  I received a very brief note informing me that my email to Mr. Kaplan had been forwarded.

I waited a week but did not hear from Mr. Kaplan.  I am attaching the referenced emails to this post so people can judge for themselves the tone and substance of the emails.

It is instructive both that Ms. Barden did not copy me, as I had expressly asked, and that Mr. Kaplan has not had the courtesy to acknowledge my inquiry, let alone address it.  The question I posed to this public official was, after all, clear, direct and simple.  This is sadly illustrative of the all too common imperious attitude of the ZBA towards the public.

As a result of the foregoing, I have submitted a formal complaint to the City’s Ethics Board.

Some of you may remember that I submitted a complaint to the Ethics Board several months ago regarding William Moore, Chair of the Zoning Board of Appeals, and Tom Lewis, who is a member of the City’s Planning Board.  Sonny Bonacio recently completed Mr. Moore’s home construction project and is currently building Mr. Lewis’s home (a story on this subsequently appeared in the Times Union).  In spite of this neither of these men has recused himself from ZBA proceedings when Mr. Bonacio has come before them.  In the case of that earlier complaint, I was allowed to attend an Ethics Board meeting.

In this case I also asked Mr. Hogan if I could attend the Ethics Board meeting to explain my concerns in the current matter regarding Mr. Witt’s project proposal.  I had exchanges with him set out below.  Whereas previously I simply requested and was granted an appearance before his Board, things are less clear as regards my new complaint (see emails below).

As a further note, for all intents and purposes the Ethics Board pretty much meets in executive session so attending their meetings is not terribly informative.

==============================================================================================================================

From: Justin Hogan [mailto:justahogan@yahoo.com]

Sent: Tuesday, March 15, 2016 5:25 PM

To: John Kaufmann

Cc: Trish Bush; Tony Izzo; Courtney DeLeonardis; Marilyn Rivers; Brendan Chudy; John

Ellis

Subject: Re: Formal Complaint

Mr. Kaufmann,

The Board of Ethics has received your inquiry. The board will review your

submitted inquiry and notify you of any action taken according to the Procedures

of the Board of Ethics.

Please let me know if you have any questions.

Thank you,

***************************************************

From:   John Kaufmann

Sent:    Mar 15, 2016, at 6:11 PM

To:       Justin Hogan [justahogan@yahoo.com]

Cc:       Brendan  Chudy; Courtney DeLeonardis; John Ellis; Marilyn

Rivers; Tony Izzo; Trish Bush

Subject:           Re: Formal Complaint

I would like to address the board.

******************************************

From:   Justin Hogan [justahogan@yahoo.com]

Sent:    Tuesday, March 15, 2016 7:09 PM

To:       John Kaufmann

Cc:       Brendan  Chudy; Courtney DeLeonardis; John Ellis; Marilyn

Rivers; Tony Izzo; Trish Bush

Subject:           Re: Formal Complaint

Mr. Kaufmann,

Thank you for reaching out. As previously stated the board will review your submitted inquiry and notify you of any action taken, pursuant to the Procedures of the Board of Ethics.

If you have any further questions regarding provisions of the Code and or Procedures myself or Tony Izzo would be happy to speak with you.

Thanks again,

Justin

 

******************************************************

From:   John Kaufmann [john.kaufmann21@gmail.com]

Sent:    Wednesday, March 16, 2016 5:23 AM

To:       ‘Justin Hogan’

Subject:           RE: Formal Complaint

I cannot find anything in the by-laws your board that requires you to allow me to address the board.

Do I take your response as a “no” that I may not attend a meeting to address the board?

JK

 **********************************

From: Justin Hogan [mailto:justahogan@yahoo.com] Sent: Wednesday, March 16, 2016 5:40 AM To: John Kaufmann Subject: Re: Formal Complaint

Mr. Kaufmann,  We haven’t been able to review your inquiry yet (submitted yesterday). The board met last Thursday and we are in the process of coordinating our next meeting. In regards to your question below, our meetings are open to the public so members of the public are always welcome. However, pursuant to the code we will review your inquiry first (and in the exact same manner as your two previous inquiries) will notify of you action taken and next steps which could include requesting you attend a meeting to further discuss your inquiry.

Thanks,

Justin

==============================================================================================================================================

Mr. Hogan was originally appointed by Mayor Scott Johnson and then reappointed by Mayor Yepsen.  His resume is informative.  Originally a paid foot soldier for George W. Bush, he later worked for a lobbying firm headed by a Democrat with a similar history.   Appointing such an apparatchik to head a government ethics board, where the appearance of “transparency” and public trust would seem to have paramount civic importance, invites attention.  Apparently, however, Mr. Hogan was someone Mayor Yepsen and Mayor Johnson could agree on.

