Recently, staff from the Denver Post traveled to New York City to protest in front of the skyscraper owned by hedge fund Alden Capital. The editor of the Post had resigned over on-going Draconian staff layoffs.
In the years since Alden Capital acquired the Post in 2010 the paper had gone from a staff of over 200 to less than 100. The newspaper has been ordered to layoff another 30 employees by July.
The company’s records are not available because it is privately owned but a study done by a professor of journalism has estimated that they have been generating a 17% profit.
So what is the local link? This hedge fund also owns the Saratogian. The Saratogian has also been decimated. While Joseph Phelan does a very good job on the stories he covers, unfortunately the paper no longer has the resources to properly cover the city and the county.
In a May 7 Times Union story, Wendy Libertore brought out the darker side of developer John Witt. Ms. Liberatore doesn’t have an unblemished record on accuracy and she definitely likes to go for the throat. In the case of Mr. Witt, he offered up a large target for her.
Witt wants to build a large development of 31 homes he calls “Cedar Bluff” on 111.6 acres on a steep ridge overlooking Saratoga Lake. According to Ms. Liberatore’s story, the neighbors are alarmed about the potential impact of removing at least half the trees on the property. The neighbors along with the Saratoga Lake Association and the Saratoga Lake Protection and Improvement District believe Witt’s proposal could “…destabilize the ridge, cause flooding due to an excess of storm water run-off, erode 9P below, and adversely affect the health of the lake.” They also fear the runoff will compromise the water table that they depend upon for their homes.
It is unclear just how many times Witt met with Ian Murray the chairman of the Stillwater Planning Board, but at a March 28 meeting of the Planning Board Murray apparently referenced meeting with Witt. His statement was recorded in the minutes of the meeting. According to Liberatore’s story, he actually told his fellow board members and the public that he had met privately with Witt and the town engineer.
In classic Wendy Liberatore style, she offers that the “Open Meetings Laws do not prohibit planning board chairman [sic]from meeting privately with an applicant. It would only be prohibited if a quorum of the Planning Board was present at a closed-door meeting.” This is inaccurate on so many levels. To begin with, if there were a quorum present, he would not be meeting privately since others would be present. The area of the law she is referencing has to do with the fact that if a quorum of the board assembles, the law considers that to be a de facto meeting and therefore requires that the public be allowed to be present. In fact, the law precludes such a gathering without the proper notices being published prior to the event.
She does, however, quote Jim Cashin, an opponent of the project and an attorney, who accurately characterized the meeting between Witt and Murray as a violation of the New York State General Municipal Law as an ex parte contact. The planning board is a quasi judicial body that bars inappropriate contacts between applicants and members of the board. It would be similar to a plaintif in a civil suit meeting privately with a judge. Ex Parte contacts are strictly prohibited. Sometimes they are hard to avoid. For example, an applicant might accost a board member at a supermarket. If that happens, the board member is supposed to advise the board at the earliest possible time of the details of the event.
According to Liberatore, Witt has accused his critics of “spreading lies.”
Liberatore reported that residents were concerned about an incident Witt was involved in in 2014. She reported that to provide a view for a development he was constructing he clear cut an area in spite of the fact that his plans had not included this. Code enforcement secured a stop work order but the trees were gone before Witt could be served. Attorney Cashin told Liberatore that Witt claimed there had been a filing mistake because he had originally planned to do the clear cutting.
Liberatore contacted Witt for the story. He told her he would not speak “to the trashy newspaper” regarding his project. He told her he would only speak to a reporter willing to cover the story in a “positive light.”
I understand that Mr. Witt builds some beautiful homes. Apparently that skill set does not translate into PR skills.
It is important to understand that the current Zoning Board of Appeals is really Mayor Joanne Yepsen’s legacy. During her two terms in office she appointed 5 of the current 7 members.
While she made some good appointments of people who are independent of the real estate industry, she also reappointed former Mayor Scott Johnson appointee Bill Moore as chair. As readers may recall Bill Moore played a significant role in the approval of the Murphy Lane debacle as well as the Witt Downton Walk project among others.
Consider also Yepsen’s appointments of Oksana Ludd and Brad Gallagher as alternates. As it turns out, both work for the law firm Barklay Damon. This is a large corporate law firm with offices across the state. It employs approximately two hundred and seventy-five attorneys. The Barklay in the name is William “Will” Barklay who is the Republican deputy minority leader in the New York State Assembly.
