A More Careful Look at Judge Nolan’s Decision in Charter Referendum Case

NY Supreme Court Judge Nolan’s decision in the case Gordon Boyd brought against the Commissioners of the Saratoga County Board of Elections makes for some interesting reading.

Boyd was the treasurer of the now defunct Charter Review Commission which put a proposal on last November’s Saratoga Springs ballot to replace the city’s present commission form of government with a city manager form.

Boyd petitioned the court to:

  1. Order a hand recount of all ballots cast in the city’s November referendum on charter change or release the “.tif” files, the electronic files generated by the voting machines
  2. Compel the Board of Elections to release information requested in a FOIL (Freedom of Information Law) filed on November 20 asking for among other items “.tif” files and unscanned ballots from the November election

The FOIL Issue:

Judge Nolan addresses the issue of the FOIL request first.  He notes that there is a very clear legal procedure to be followed in seeking access to public records. Basically Boyd did not follow this procedure and so the Judge denied his request to compel the Board of Elections to produce the records he sought.

Boyd’s failure to correctly file a FOIL request puzzles me.  Boyd is not a newcomer to politics having  worked in the Assembly, run for local office more than once and served on municipal boards to name only a few of his experiences in government. Even if he had never filed a FOIL request in his extensive political career, it is not difficult to get information on how to proceed.

I went to the Saratoga County website and typed in” FOIL” in the search function. This is what I got:

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and the request form was only a click away:

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The directions were quite clear and the name of the person to whom the request must be submitted was prominently displayed on the site and on the form.

If Boyd had any doubt about how to proceed he could have contacted Theresa Connelly as indicated on the site or if not satisfied I have found Bob Freeman of the Committee on Open Government at the NYS Department of State to be very accessible and helpful. Boyd certainly is aware of Freeman as a resource.

Judge Nolan is quite clear in his decision that Saratoga County has in place the required rules and regulations governing access to public records and the handling of FOIL requests including providing for an internal appeal process if the request is denied. Only after going through this appeal process can an applicant begin a court proceeding.

To quote the decision “…the petitioner fails to show that a FOIL request was served on the County’s designated Records Access Officer….Clearly, petitioner has not followed the FOIL procedure and of course, did not exhaust his administrative remedies…..”

I have to admit I was somewhat amused given all the FOIL information that is easily accessible that former Charter Review Commission Chair and Skidmore Political Science professor Bob Turner complained to the Gazette that “They [the county Board of Elections] never called us to say ‘You should send it to this person.’”

The Recount

Boyd’s failure to get the court to order a recount seems also to be grounded in either a disregard for or an ignorance of the legal requirements involved in making such a request.

Boyd’s arguments for a recount consist of:

  1. “the unofficial canvas of the votes cast by machine for the …Proposed New City Charter MAY (emphasis added) be and often is incomplete and/or inaccurate”
  2. “several of the voting machines in the…political subdivision MAY (emphasis added) have malfunctioned or broken down and failed to count all of the votes cast for the Proposed New City Charter”

To which Judge Nolan replied:

“…petitioner produces no facts to support the propriety of a re-canvass. Rather the petition contains speculative statements….”


“These statements lack factual support. The only germane fact recited in the petition is that the Proposition No. 4 [the charter referendum] was defeated by 10 votes.”

Boyd goes on to argue that the New York City Board of Elections requires a manual recount of paper ballots when the margin of victory is less than 10 votes or one-half percent of the total votes cast. Judge Nolan points out, however,  that  “neither the New York State Board of Elections nor the Saratoga County Board of Elections mandates a re-canvass when an election result is close.”

Nolan goes on to write:

“…the narrowness of the margin, absent evidence of voting machine malfunction or some other irregularity, does not justify granting the request either for a hand count of the preserved paper ballots or the production of all ‘.tif’ files.”

He then cites Matter of Bradley v. D’Apice : “Before a court may grant permission to examine voting machines and paper ballots or direct a re-canvass, the petitioner must provide facts which support the claim that irregularities, discrepancies or errors occurred which affected the outcome of the election. Statements based on information and belief which fail to state the source of the information or the grounds for the belief are insufficient.”
This whole legal matter seems to me emblematic of the problems members of the Charter Review Commission and it’s PAC,  It’s Time Saratoga,  have exhibited throughout their campaign for charter change. They simply do not do their homework as was evident in the many misstatements they put our in their campaign materials. This can be seen again now in the unnecessary sloppiness of their FOIL request and in their disregard for the legal requirements that state that factual evidence must be produced to indicate that a problem with voting may have occurred in order for the court to grant a recount.

