This spring Michele Madigan joined with John Franck and Joanne Yepsen to vote to send a “text amendment” to the Planning Board for an advisory opinion (Analsys Of Full Text Amendment). The text amendment was drafted by the Saratoga National Golf Course in a third attempt to move their plans for an expanded golf resort forward this time by getting a change in the text of the zoning law to re-define “clubhouse” to encompass their expanded plans for development on their property.
Commissioner Michelle Madigan, by her own public statements, characterized the text amendment that she voted to send to the City Planning Board as flawed. She has told the public that she would send her comments regarding said flaws to the Planning Board, presumably informed by her own constructive criticism and questions. Unfortunately, this never happened. But why, one might ask, would an elected official send something that she deemed to be flawed to the Planning Board for advisement in the first place? Logic would suggest that one would either (a) draft the text so as to accurately reflect what was wanted before it went to the Planning Board, or (b) at least send a separate statement to the Planning Board, making clear what the perceived difficulties in such a document are. Commissioner Madigan did neither, leaving the Planning Board to either divine her reservations about the proposal, or simply proceed without critical comment of an official whose vote will help determine the future of our greenbelt.
Commissioner Madigan appeared to believe that the problems posed by the ludicrous proposed re-definition of a “clubhouse” (a one hundred room hotel, a retail building, and a set of “guest lodges’) would be balanced by a large donation of land by the developer. While many of my friends saw even this as unacceptable, I remained open to it.
Unfortunately, as the process unfolded there appeared to be no legal way to ensure that the land donation could be realized. Making approval of the “clubhouse” text amendment contingent upon the granting of an easement appears to risk violation of something know as “contract zoning”. The courts have historically frowned upon such a quid pro quo arrangement between a developer and a municipality. If an easement citing specific acreage on the SNGC property were included in the text amendment it could be seen as spot zoning (changing the zoning for a specific property Resource To Understand Spot Zoning) which would make it subject to legal challenge. Thus the plan to get SNGC to agree to “save the greenbelt” by designating specific easements for perpetuity has become snagged in a legal briar patch .
I have always liked and respected Commissioner Madigan. Based on my experiences with her, I suppressed my growing unease with this development proposal in light of her continual assurances that I would be fully satisfied with the outcome.
Tom Newkirk and Kevin Bette are the principals in the company that owns Saratoga National Golf Course. At the last Planning Board meeting on July 22 I engaged them in conversation about what their plans were for achieving an easement. It became apparent that at this late date, they had no plan. When I asked about the golf course being included in the easement, Mr. Newkirk told me that he doubted his investors would be happy with that.
I followed up with an email exchange with Kevin Bette. Note the date, July 24. Here is his email in its entirety.
From: Bette, Kevin [KBette@firstcolumbia.com]
Sent: Friday, July 24, 2015 9:59 AM
To: John Kaufmann
Cc: Thomas Newkirk; Toohey Michael
Subject: Re: Easement
John, It was a pleasure to meet you the other night at the City Planning Board meeting. I thank you for your interest in our property and for your passion in seeing the Community developed in a sustainable manner. We very much share your passion for Saratoga and would be delighted to meet with you and some of the other concerned citizens in an effort to explore the best possible way to utilize our property for the long term benefit of the City.
As I mentioned, we are in the very early planning stages, therefore, we don’t have any formal legal work completed for you review. What we are trying to do is listen to the various government boards and interested groups and formulate a solid long term plan for the large tract that we purchased and operate our highly regarded business from.
It would be helpful if you, and other concerned Citizens, could share with us your vision for our vast property so that we can incorporate any of your suggestions that have great value. Also, if you play Golf it would be very helpful to get your insight on how we can make the golfing experience better and reflect the incredible recreation heritage of our great City.
Reading that, I became alarmed. I asked to meet with Commissioner Madigan. At our meeting she assured me that she was unwavering in her commitment to the issue of easements that would protect the public’s interests in preservation of the greenbelt. I asked her if she would submit a statement to my blog so that everyone would know where she stood. In light of all the work being devoted both by those who support the project and those who oppose it, her position might potentially prove to be key. Since Commissioners Scirocco and Mathiesen opposed the project, if Saratoga National could not meet her requirements, the project would be dead.
When I received her statement I was stunned (Madigan Statement on SNGC). Rather than the very strong language she had been using with me for months, it contained virtually no substance.
The current text being proposed by Saratoga National Golf Course would in effect, grant them their “clubhouse” while deferring the question of public access/easement until the site plan special permit review. There is absolutely nothing that provides any guidance about how much land would be involved in any easement proposal, nor what the terms would be.
A memo from Attorney Toohey to the Planning Board reveals how important it is to clarify any easement questions before SNGC gets its desired zoning change. In the memo, and I paraphrase here, Toohey notes on behalf of his client that any easement protections would end if his client no longer had a golf course. So as far as SNGC is concerned, they seemingly have already decided that, whatever they may end up putting into the easement proposal (after they get their “clubhouse.”), they have no interest in assuring its permanence.
This city has a long history of entertaining dubious assurances offered by developers. The idea that the city should, in effect, grant Saratoga National Golf Course their “clubhouse” and hope that, when the site plan comes, the plan will be generous to the city and to its public begs credibility and, at a minimum, calls for skepticism.
Here is the current Kafka-like wording from the text amendment:
“Retention of permeable land and public access shall be a criterion considered (my emphasis) by the Planning Board in granting of a Special Use Permit and/or Site Plan Review.”
To appreciate this sentence, the readers should know that the original wording for this had the word “may” and attorney Toohey changed the word to “shall” as a result of his conversations with the city Planning Office. This “concession” by Toohey in light of the fact that any easement will only be “considered” gives one some feeling for the Alice in Wonderland world in which this is all taking place.
I therefore emailed Commissioner Madigan the following:
Your statement is quite vague about what your expectations are regarding the scope of any easement and how and when instituting any easement would be accomplished. This is not surprising given that the entire process is so completely unorthodox and any explicit addressing of an easement comes with legal risks.
In fact, it is quite unlikely that it will be possible to construct any firm and enforceable language that would define the meaning and the physical scope of the “public access” (whatever that may mean) as part of the text amendment to our zoning law. The solution proposed by Saratoga National Golf Course is to have the definition they seek for their “clubhouse” approved now and have the Planning Board consider the issue of “public access” later when they get to the site plan/special permit process. My question to you is this:
“Is it acceptable to you to wait until the site review/special permit process to determine and implement any easements.”
Commissioner Madigan responded in an email that she saw no need to answer my question and that she is comfortable with her original statement (Madigan No More To Say). As I noted earlier, I have always liked Commissioner Madigan. I am simply at a loss to understand her apparent faith in Saratoga National Golf Course. I hate to think that she may become the vote that gives away the city’s greenbelt.