Here is an amusing tidbit from his Wikipedia page:
As chairman of the New York State Republican Assembly Campaign Committee, Barklay set in motion—and insists in the legality of—the so-called “Edward Hennessey Stalking Incident” in which on behalf of Barklay’s chosen candidate Dean Murray, a Democratic opponent, Edward Hennessey,was surveilled in his home and a GPS tracking bug affixed to his automobile, to which Mr. Barklay expounded: “One of the methods of doing that is tracking where the guy is staying at night.”
According to a reliable source, Barklay Damon’s practice includes lobbying services and they have represented corporations fighting Super Fund clean ups.
In the true spirit of these kinds of practices, they are not partisan when it comes to donating to politicians or in who is associated with their firm. Senator Neil Breslin who is a Democrat and represents Albany is associated with their firm.
I have previously posted information about Mr. Gallagher’s area of law. Here is a description of Ms. Ludd’s practice from the Barklay Damon website.
“Oksana Ludd concentrates her practice in commercial real estate and various types of commercial lending and other finance transactions. Oksana has extensive experience representing clients in all aspects of commercial real estate development including acquisition, construction, financing, and leasing. She handles complex financings and is actively engaged in commercial mortgage and asset-based secured loans on behalf of lenders and borrowers.”
Ms. Ludd and Mr. Gallagher joined with Johnson appointees Keith Kaplan and Adam McNeil to approve the extraordinary variances granted the owner of the S. Franklin Street scrap metal business located across the alley from Chairman Bill Moore’s home which was described in a previous post.
For some of us it is extremely frustrating that with all the appointments that Mayor Yepsen had the authority to make, that we are still saddled with a current ZBA majority that votes for the kind of projects we saw approved on S. Franklin Street.
Unfortunately Meg Kelly recently appointed Mr. Gallagher to a regular board position for a seven year term.
I received a response from the city regarding my unfortunate experience at the Planning Department office. As readers may recall, I had requested the folder for the development proposed for the metal scrap yard located across an alley from the ZBA Chairman. Rather than the usual procedure of filling out a FOIL form at the counter and receiving the file, I was told to make a formal request to the city’s attorney. In a previous post, I published my email to the mayor expressing concern about the incident. Below is City Attorney Vince DeLeonardis response and my email back to him.
Mr. DeLeonardis’ response needs to be put in context. As the city’s Attorney he sees his role as defending the city. As I have repeatedly noted, I like and respect Mr. DeLeonardis and his response was what I expected. I do think that his argument suffers from the limits that defending a poorly thought out policy necessarily entails. As always I leave it to the readers of this blog to make up their own minds after reading the emails.
My hope is that in the privacy of their offices, the Mayor and her Attorney will reconsider the need to establish a consistent and transparent policy for handling requests for property folders maintained in the Planning Office.
John,
In response to your e-mail below, as well as your April 27th e-mail and your May 2nd blog, please allow this to confirm that you have neither been denied access to records maintained in the Planning Office nor been provided with “special status”.
At the outset, it is the policy of the City that all requests for publicly available records are to be made through a FOIL request. There are, as you correctly indicated, multiple methods for accessing and completing such requests.
My office receives and processes hundreds of FOIL requests annually which can be, and often are, voluminous and time consuming. In order to expedite the process for files maintained in the Planning Office and Building Department, we have allowed for certain FOIL requests to be completed at the counter and, in most cases, the records can be reviewed at the counter. If, however, the file is extensive, or if it contains documents which staff determines need to be reviewed prior to release, the FOIL will be responded to through my office.
Allowing certain FOIL requests to be submitted and the records reviewed at the counter is not intended to circumvent the process but, rather, to expedite it whenever possible. Moreover, the expedited process has everything to do with the nature of the request and absolutely nothing to do with the individual making the request. In other words, and contrary to your suggestion, neither you nor anyone has “special status” when it comes to accessing publicly available records.
You then questioned, in your April 27th e-mail, as to why it was necessary to view the files with Tony as opposed to simply reviewing them at the Planning Office. As indicated above, the requested documents are contained in four separate files and, as such, it would be difficult or less practicable to review them at the counter in the Planning Office. For convenience, we intended to allow the files to be reviewed in the City Council room, however, any time files are removed from the Planning Office or Building Department and handled by members of the public, a city employee will accompany the file for what I trust are obvious reasons. Again, this has everything to do with the nature of the request and absolutely nothing to do with the individual making the request. This is the same procedure that has been followed in the past for other FOIL requests.
