Impartiality, Open Government And The Sad State of the ZBA

My decision to start  blogging on public policy issues did not come out of a void.  Increasingly the public has become frustrated by the disconnect between their concerns and the decision making bodies that affect their lives.  Rather than react passively, people are turning out to meetings, contacting their legislators, and finding vehicles to educate those around them.

Not surprisingly, those same institutions are under strain.  For many of the individuals who serve on these bodies and who devote countless hours attending meetings, this is a difficult period.  Regrettably, it is not unusual for the public to be the recipient of anger and resentment from board members who had grown used to a passive public.

Below is an exchange between attorney Mark Schachner who specializes in land  use issues for the city and myself.  He is responding on behalf of William Moore, the chairman of the Zoning Board of Appeals, who I had emailed asking questions about recent events involving his board.

The central issues are as follows.  Does the ZBA’s meeting structure favor the applicants for zoning variances over the people whose neighborhoods are being impacted?  Did the decision on how to address this problem occur outside of the formal meetings of the ZBA? If so, did this constitute a violation of the Open Meetings Law?  Finally, if it did not violate the law, did the public still deserve to observe the discussion at which this decision was reached?

As further background, Mr. Moore did not reply to my original email and I followed up with two more courteous requests.

On July 8th, I received Attorney Schachner’s letter.

I am fortunate to have readers who are interested in going beyond sound bites.  I expect they will find these documents of considerable interest.


The Original Email (There were two follow ups)

From: John Kaufmann []

Sent: Thursday, June 23, 2016 4:25 PM

To: ‘William Moore’

Cc: ‘Joanne Yepsen’; ‘Michele Madigan’; ‘Christian Mathiesen’; ‘John Franck’; ‘Vincent DeLeonardis’

Subject: ZBA Compliance With Open Meetings Law

At the beginning of the May 9th meeting of the Zoning Board of Appeals, you announced that hence forth there would be a new policy on seating.  You indicated that in the future applicants to the ZBA would be asked to leave the table at which members of the ZBA were seated and sit in the gallery during the public comment period.

While this is an improvement over the previous policy it fails to live up to the standard of impartiality advised by attorney Mark Schachner at the ethics training attended by yourself and the members of the board.  To wit, that the boards should seek the highest standards as regards impartiality and openness and that having the applicant sit at the table with the board was not a good policy.

As you may be aware, the Planning Board requires applicants as well as the public to advocate from behind the railing from the gallery.  In fact, historically this was the policy of the ZBA as well.

According to Commissioner Chris Mathiesen, both the public and the applicant were allowed to come up to the table when materials were presented that could not be seen from the gallery.  This made it possible for the public to observe any hard copy documents presented by the applicant.  Other than under those circumstances, as the Planning Board currently requires, both the applicant and the public were relegated to the gallery.  This represented the highest standards consistent with the advice offered by Mr. Schachner.

I believe that it was Mr. Schacher’s point that seating applicants with you at the table sends an implicit, if unintentional, message about the status of applicants as compared to the public. I am respectfully requesting that you respond by explaining why you chose not to return to this policy but to continue to have applicants sit with you at the table during their presentation while relegating the public to the gallery.

I have reviewed the videos of the ZBA and I cannot find any meeting at which you discussed this change of policy.  Having observed your interactions with your board, I know how inclusive you are with them.  I find it very difficult to believe that you would have made this policy change without both consulting them and having a thoughtful conversation on this sensitive issue.  It is possible that I missed this event.  I respectfully ask that you respond by indicating at which meeting this decision was reached.

At your June 6 meeting Adam McNeil gave an impassioned statement over his frustration at what he characterized as the public’s unfair criticism of the members of the ethics board.  Ms. Steer seconded his comments.  I have a certain sympathy for their frustration.  There is no question that the members of this board give extraordinarily of their time as members of this board.  I would respectfully point out, however, that the board’s deliberations have a profound impact on the lives of the people of this city.  It is also fully understandable that the people who live in the neighborhoods affected by the decisions of this board often find the decisions of this board both threatening and painful.   The members of the public who have addressed this board have shown considerable restraint and respect.  The fact that Mr. McNeil and Ms. Steer cannot understand why, for example, the public would be disturbed that a member of the board would go out for drinks with an applicant and his lawyer after a meeting unfortunately reflects a certain lack of empathy and deference to the public .

I would be appreciate if you could respond to my following two questions at your earliest convenience.

*Why did you choose to continue to have applicants sit at the table with the board during their presentations rather than in the gallery as was past practice with the ZBA and current practice with the Planning Board?

*At which ZBA meeting was this change discussed?

Thank you



Attorney Mark Schachner’s Reply [I am including a link to a PDF for those who have trouble reading this image: Letter from Schachner ]

Letter from Schachner-1

Letter from Schachner-2

Letter From Schachner 3a


My Reply To Mr. Schachner

From: John Kaufmann []

Sent: Saturday, July 09, 2016 8:18 AM

To: Mark Schachner (mschachner@mmshlaw.com)

Cc: ‘Kerry Miller’; ‘Joanne Yepsen’; ‘Christian Mathiesen’; ‘John Franck’;
‘Michele Madigan’; ‘Tony Izzo’; ‘Vincent DeLeonardis’; ‘William
Moore’; ‘Bradley.Burge@saratoga-springs.org’; ‘Susan Barden’

Subject: RE: City of Saratoga Springs

Thank you for your long and thoughtful letter.

I think if you review my email you will see that I never asserted
that there was any legal issue that would compel the Zoning
Board of Appeals to follow the example of the Planning Board in
the manner with which it receives input from the public.

While I am not surprised that you chose not to venture into a
substantive discussion of the merits of the Planning Board’s
approach I thought you articulated my basic concern quite well
at the original training you did. I only wish the members of the
Zoning Board of Appeals had taken your advice more to heart.

I am however disappointed at your defense/characterization of
the manner by which the change to the seating policy was
determined. Based on your own comments at the training, the
issue of impartiality is not a frivolous one and as such deserves
serious consideration. Not being a lawyer, I will accept the fact
that a discussion over an issue like this can be carried out
informally outside of public view without violating the open
meetings law.

Having said that, I think Mr. Moore and his board would have
been better served had you counseled them that encouraging
trust by discussing sensitive issues like this in full public view
would avoid unnecessary conflict and help to encourage a sense
of trust in the community. Explaining a policy change like this
seems like a modest endeavor and being obdurate about
offering an explanation does not become the chairman of an
important board.

I want to thank you and the mayor, who I assume asked you to
address this, for your letter.

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2 thoughts on “Impartiality, Open Government And The Sad State of the ZBA”

  1. This really goes to the heart of why the commission form of government is flawed. As constituents, we have no representatives to act as advocates for the public in, for example, the case of boards or departments, like the ZBA, who seem to make up their own rules as they go along. Lack of direct oversight by a representative City Council, whose sole duty is to legislate and oversee the city government as a whole, is the best argument for change that was never made.

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  2. Any member of the public who has ever attended a ZBA meeting and been relegated to the general seating area while applicants are invited to sit at the table with the Board can tell you the feeling of favoritism is palpable.
    Mr. Schachner’s sarcastic comment regarding Mr. Kaufmann’s investigating reporting via his blog is disingenuous at best. I hardly think his inquiries in the interest of open government are the reason city officials don’t have the time to do their jobs. On the contrary, if Mr. Moore had simply answered the question as to why he chooses not to follow Mr. Schachners’ advice to the Board that treating applicants and the public equally would help to avoid any semblance of impropriety, Mr. Schachners’ letter wouldn’t have been necessary. Think of the city resources that could have been saved!

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