This is not a matter of “Catch 22” as Bob Turner tried to spin it to the Gazette. He argued that they can’t show there’s a problem as required because the judge won’t release the “tif.” files that could possibly show a problem. While I can sympathize a bit with their desire to review all the ballots, the court’s refusal to grant a request to devote extensive public resources and money to hand count some 9,000 ballots for what would essentially be a fishing expedition does not seem unreasonable to me. Aside from the issue of the ballots, they also had no evidence that voting machines broke down. They could produce no reports from the inspectors at polling places nor from any of the observers that day that any such problem occurred anywhere in the city.  Like it or not the law says they needed to produce evidence and they could not. Turner, as a political science professor of all people, should be aware of what the rules are, and whether he likes them or not understand that they need to be followed.

One has to wonder too about what kind of advice their legal counsel Josh Ehrlich is giving them. Boyd has indicated an appeal is being considered.  He has refused to indicate what this is costing and how it is being paid for.




Court Throws Out Saratoga Springs Charter Election Challenge

I received the following press release from Richard Sellers, spokesperson for SUCCESS, the organization that opposed charter change:


“Supreme Court Justice Thomas Nolan has dismissed a petition by Gordon Boyd asking for a hand recount of the Saratoga Springs Charter Referendum that was defeated by voters in November.

Judge Nolan’s decision states that the “petitioner presents no facts to support or justify his request (emphasis added).”

The decision also states that the “only germane fact recited in the petition is that the Proposition No. 4 was defeated by 10 votes.” Specifically, there were 4,457 votes for the Commission form and 4,447 for the proposed change to a City Manager. Neither the New York State nor the Saratoga County boards of elections mandate a re-canvass due to a close election.

Importantly, the Saratoga Board of Elections has certified these results.

Boyd was one of the leaders of the Charter Review Commission and an activist in the election including representing It’s Time Saratoga, the Ballot Committee supporting moving to a City Manager form of government, at a debate at the City Center two weeks before the election.

Richard Sellers speaking for SUCCESS, the organization that lead the effort to maintain the commission form of government in Saratoga Springs, noted: ‘This is the third time in a decade that Saratogians have vigorously debated the merits of changing our form of city government, and this is the third time that Saratogians have voted to keep our Commission form.

Our form of government is unique as is our city. We feel the Commission form has worked well for Saratogians for many years and through many changes that the city has gone through. We look forward to Saratoga’s continuing prosperity under this special structure.’ ”

Here is a link to the court decision:

SUCCESS – Boyd v. Election Commissioners Decision – 2-13-2018


Richard Sellers

SUCCESS Spokesperson






Some Thoughts On The Forum On Building Heights




[JK: If the images below seem out of order it is because WordPress, the software I use to write this blog can be teeth grindingly buggy.  It commonly drops images in the wrong place and will not allow you to move them.  The blank spot above this text is due to a bug in the software.  The least fun thing about writing this blog is dealing with WordPress]

The primary speaker was George Jacquemart.   He is a principal with the firm BJF Planning.  According to his company’s website:

 Georges Jacquemart is a founding prinicipal of BFJ Planning and directs the firm’s transportation practice.

In 2006 the city contracted with Mr. Jacquemart to look at building heights.

The forum included a panel with Sonny Bonacia, architect Mark Hurff, City Planner Kate Maynard, and Doug Kerr representing the Saratoga Springs Perservation Foundation.

Here is a link to the Saratogian article http://www.saratogian.com/article/ST/20180131/NEWS/180139960

There were some interesting and thought provoking ideas presented.

According to Mr. Jacquemart there is a proportion of the width of a street/sidewalk to the facing buildings which is commonly used for what are considered to be ideal streetscapes.  The ideal ratio according to Mr. Jacquemart is .8 to 1.1.  He discussed how the upper floors can be set back to maintain this ratio while going higher.  Basically we are talking about tiered, stepped floors that cannot be seen from the street.

He discussed the importance of density to buildings.  Basically, having a downtown that is densely developed creates the scale required for strong retail and public transportation.  Restaurants and shops along with some sort of effective public transport requires many people.  The principle is pretty straightforward.

The original study from 2006 focused on the downtown core.  Here are some slides from his presentation that are meant to illustrate the principle of proportionality of street/sidewalk width to building height.

It is important to note that current city zoning allows for a maximum height of 70 feet for buildings downtown.

Examples of Varied Roof Tops And Indentations
More Examples Of Ornamentation And Bonuses



Illustration Showing How Corner Lots Can Be Taller Than Standard To Space Created By Intersection
Rendering Of Example Of Ornamentation
Examples of Set Backs


Set Back Examples


Examples of Height/Width Ratios





Rendering Of Caroline Street If The Buildings Went Up Six Stories
As Caroline Street Is










Hamilton StreetWoodlawn-7




2006 Study Area



In addition he talked about the significance of ornamentation and design to create attractive buildings. 

Apparently his original study recommended height bonuses based on the ornamentation of the building and for social purposes like workforce housing.