Be assured that access has not been denied and the records are (and have been since April 27th) available for your review. Please contact my office to schedule a time which is convenient for you to do so.
Best regards,
Vince
Vincent J. DeLeonardis
City Attorney Saratoga Springs City Attorney’s Office 474 Broadway – Room 7 Saratoga
Springs, New York 12866 (518) 587-3550 ext. 2414
From: John Kaufmann []
Sent: Friday, May 04, 2018 3:33 PM
To: ‘Vincent DeLeonardis’; ‘Meg Kelly’
Cc: ‘Michele Madigan’; ‘peter.martin@saratoga-springs.org’; John Franck
; Skip Sciroco
Subject: Response To Email Re FOIL Standards
Thank you for your prompt response to my email regarding recent FOIL issues.
First let me note that I have no question that if the FOIL requests I make are covered by FOIL that your office will make sure that I have access to them. With respect, however, there are a number of reasons for my skepticism regarding the city’s handling of this recent matter and several of your arguments.
First, in the past there has never been a reference to the physical limit of the files that can be viewed at the counter in the Planning Office. The now infamous barn “rehab” on Murphy Lane was something of a tome. Not quite the size of the novel War and Peace but nevertheless, substantive. The files concerning the Bonacio Moore Hall project had considerable heft as well. They were both also more controversial than the Dawson project yet I had ready access to those documents through the expedited FOIL process available in the Planning Office.
More troubling was the manner with which I was denied access to the Dawson files when I visited the Planning Office. Had someone come out and explained the reasons you laid out in your thoughtful email I might have found it somewhat odd but that would have been the extent of my reaction. What I found disturbing was that not only was no one available to explain to me why I was being required to make application to your office, I was not even allowed to know who it was who had made the decision to require this. I will not conjecture as to why the person preferred anonymity but I would expect any objective observer would have shared my understandable concern that this kind of opacity was unnecessary and troubling.
There is also the outstanding question as to future access to these files. I expect that the construction people for Mr. Dawson’s project will, in all likelihood, be visiting the Planning Office to check the files for information. Are they going to have to go through your office and will they only be allowed to view the files in the presence of Tony Izzo? That is a rhetorical question.
I know you and the Mayor are very busy and I am not asking you to respond to this email. I would just offer that this kind of thing can be handled better and that it would probably be worth seeing this as a “teachable moment” and adopt some procedures to handle access to documents in the Planning Office in a more elegant and consistent manner.
Many of us asked could the ZBA possibly act more irresponsibly than it did in the case of the Murphy Lane “Barn Conversion”? The answer, as demonstrated by their actions at their April 23rd meeting, is a resounding “yes”!
Here is ZBA board member James Helicke summing up just how egregious this project is. This short clip is well worth watching.
Spa City Recycling, previously known as Figelman & Son Scrap Metal, has been something of an open sore on the city’s west side. It is located at 77 South Franklin St. and the property runs down Cobb Alley. The operation predates zoning so it has been able to continue in spite of the noise and traffic it has generated.
In 2012, Anthony Dawson’s company, Moto Holdings, purchased the company from the Figelman estate.
More recently, Mr. Dawson constructed a new facility in the town of Milton, and this winter he ceased operations at the Saratoga Springs site. He alleges that he has just closed it for the winter.
Recently Mr. Dawson announced that he wanted to develop the Saratoga Springs site by constructing four houses there. He alleged that if he did not receive the radical variances he needed that he would reopen his operation there.
Mr. Dawson is seeking the same kind of variances that the notorious Murphy Lane barn “conversion” received which are truly stunning. The following variances are for three of the lots on Mr. Dawson’s property. A fourth lot is only slightly larger.
So the variance for the front of the property is for just a 6 inch setback, instead of 10 feet. This is a reduction of 95%.
The minimum lot size in the UR3 zone where these houses are to be located is 6600 square feet. Three of the buildings will be 2,500 square feet. This is a reduction of 62%.
The minimum set back from the rear is supposed to be 25 feet. Three of the buildings will have setbacks of 7.5 feet. This is a reduction of 70%.
Minimum lot width is 60’. Three of the four lots requested will have a width of 50’. This is a reduction of 17%.
A principle building can cover 30% of the property in this zoning area. This project will be allowed 50% coverage. This is a increase of 40%.
The Chairman of the Zoning Board of Appeals lives across the street
William Moore is the chairman of the Zoning Board of Appeals. He hired Sonny Bonacio to build a house for him on a plot of land across the alley from what was then Figelman’s scrap metal operation. Sonny has come before Mr. Moore so many times that many of us think he deserves a seat with a plaque. Many readers may remember the controversy over the ethics of hiring Mr. Bonacio which was covered by the Times Union.