While I have little confidence that anyone on the ZBA will take up the issue, let alone that the Ethics Board will genuinely examine the merits of the complaint made in this instance, I am optimistic that over time things will be changing.  The purpose of the Ethics Complaint is to document anecdotally the need for reform regarding the City’s ethical standards in this arena. No heavy lifting there!

There has been quite a spike in land use conflicts during the last year in Saratoga Springs.  The increasing number of conflicts is being driven by the maturation and evolving character of our City.  The success of developers and the City’s related growth has triggered an interesting blow-back.   Animated by potential profits, the developers are increasingly ambitious, not to say aggressive, in their projects.  As a result they are finding themselves in greater and greater conflict with the many neighborhoods in our City.  The result has been an extraordinary and accelerated education for more and more people about the importance of land use boards, their dominance by the real estate industry, and the seeming contempt by many members of these boards for the people with the temerity to scrutinize and, at times, oppose the new projects.

All of this is confirmed by the success of this blog.  During the last week the post on the Witt project alone had almost 2,000 views.  Even I have been stunned by the interest in this site.  It has been quite rewarding to meet many, many new people at local events who care so deeply about Saratoga Springs and who are willing to act in response to civic awareness.  People care and this will eventually convert into real reform with respect to our land use boards and zoning judgments.

Email Exchange With City Planner Susan Bardon

From: John Kaufmann <john.kaufmann21@gmail.com>

Date: 03/08/2016 8:57 AM (GMT-05:00)

To: ‘Susan Barden’ <susan.barden@saratoga-springs.org>

Cc: ‘Joanne Yepsen’ <joanne.yepsen@saratoga-springs.org>, ‘Christian Mathiesen’

<christian.mathiesen@saratoga-springs.org>, ‘John Franck’ <johnfranck11@gmail.com>,

‘Michele Madigan’ <michele.madigan@saratoga-springs.org>, Skip Sciroco

<skip.scirocco@saratoga-springs.org>

Subject: Ex Parte

At the February 22nd ZBA meeting, following John Witt’s item, Keith Kaplan quipped to Mr.Witt that he had warned him that he should have applied for an extension of his variances.  Witt responded by apologizing to Mr. Kaplan for his failure.  I cannot find any reference to this warning in earlier meetings of the ZBA.  It would appear that this was an ex parte conversation.

I am formally asking that you pass my inquiry to Mr. Kaplan, asking when and under what circumstances he had offered this advice to Mr. Witt.  Would you please pass on this request to

Mr. Kaplan and copy me and the other members of the ZBA on it.

Thank you.

*************************************************

From: “John Kaufmann” <john.kaufmann21@gmail.com>

To: “Susan Barden” <susan.barden@saratoga-springs.org>

Sent: Thursday, March 10, 2016 6:10:23 AM

Subject: Kaplan

Ms. Barden, I previously emailed you (see below) asking that you forward my email to Mr. Kaplan with copies to the other members of the Zoning Board of Appeals and copying me.  To date, I have not received anything.  Could I ask that you acknowledge this email.  If you do not plan to forward my correspondence, would you please advise.

Thank you

***********************************************

From:    Susan Barden [susan.barden@saratoga-springs.org]

Sent:     Thursday, March 10, 2016 10:42 AM

To:          John Kaufmann

Subject:               Re: Kaplan

John,

Your question has been communicated to Mr. Kaplan.

Thank you,

Susan

Susan B. Barden, AICP

Senior Planner

City of Saratoga Springs

474 Broadway

Saratoga Springs, NY

518-587-3550 ext. 2493

 

4 thoughts on “Keith Kaplan, Member of the Zoning Board of Appeals: Did He Violate The Ethics Code Of The ZBA In the Pending John Witt Application?”

  1. Mr Kaplan clearly discussed this case outside of the ZBA. This good ole boys chummy mentality is finally being challenged. We have many smart people in Saratoga and I guess we have all gotten pushed to far.

    Like

  2. I just reviewed the February 22nd meeting and the section at 198:25-33 where the exchange occurred. It appears Mr. Kaplan is warning Mr. Witt (in a jovial way) that next time, don’t let your approval expire. This was said in an open mic and did not appear to be hidden from the public in anyway. I found nothing which indicates Mr. Kaplan engaged Mr. Witt in a previous conversation. Please give us your original source for this accusation.

    Like

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