On April 23rd the Zoning Board of Appeals at least matched if not exceeded the worse decision they have ever made when they granted approval for a project that will replace the scrap metal business on Franklin street with four houses. I will be publishing a very long post about this shortly. It has to be long because the ZBA managed to violate so many principles of proper planning and design in this one decision. It was, as we fishermen often say, a whopper. Thank god these people do not have the authority to site a nuclear plant in Saratoga Springs.
As part of writing my blog I visited the city’s Planning Office to review this project’s file. I have visited the Planning Office on quite a few occasions to review the files of particular city plots/addresses. In fact, I was there a week ago to look at file of a different plot.
For those of you not familiar with the Planning Office, they maintain a folder of blank Freedom of Information forms for the public to fill out. If you want to view the file of a particular city plot/address you simple fill out this form and they give you the folder to review at the counter. There is a real need for this convenience because real estate people and people in the building trades routinely need to review these files in order to perform work at these locations. Before Scott Johnson was Mayor, you didn’t even have to fill out a form. You just asked for the folder and they gave it to you.
On April 25th I visited the Planning Office and requested the four folders that make up the project in question. The clerk told me that I did not need the folders because all the documents in the file were available on line. I explained to the clerk that at the ZBA meeting on Monday night, a memo from the applicant was referenced and this document was not available on the city’s website. She asked me to wait. When she returned she told me that I would have to submit a formal FOIL request through the City Attorney to have access to the folders. I told her that I was confused. I reminded her that her office had FOIL forms for these kind of folders and that they were routinely available to review at the counter. She repeated that I needed to make a formal request to the City Attorney. I asked who had made this decision so I could talk to them. She told me that information would not be available to me.
Dear reader, why would someone denying me access to this folder feel the need for anonymity?
So I went to the City Attorney’s office. Vince DeLeonardis is the City Attorney. He is one of the nicest people you ever want to meet and as far as my uninformed self can tell, he is an excellent lawyer.
He was kind enough to give me a few minutes from his busy schedule. I asked him whether the city had changed its policy regarding documents in the Planning Office. I described my experience to him. He observed that technically all FOIL requests should go through his office. One thing that I am familiar with is FOIL. I told him that I understood this but that the fact remains that the Planning Office has its own forms and that it routinely grants access to the land use files for immediate examination in their office. He told me that he would be happy to assist me in getting the folder.
The problem, however remained. On what basis had I been denied access? He made some conjectures but basically did not know.
Unresolved was whether the city was going to continue to allow people to fill out the FOIL form at the counter in the Planning Office. There is a fundamental issue here regarding that over used word “transparency.” Was there going to be a uniform and consistent policy about access to records or was access going to be at the whim of unidentified staff in that department?
As regards the particular documents I was seeking, I was sure that with Mr. DeLeonardis’s attention the issue of access would be resolved expeditiously. Regrettably, I was wrong. After I formally made the request on the city’s website I received the standard response indicating the city had received my request and had twenty business days to respond. I then received an email from Trish Bush. She is Mr. DeLeonardis’ executive assistant and the official FOIL officer. Her email informed me that I would need to make an appointment with Assistant City Attorney Tony Izzo to have him review the files with me.
I wrote back to Mr. DeLeonadis:
From: John Kaufmann [email@example.com]
Sent: Friday, April 27, 2018 3:44 PM
To: ‘Vincent DeLeonardis’
Cc: ‘Trish Bush’
It is always a pleasure to spend time with Tony Izzo, but why can’t I just visit the planning office and ask for the files?
I have not yet received an answer to this question.
I have written to the Mayor about this incident. The last thing I want is for the city to require everyone to go through the burdensome and time consuming process of the regular FOIL for documents such as these. This involves filling out a form on the city’s website or writing the city a letter. The city is then required to respond within three business days acknowledging receipt of the request. They then have up to twenty business days to either provide the documents or indicate the reason for denial. People in the construction business in particular should not have go through that kind of delay.
The process used to access public records should not be arbitrary, though. The city needs to spell out what circumstances require going through the formal FOIL steps rather than the expedited process that has been commonly available in the Planning Office. They also need to indicate who will be deciding which steps must be followed.
I have written the Mayor asking that in light of my recent experience, if she will clarify what the city policy is for access to records in the Planning Office.
Of course the city in the end has the legal authority to put greater restrictions on people like me. Given the history of planning issues in this city and my coverage of them it is, in the end, not surprising that the staff in the Planning Office would be less than cooperative when dealing with your blogger.
From: John Kaufmann [firstname.lastname@example.org]
Sent: Wednesday, April 25, 2018 3:55 PM
To: ‘Meg Kelly’; ‘Vincent DeLeonardis’
Subject: FOIL standards
I have, on a number of occasions gone to the planning office to review the file of a particular plot. In fact, the planning office maintains blank FOIL forms so that people wishing to simply review files can quickly fill them out and review the folders conveniently on site. There was a time that they did not even require the filling out of a FOIL form. I have several friends who are builders and they told me they had never been denied a file when they visited the planning office.
As I explained to Vince today, I went to the planning office to review the Dawson file. Initially the staff person told me that because the plot had been the subject of a ZBA application that all the documents were available on line. I explained to her that at Monday night’s meeting the applicant had referred to the fact that he had submitted a response to a determination by the Public Safety Office that the design of the project would create hazardous conditions. This document was not on line. She then said she would check on it. When she returned she told me that I would need to formally submit a FOIL to the city attorney’s office in order to have access to the file.
I noted to her that given the past practices I would appreciate knowing who had decided that I would be denied immediate access to the file. She refused to tell me. The obvious question is that if the denial is legitimate, why would anyone insist on anonymity?
I then went to the city attorney’s office and Vince was kind enough to give me a few minutes to discuss this. He noted that “technically” all FOILs should go through his office. I told him I fully understood the law and that the city had the legal authority to insist on this standard but the reality is that in order to better serve the public and particularly builders and lawyers, the city as a matter of routine allowed for people to simply fill in the FOIL form in the planning office and get the folders.
I am not advocating that for purposes of consistency that all requests go through the city attorney’s office. This would be unnecessarily burdensome for the construction/real estate industry and the public at large.
On the other hand, accessibility of documents should not be at the whim of people in the planning office. Given the totally opaque nature of my denial, it is impossible to know if someone is being petty or if there is some legitimate reason for inconveniencing me.
If the city is no longer going to routinely make these plot folders available at the planning offices desk, I am requesting that your office establish a set of procedures that are publically available documenting under what circumstances folders regarding city plots must go through the city attorney’s office instead of being available in the planning office.
I would be grateful for response regarding this.