Because of the revised ethics standards adopted by the city as a result of Chris Mathiesen’s advocacy, the proximity of Mr. Moore’s home to the Dawson project required Mr. Moore to recuse himself from the proceedings.
Our city has a very high standard regarding recusal for which we should be proud. The board member may not vote on the issue of course but in addition the board member must do more than abstain from the discussion but must physically remove themselves from the room. The idea is that the other members of the board should not be pressured by the person’s presence.
This, however, did not discourage Joan Salmon, Bill Moore’s wife, from being the first speaker during the public comment period to address the Board.
I happen to like Bill Moore. He has always been warm and friendly in his dealings with me in spite of my many criticisms of him. Still, as chair of the ZBA, one would have expected him to be scrupulous regarding the spirit of recusal and having his wife address his Board is not consistent with this standard.
More troubling was her statement to the ZBA. She pointed out to the board two other properties with similarly jammed designs. The problem with her comparison was that in the case of one property, it predated established zoning and in the other it is in a different district of the city that has zoning that allows greater density. I do not think it is unreasonable to assume that Bill, her husband, was aware of what she had written. At the risk of appearing old fashioned, I do not think that the chairman of the ZBA should be associated with submitted comments meant to deceive his colleagues.
An Unseemly Rush and Reckless Indifference To Proper Design And Oversight
This project was problematic from the beginning. Normally a development with four houses would be required to go before the city’s Planning Board for site plan approval. Their plan would be the subject of careful scrutiny for everything from rain runoff to traffic safety. The ZBA has neither the expertise nor the temperament to provide this kind of oversight.
Unfortunately, the four parcels pre-existed current zoning and are exempt from Planning Board review. Board members Cheryl Grey and James Helicke, recognizing this, particularly as regards the traffic issues, attempted to refer this project to the Planning Board for advisement which the ZBA has done before. Keith Kaplan who was acting as temporary chair dismissed this request and it was obvious that he had the support of the other board members present. Referring this to the Planning Board would have significantly delayed the approval that even the most casual observer could see was their priority.
Density? That inconvenient 2,000 pound guerilla
As noted above, Mr. Dawson is trying to drop his houses on virtual postage stamps. By any measurement, the scale of the variances being requested is extreme so the innocent among us might have expected this to be a central part of the discussion. Not with this ZBA.
At an earlier meeting acting chair Keith Kaplan actually reassured Dawson that he had no problem with the density of this project. Even for this ZBA, this was a shocking statement. A friend with extensive experience on land use issues offered the following. He told me that it is one thing for Mr. Kaplan to say that such extreme variances may not disqualify their approval but to dismiss any concern about them ignores the fundamentals of zoning. There would have needed to be recognition of the problematic nature of these variances and some sort of discussion about what compelling issues would overcome the obvious problem with them.
If you endure, as I did, the deliberations on this project you will see that there is almost no discussion on this matter. A video of the meeting is available on the city’s website.
James Helicke and Cheryl Grey tell their colleagues that they cannot approve the variances because they are excessive.
Keith Kaplan tells the Board that because there are other small plots in the area and because the project is near the UR4 zone which allows greater density, he is for the project. There is a sort of Kafkaesque quality to this. I say that because there are not many plots as tiny as these and those plots pre-exist the zoning. I find it particularly a bridge too far for him to argue that because these houses will be located “near” a zone that allows greater density that the board can dismiss the density of the zone where the houses are actually located. This gives the reader some sense as to how the ZBA manages to approve pretty much every variance request that comes before them.
Keith Kaplan was the only member voting to approve the variances who felt the need to even acknowledge that there was an issue.
Basic Design Considerations Are That Alleys Should Only Have Secondary Buildings
If you travel down the alleys in Saratoga Springs you will observe that the vast majority of structures on the alleys are garages, storage buildings, and small workshop type buildings. This is because this was how our streets were conceived. The residence faces the regular street while the garage in the back accesses the alley. Alleys are really to accommodate ancillary buildings. For one thing, there is really no room to park a car on our alleys without impeding traffic (the photos graphically illustrate the problem). Imagine what these alleys would be like if they had homes lining both sides.
None of the board members supporting the variances to allow these homes to be built on Cobb Alley acknowledged this issue let alone addressed it.