The Devil Is In The Details

Matt Veitch who is currently the president of the board of the Preservation Foundation  acted as moderator.  He told the crowd that he had one rule for the evening which was that there be no criticism of specific buildings.

I noted that one of the streetscapes in the presentation was Railroad Place.  I personally find the southern part of the road beginning at Division Street not a very pleasant environment.  The height of the buildings are at the extreme limit of the “ideal” norm.  The ratio is 1.1.

I had always attributed my discomfort with the street to the canyon like feel with its tall buildings.  I called a friend who lectures on urban design and asked him about the street.  He told me that the problem was not the height of the buildings but their design.  There is no active retail on the street and he characterized the walls facing the street as basically unattractive.  If the buildings were more attractive and/or there were restaurants and shops with the attendant people, it would have an entirely different feel.

I know nothing about architecture.  The buildings look pleasant enough to me, but there is, however, something flat, cold, and lifeless about them.  I attributed this to the lack of first floor retail and the lack of people.  I did notice that on the east side there is quite a bit of blank wall behind which is parking.



Street Level Of Railroad Place East Side

I will defer to my friend’s educated assessment that it is possible to design buildings that will create a more welcoming environment.

As the readers of this blog are well aware, I am never afraid to make uninformed judgments.  It seems to me that the energy of having people around makes the environment more hospitable.  In addition, it is the presence of lots of foot traffic that makes commercial establishments like cafes and shops possible.  I presume that with greater density of people downtown, the demand for commercial first floor space could result in redesigning the first floor of this street.

The central question is then what kind of density and population would the city need to make this happen.  The related question is how these areas can attract people from outside the city?

Putting aside the issue of parking, there is a limit to downtown’s road infrastructure.  How can it handle the kind of traffic that would bring more people downtown?

As traffic design is Mr. Jacquemart’s specialty, I asked him about this.  I was quite disappointed.  I found his wandering answer unhelpful.  In his defense, the topic of the night was building height but still, with height comes density which he is an advocate for and with density comes traffic.

 Two other panelists responded

 Kate Maynard talked about the trolley provided by CDTA in the summer.  She noted that the ridership had been limited by a number of factors.  People didn’t know what it cost (it is free) and they didn’t know where it went and when.  Since this information was publicized ridership has been way up.  With better promotion, it could address some of the transportation issues. 

Of course the city center parking plan which could have a tremendous impact on city parking availability is still unresolved.

Doug Kerr took the opportunity to opine about how most cities would welcome a traffic problem.  This is not the first time I have heard this.  Welcome or not, it is a serious and growing problem.  During the summer the backup of traffic coming from the South on Route 9 is becoming an increasing problem.  People are not going to visit our city if they find themselves mired in traffic and unable to park.  

If you have been involved in development issues, you know that the developer brings in a traffic consultant who without exception limits the scope of the study to the immediate streets of the development and assures the boards that all will be well.  What is missing is the macro problem with traffic.  People come here for the quality of our downtown.  The aggregate of all of these new projects is going to contribute to gridlock.  We need to be thinking about this problem and as far as I can tell we are not.

Finally, in the end, while zoning is critically important,  you cannot micro manage development through a telephone book of ordinances.  In the end we are dependent on the good judgment of our land use boards to insist that the scale and design of what is built enhances our communities.  The truth is we have not always been well served by our boards.  For decades they were the handmaidens of the real estate industry.  Mayor Yepsen’s appointments were a mixed bag.  There were some better people appointed but she also appointed some of the usual suspects.  We can only hope the our new mayor, Meg Kelly, will see the importance of appointing people who take preserving the beauty of our city as a critical factor in their decisions. 



Neighbors Take City Back To Court On Code Blue

The decision by the Zoning Board of Appeals to approve the Code Blue facility on Walworth Street drew the expected legal action from the neighbors.  The neighbors had previously successfully appealed the decision by the ZBA denying their challenge claiming it was filed too late. After granting the neighbors a hearing the ZBA then reaffirmed their original decision to allow the shelter. In a prepared statement the neighbors announced that they wanted to work with Code Blue and other stakeholders in the community to find an alternative location for Code Blue.

Here is the story from the February 6, 2018 Saratogian.    http://www.saratogian.com/general-news/20180205/saratoga-springs-board-sued-over-shelter-decision


Encouraging Beginning For Meg Kelly As Mayor

Newly elected Mayor Meg Kelly changed the format for the state of the city event this year.  Rather than simply give a speech she shared the event with the other members of the Council and the Supervisors.  Of particular importance was the substance of the presentations.  Rather than the usual platitudes or listings of alleged accomplishments, the elected officials identified the projects they hoped to complete during the coming year.  It is worth reading the Saratogian story as it lays out the many things planned.