The Public Safety Department Has Documented That The Design Poses A Danger: Who Cares?
The proposed structures in this project have only six inches of setback from the alley they face. James Helicke and Cheryl Grey strenuously opposed the project because as designed people would be backing out of three of the garages directly onto an alley with their vision obstructed so they could not properly see oncoming cars or bikes. The walls of the garages make proper sight lines to observe on-coming traffic impossible.
Having refused to seek advice from the Planning Board, Keith Kaplan asked planner Susan Bardon to ask the appropriate expert in city hall to provide an analysis.
Mark Benaquista, who works for the Public Safety Department, wrote to the ZBA through Ms. Bardon warning that the project as designed was a public hazard.
“The project as designed presents a significant safety concern. The garage design does not provide critical lines of sight for either future residents, or for vehicles, bicyclists, or pedestrians traveling along the alley. Residents will be backing out of their garages directly into the travel way with no ability to see oncoming traffic. The design also does not provide for needed Stopping Sight Distance warning for traffic traveling along the alley. Traffic will be traveling down this very narrow pathway and suddenly might encounter a car backing into their path and have no warning or space to avoid hitting the car.”
The letter goes on to discuss other traffic related problems with the design. It advises that the applicant consider other designs to address this problem. Here is a link to the full document
Now the innocents among us might have expected that Ms. Barton, having gotten the unfavorable advice contained in the memo, in addition to forwarding it to the Board prior to the meeting, would have advised the Board at the meeting to take appropriate action to mediate the problem. She is the City Planner after all. One might also have expected that the acting chair, Keith Kaplan, would raise the need to address these problems, if not as the first order of business, at least sometime in the meeting. If you expected any of this to happen, you would be wrong.
Instead, acting Chairman Keith Kaplan, finessed the issue. The memo from Public Safety suggested that by combining the driveways the project could redirect the cars on site to a different location. In correspondence from the applicant which is not accessible on the city website, Mr. Dawson refused to make this change. So all Mr. Kaplan did was to ask Mr. Dawson if he would consider changing the design as suggested by Public Safety. He already knew what the answer was. Dawson said no and that was it. It was as though the warning from the Public Safety Department did not exist. Kaplan moved the meeting on. I know the readers of this blog will find this hard to believe but the video is available on the city website.
I should indicate that the Public Safety letter also advised that the narrowness of the alley would make even turning the vehicle as needed when backing out of the alley a problem. The applicant did address this by showing a video he had made that simulated backing out of the proposed garage. Of course Mr. Kaplan and the other supporters of the application ignored the fact that in the simulation there was no plowed snow that would have narrowed the alley.
It was instructive that the applicant conveniently ignored the problem of the sight lines. His video demonstration had the cars maneuvering around parking cones.
Neither Mr. Kaplan nor Ms. Barton insisted that the Board take action to insure that the safety concerns as raised by the Public Safety Office be addressed.
The only Board members who acknowledged the danger of the design were James Hellicke and Cherry Grey.
McNeil Lectures On How Safe Backing Out On To A Road Is
Board member Adam McNeil did offer a defense late in the meeting.
He explained that he had driven around the alleys of the city and had found many garages with no set back. He then dismissed the whole premise as ridiculous. He explained that it was common in parking lots to have one’s car sandwiched between two SUVs. He counseled his fellow Board members that all that was required was to very cautiously back up slowly until you could see beyond those vehicles.
I am almost embarrassed to point out the fallacies in Mr. McNeil’s analysis to the readers of this blog, but here they are. Pretty much all the garages on alleys that he is referring to were built prior to the establishment of most of our zoning regulations. They are grandfathered. As far as I can tell, no land use board has ever approved a proposal to have a garage abut the street on an alley.
One of the reasons that we have established our zoning laws was out of recognition that many earlier land use decisions were unsafe. So rather than continue to construct buildings in ways that were hazardous, we established laws to insure that future structures would be safer.
As for the SUV example, let’s begin by noting that one cannot compare the rate of speed cars in parking lots travel as compared to cars driving down streets. There is also the danger of assuming that everyone is going to exercise the caution and skill in observation exercised by Mr. McNeil. I think we all can think of the reckless drivers we encounter more than we would like. There is also the problem of people who may be distracted by problems such as unruly children, elderly persons who may not see well or react quickly, or drivers who are simply reckless. It is the responsibility of land use boards to minimize these risks, not create them.
It is also critical to acknowledge that Mr. McNeil and his colleagues are establishing a very low bar for a standard. I guarantee the readers of this blog that the city’s Planning Board would never have accepted this. Apparently, when the ZBA evaluates building on alleys we now have a new standard. One can be assured that future applicants will use this decision to support similar designs. How will the ZBA be able to oppose such requests?
Potential Toxic Pollution And Magical Thinking
The resolution to approve these variances was drafted by Cheryl Grey and Susan Bardon. It included language that would have required that the site be fully evaluated for the presence of toxic materials.
In his application Mr. Dawson had been required to submit documentation of any recorded spills or other indicators of pollution. Oksana Lund is an alternate board member appointed by Joanne Yepsen and she is an attorney whose practice includes the real estate industry. Ms. Lund noted that there were no recorded spills or accidents for the site as indicated in the original documentation. She asked that the language that would require a full site assessment be removed from the resolution.
She received support for her arguments from Keith Kaplan, Adam McNeil and from Brad Gallagher.
James Helicke could not contain himself. He pointed out that this facility was established in 1929 and operated for decades in an environment that was lax to non-existent regarding the dangers of toxic materials. For decades there was nothing to keep them from handling heavy metals which are considered to be highly toxic now.
Ms. Oksana was sure that there were other agencies out there that would insure the public safety. It was noted that before materials can be removed from a site they must be tested.
I asked Ms. Barton why they had included that requirement in the resolution. She told me that it insured that the city would be informed of potential hazards before excavation began.
Keith Kaplan rationalizes why there is no need to assess the property for potential hazards
The Usual: This Is The Only Financially Viable Plan For This Land The Applicant Claims!!!!
One of the standards that must be met in order to get a variance is that there is no other alternative available to do whatever the applicant wants to do. Those who follow this blog will remember that when Sonny Bonacio wanted to rehab Moore Hall (The Pink Palace) he told the ZBA that the cost to remove Moore Hall made any other options for the property unfeasible. Today Moore Hall is gone.
In the case of this project, Mr. Dawson claims that he and his architects looked at every other option and that none of them worked economically. In addition, he alleged that the operation on the current site which had been closed down this winter would reopen if he were not awarded all his variances.
Common sense suggests that there is the real possibility that he has permanently closed the current Saratoga Springs site. Access to the property is limited and the size of the property itself makes an efficient operation problematic. Given that he has opened at a new location in Ballston Spa, it would seem likely that consolidating the operation on one site would be more efficient. I fully admit that while there is logic to my argument, in the end it is conjecture.
Now again, the innocents among us might have expected the Board to grill Mr. Dawson on all of this. They might have been expected to question his assertion that this was the only viable design.
They might have, but they didn’t.
The Newest Appointment By Mayor Kelly Appears To Be Quite Unfortunate
Chris Mathiesen donated his time for many years to the land use boards. He has shared with me, on a number of occasions, his strong belief that the city is better served if the members of the land use boards are made up of people who are not associated with the real estate industry. It is understandable that when you make your living serving in that industry, your predilection is towards policies that involve maximizing the value of the property to the owner.
Mr. Gallagher is a corporate attorney who was appointed as an alternate to sit on the ZBA by Mayor Joanne Yepsen. He was recently promoted to a seven year term as a regular member by Mayor Meg Kelly. I looked him up on line. Mr. Gallagher is an attorney with the law firm Barklay Damon. His description on their site (http://barclaydamon.com/profiles/Brad-M-Gallagher )notes:
Negotiated favorable settlements for owners, general contractors and subcontractors in multi-party construction cases involving issues with roofing, siding, fire suppression systems and excavation work.
Mayor Yepsen also appointed Oksana Lund as an alternate to the ZBA. Observing Gallagher’s and Lund’s support for granting the variances to Mr. Dawson pretty much demonstrates the validity of Chris’s assessment.
Hopefully, Mayor Kelly will take into account Chris Mathiesen’s perspective when making future appointments to our land use boards.
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 [john.kaufmann21@gmail.com]
Sent: Friday, April 27, 2018 3:44 PM
To: ‘Vincent DeLeonardis’
Cc: ‘Trish Bush’
Subject: FOIL
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 [john.kaufmann21@gmail.com]
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.
Bob Turner, former chair of the now-defunct Charter Review Commission, has filed another FOIL request for access to the digital images of the ballots cast in last November’s election in light of a recent court decision involving a FOIL request in Essex county. In the case of Kosmider v Whitney NY Supreme Court Justice Stanley Pritzker ruled that electronic ballots are public records which can be obtained through a FOIL request.