I was also stunned in reading the minutes of the January 16 meeting.  The mayor gaveled it closed at 7:50!!!!!!  That is less than an hour.  These meetings under her predecessor would go on for many hours.  Such interminable meetings rather than adding to “transparency” were sufficiently boring as to discourage people from watching or attending  them. If you were interested in an item on the Public  Safety agenda, which is normally one of the last items, it was hard to expect anyone to keep paying attention as the hour grew late. The new Mayor has successfully expanded the consent agenda so that non-controversial items can be dealt with expeditiously and this has helped shorten the meetings dramatically.




Murphy Lane “Barn” Suit Settled. City Throws In Towel

The debacle of the barn “rehab” on Murphy Lane has ended.  The city has, for all intents and purposes, thrown in the towel.   The settlement requires the owner to make some minor changes.  RIP for the original barn.  The owner can now build a new three bedroom house on an alley.

Here is the original post.


Briefly, the project should never have been allowed.  A split Zoning Board of Appeals decision originally granted the variances sought by the owner, Jean D’Agostino.

To remind the readers of just a few of the issues:

  1. The lot was a mere 2500 square feet.  The minimum lot size for this zoning district is 6,600 feet.  So the owner was seeking a variance of a whopping 4100 feet or by percentage 62.1%.  There were six other major variances, most of them major.
  2. The lot faces a narrow lane.  Normally the primary houses are supposed to face the street on the other side of the lot and the back of the lot which faces the lane is to have secondary buildings like garages and sheds.  The lane is so narrow that it is impossible for two cars to even think of passing by each other.  This building will have three bedrooms.  One of the variances granted dropped the minimum on site parking spaces required from two to one.  What if the people living in this house own more than one car? And where will people visiting this house park?
  3. In her application Ms. D’Agostino promised to “rehab” the structure on the site.  The structure was called a barn but it was much smaller than the carriage houses that are often on alleys.
  4. In her application she offered that to take down the building would be harmful to the neighborhood.  In effect, she was promising the board that the existing structure would not be demolished.

The project was supposed to sit on its existing slab.  Once the owner got approval, without submitting new plans to the building inspector, the building was jacked up, the slab was removed, and the owner excavated a full basement.  The owner did this without bothering to submit revised plans to the building inspector’s office.  Contrary to her application and without again discussing it with the building inspector, the old structure was demolished and work began on a new house.  Due to the new basement it exceeded the height of the original structure.

It was only after the neighbors complained that the city issued a stop work order.  The order was based on the argument that it now required an additional variance because of the new height.  It is important to note that the stop work order was not because the owner, contrary to the application for the variance, had torn down the building.

This is just a taste of the problems of the site.  For those of you who are not familiar with this project earlier posts on this site are worth going back to.

Bait And Switch

Murphy Lane Bleeds On

Two For One

Jenny Grey On Murphy Lane

A Major Twist

Going back to the original approval of the seven variances, the board member opponents to the project were quite articulate in their arguments as to why it should not receive the variances.  The opponents pointed out how extreme the variances were.  They described them as “massive.”  One might legitimately have asked what the point of zoning is if something like this which is out of compliance to the extreme can be approved?

Consistent with the history of the ZBA, only one of the board members who voted for it offered even a word in response to the criticisms.  This was board chair William Moore who offered a sentence.  He described it as an example of in-filling.

The owner eventually sued the city to vacate the stop work order.

Some months later I had a meeting with Mayor Yepsen, her deputy, Meg Kelly, the two city attorneys, Chris Mathiesen, and a friend who is an attorney.  The attorneys were cautiously hopeful that the city would prevail in the suit.  They pointed out the central problem which was that the approval for the variances failed to include specific requirements that the promises made in the application had to be adhered to.  The attorneys were critical of the ZBA for their failure in this matter.  I agreed not to make a public issue of this at the time because I did not want to weaken the city’s case.

Chairman Moore is in the real estate business.    It was stunning when Mayor Yepsen reappointed Mr. Moore.  This man has been chair for close to a decade.  There are some variances that people of good will can disagree about.  This project was an egregious abuse of the power vested by the people of this city in Mr. Moore and the other men on the Board who voted with him.  It is, unfortunately, not an anomaly.

So the city settled.  I respect the city attorney, Vince DeLeonardis.  Apparently he felt that there was a good chance that due to the lack of compliance requirements in the variances, the owner was likely to prevail.  If they did the city would face the costs of the owner’s legal fees and the costs associated with remediating the weather damage to the partially built structure along with other potential liabilities.

The owner agreed to move the door from facing out on to the alley to the side where the parking space is.  The owner agreed to a specific type of siding and to cover the exposed basement area.

The Mayor has the authority to remove board members for cause.  In a more just world, the Mayor would use this authority, based on his gross ineptitude, to remove Mr. Moore.