Turner told the Gazette that he and Gordon Boyd would count the ballots. Given the fact that there were over 9,000 votes cast, they will have their work cut out for them. Their hope is to find discrepancies which could be the grounds for going back to court to ask for an official recount. Their charter change proposal was defeated by 10 votes. Judge Nolan denied their last request for a recount citing a “lack of factual support” for their claims of election irregularities.
The Times Union article by Wendy Liberatore covering these developments contains some disturbing factual errors. Towards the end of her piece she writes:
“Most of the officials on the commission vehemently opposed any charter change and publicly campaigned against it, defying state law that requires elected officials remain neutral in a charter referendum”
Aside from the fact that the Mayor and Commissioner Mathiesen also did not remain neutral but actively campaigned for the charter change , there is no such law that prohibits any of these elected officials from getting involved in these referendums.
Liberatore goes on to incorrectly state that the elected officials sitting on the new Charter Commission “will have the opportunity to raise their own salaries and extend their terms in office.” Also not true. All proposed changes will be voted on by the public in November. No change can go into effect without voter approval.
At the April 23rd meeting of the Charter Review Commission Chair and City Attorney Vince DeLeonardis addressed Ms. Liberatore’s inaccurate reporting. His thoughtful observations are worth watching.
There have been a number of articles written looking at how newspapers are reacting to having a growing presence on the web. Apparently editors monitor the number of hits their reporters’ stories generate. I have been struck by both the sensationalistic character of Times Union reporter Wendy Liberatore’s pieces and the frequency of errors of fact in these stories. Perhaps this is the kind of reporting that attracts more hits but the paper’s indifference to sound journalistic practices is discouraging and as Vince points out not helpful in fostering an intelligent discussion of the issues by the public.
I was struck by the differences in how this story was reported by the other main newspapers that cover Saratoga Springs. Here are links to all three. Liberatore’s factual errors come at the end of her lengthy story.
Today (Thursday, April 19, 2018) I visited the planning office to look at the folder for a property in my neighborhood.
The owners of this property received a variance to build a very large garage beside their home. In their application they asserted that the new building was just for parking cars and storage on the second floor. The plans for the project included nothing about water and sewer connections or a bathroom. After the approval of the variance and without submitting revised plans, they dug a trench and ran water and sewer to the property for a bathroom. When the neighbors, fearing that the purpose of the new structure would include some kind of living space, notified the city of the violation, the city issued a stop work order. I am not exactly clear about the dates, but the owner then tried to get approval to put the bathroom on the second floor. The planning office rejected this for obvious reasons.
I was provided the file but I found it very confusing. I found the letter advising the owner that they could not put the bathroom on the second floor, but I could not find the revised architectural drawing showing the bathroom on the first floor (there was a separate drawing of a bathroom with a description stating it was on the first floor but all the document had was a stamp as to when it had been received).
I asked a clerk if someone could help me understand the file. A short while later someone came. He was Patrick Cogan who is the Assistant Building and Construction Inspector.
I should note that Steve Shaw, the head of that department has kind of disappeared. His email is not longer valid. When I inquired about where he was I was told he is “on leave.”
I cannot speak highly enough about my encounter with Mr. Cogan. He was very patient with me. He carefully walked me through the documents.
One of my concerns was over the thorny issue of what constituted a violation of inhabiting a building not zoned for that purpose. I could find nothing in the zoning ordinance that precluded someone putting a bed, couch etc. in such a structure. My layman’s logic was that a violation could only occur if someone was actually caught staying there. If this was the case, it would seem that enforcement would be a major problem.
Mr. Cogan explained to me that in addition to the zoning ordinances, there is something called the International Residential Code. He produced an enormous book with the code. The standards for residential housing were adopted by the state of New York and the city is subject to them. He showed me the relevant section. It defines what a habitable space is. Since this is a garage, it cannot contain a habitable space:
[RB] HABITABLE SPACE. A space in a building for living, sleeping, eating or cooking. Bathrooms, toilet rooms, closets, halls, storage or utility spaces and similar areas are not considered habitable spaces.
Mr. Cogan explained to me that if they were to find a bed and other amenities in the garage, they would consider it a violation of the building code. It would not be necessary to catch someone actually living there.
We also discussed the issue of permeability. The significance here is that there must be enough permeability to absorb rain that may fall on the lot so that it does not cause problems for neighbors. The same property has been granted a number of variances and it appears that much of the ground on the lot will be covered. As a lay person, it looks like there could be problems absorbing the rain that may fall on this lot.
Mr. Cogan went into a lengthy discussion about the complex questions associated with permeability.
The thing that most impressed me was that Mr. Cogan was obviously concerned about protecting neighbors in general who might be adversely impacted by construction. I felt really good when I left the planning office. I wish that everyone in the planning department reflected his attitude.
Mayor Kelly Hires Lynn Bachner As Her Executive Assistant
After leaving the planning department, I ran into Lynn Bachner. Ms. Bachner had been the Deputy in the Finance Department under both Commissioners Matt McCabe and Michele Madigan and will now serve the Mayor as Executive Assistant.
Ms. Bachner, who holds a law degree, was an outstanding deputy. She was famous for the many hours she put in as deputy. Her extensive research made her knowledge of city finances encyclopedic. She was universally admired in city hall.
I continue to be impressed by Mayor Kelly’s management skills. The city is fortunate to have Ms. Bachner back.
Having praised Ms. Bachner, I would note that Michael Sharp who is her successor in the Finance Office, is also a dedicated and very gifted administrator.
Here is a stunning number. According to the minutes of two years of Zoning Board of Appeals meetings, they have approved 105 of the 107 variances brought before them.
That number alone should tell you about how little the ZBA is concerned about the importance of adhering to the city’s zoning requirements or the concerns expressed to them by the neighbors of projects.
The neighbors of Murphy Lane met with Mayor Meg Kelly, city attorneys Vince DeLeonardis and Tony Izzo and city planner Susan Bardon.
The neighbors were very impressive. They were articulate, courteous, and well informed. They documented a litany of abuses by the ZBA and the building inspector Steve Shaw. Many of these have been documented on this blog. As just one recent example, the neighbors noted that work done on Murphy Lane included construction done that was inconsistent with the plans that had been submitted to the city. In this case, the city was aware that the owner had changed their design and was also aware that no revised plans had been submitted let alone approved. So much for accountability.
As documented on this blog, the poster child of inappropriate variance approval was the barn “rehab” on Murphy Lane. This project violated the most basic concepts of appropriate design. It involved building a house on a lot that was a fraction of the minimum area required. You name the requirement, ZBA approved a variance for it. The setbacks from the alley and the neighbors were radically reduced. Parking? Cut in half. The worst thing was that it was on a narrow alley. Only secondary buildings were supposed to be allowed on alleys. The ZBA decision to approve this project was split but nevertheless, these variances like pretty much every variance, were granted.
So to clarify things I asked the attorneys, the city planner, and the Mayor whether they considered this kind of approval a serious problem. Mr. DeLeonardis declined to answer. He noted that he was required to defend the city boards. I responded that the legal questions on this property had been decided in an agreement between the city and the owner and I was not asking him about the legality of it but the appropriateness in terms of good planning. He declined to respond repeating what he viewed as his responsibilities as the city’s lawyer. I asked the Mayor and she declined to discuss it. Not surprisingly, Susan Bardon who works with the ZBA also did not respond.
Mayor Kelly did offer some thoughts on the ZBA as it relates to the charter. It is unclear how much state law supersedes the city’s ability to change the ZBA. The charter commission is considering shortening the terms of the ZBA (and maybe some other boards), limiting the number of terms allowed, and requiring approval by the full city council of mayoral appointments. The Mayor was particularly emphatic on the latter. This was impressive to me. Politicians are normally jealous about any encroachment of their authority. Currently, the Mayor has the sole authority to appoint the members of the land use boards.
I am not discouraged by the Mayor’s reticence to fully respond. I believe that she was thoroughly engaged in listening to the neighbors and sympathetic. I think the Mayor is not comfortable speaking off the cuff and prefers to consider issues carefully before offering public comment. My only concern is that all of this may be lost given all the other major issues on her plate. She indicated that she planned to get back to the neighbors so we shall see.
The city received five bids for crafting the Uniformed Development Ordinance (UDO).
Calfee Strategic Solutions. $295,000.00
Camiros, Ltd. $154,040.00
Duncan Associates. $125,000.00
Clarion Associates. $279,285.00
Town Planning and Urban Design. $249,979.00
None of these firms are located in the capital district
Interestingly, Duncan Associate’s proposal indicated it would work with the existing UDO document. If they had responded to the previous RFP which was to complete the work done by Behan Planning and Design they would have been the sole bidder.
The city has $48,000.00 remaining from the original grant from the state. I wonder where the balance of the cost will come from?
Saratoga Springs Politics 