Saratoga Springs Politics

[JK: This post has been edited to include the courts decision]

In a decision dated November 9, 2020, Judge Ann C. Crowell has dismissed the lawsuit brought by the neighbors of Saratoga Hospital (the petitioners) against the city (the respondent) in their effort to block the Hospital’s expansion.

The neighbors challenged the city in court on a number of grounds:

The Decisions Were Arbitrary and Capricious

The petitioners argued changing the zoning for the parcel from UR-1 (Urban Residential) to OMB2 (Office Medical Business) was arbitrary and capricious.

The judge concedes that “Whether an OMB2 zoning designation is applicable to the future land use category of Institutional in the Comprehensive Plan is debatable.”

She then cites this precedent decided by the Appellate Division, Third Department in July of this year.  In New York, the Appellate Division is the court that would hear an appeal from a matter decided by a lower Supreme Court justice and the Third Department is the department covering Saratoga County and 27 other upstate counties::

A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful.

Matter of Troy Sand & Gravel v Town of Sand Lake

And this precedent:

Thus, when a [petitioner] fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld.

Matter of Youngsworth v Town of Ramapo

and:

All that is required is that the court be able to satisfy itself, based upon a review of all available evidence, that such plan [the comprehensive plan] in fact exists and that the municipality is acting in the public interest in furtherance thereof.”

Matter Skenesborough Stone v Village of White Hall

I am told that the standard “beyond a reasonable doubt” is common in criminal cases but highly unusual in civil cases. Unfortunately, for the plaintiffs, they were unable to establish an argument that met this demanding a standard. 

So while the judge acknowledged that there was enough merit to some of their arguments to be considered “debatable,” their claim apparently crashed against the rock of having to be proven true “beyond a reasonable doubt.”

The Designation of the Parcel Was Spot Zoning

The plaintiffs alleged in their suit that the designation of the parcel in the zoning map was “spot zoning.” In her decision, Justice Crowell noted:

Spot zoning is defined as the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of said property to the detriment of other owners.

Matter of Rotterdam Ventures, Inc. vs Town Board of Rotterdam

The justice noted that:

In evaluating a claim of spot zoning, the courts consider whether the rezoning is consistent with the comprehensive plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, and the recommendations of professional staff.

Judge Crowell

Essentially the court’s decision in evaluating the claim came down to this:

Fundamentally, and relevant here, if a zoning amendment is consistent with the municipality’s comprehensive plan, it is not spot zoning.

Dodson v Town Board of Rotterdam

As the designation of the area in question was designated OMB2 in the comp plan their argument was dismissed.

The Hard Look Standard

The petitioners alleged that the city failed to consider the adverse impact allowing the use of the parcel for a large medical building would have on the area. This is what is meant by taking a “hard look.”

The State Environmental Quality Review Act (SEQRA) requires that a set of questions be answered as to the effect on land use decisions.

The justice wrote:

Judicial review of a lead agency’s SEQRA determination is limited to determining whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration of the basis for its determination.”

Justice Crowell

The court’s inquiry is whether there is a rational basis for the decision or whether it is arbitrary and capricious.

Justice Crowell

Judge Crowell noted that the city had the benefit of and considered the PUD application submitted by Saratoga Hospital for the development of an office building on the parcel. The PUD application provided extensive studies of traffic, water, archeological impact, etc. At the time, following its review of the PUD the planning board did a SEQRA review and determined there would be no adverse impact of the proposed PUD.

The long and the short of it is that Justice Crowell found that the city’s SEQRA review and Full Environmental Assessment Form were sufficient to determine that the city had met the requirements for a “hard look.”

Segmentation

The petitioners contended that the city “impermissively segmented” the SEQRA review.

Justice Crowell wrote:

Segmentation is the division of the environmental review of an action in such way that the various segments are addressed as though they were independent and unrelated activities, needing individual determination of existence.

Justice Crowell

This addresses the problem where in order to hide issues of impact that a large project might entail, a developer tries to mask the issues by breaking up the parcels of a project into separate applications.

The judge identified that the 2015 PUD application made clear the overall plan the hospital had.

She noted:

…respondent (the city) has adequately and rationally determined that a later review will be no less protective of the environment than a speculative review with no clearly defined project in existence.

Justice Crowell

The justice accepted the city’s representation that when the hospital submits its plans for their project the city will be able to address any potential environmental issues it may have.

The Corruption Argument

The plaintiffs alleged that the decision was “unlawfully tainted” by campaign donations made to elected officials by the hospital and its supporters.

While the receipt of campaign contributions casts a cloud over many aspects of government decision making at all levels of the government, the receipt of campaign contributions does not create an appearance of impropriety necessitating the annulment of respondent’s determination.

Justice Crowell

Interestingly the justice wrote:

Petitioner has affirmatively stated that their claim is not based upon the General Municipal Law or the City Ethics Code.

Justice Crowell

It appears that they admitted that this request to have the city’s decision vacated was not based on any actual law.

Violation of the Open Meetings Law

The petitioners asked that the decision be vacated because two of the members of the City Council discussed the amendments to the zoning map privately in early December of 2019. They claimed that this was a violation of the state’s Open Meetings Law.

The Open Meetings Law requires that a quorum of a public body cannot gather without proper prior notice to the public, public access to the gathering, and a record of what transpired at the gathering.

As two Council members do not constitute a quorum, this would not constitute a violation.

It Aint’t Necessarily Over

While the court dismissed their suit, the plaintiffs have a right to appeal so this case may not be over.

The rejection of the proposed charter by the voters of our city was the inevitable result of the deeply flawed leadership of those who crafted the charter and managed the campaign for its adoption.

In the final days before the election they posted a video on their face book page, It’s Time, Saratoga, that revealed more about themselves than the charter they hoped to pass. I will use the acronym of their website (ITS) to refer to them in this post.

The target of the video was Finance Commissioner Michele Madigan and its message was that she is the local incarnation of President Donald Trump.

The video utilized footage from an earlier attack ad produced by her opponent during the 2015 campaign for the Commissioner of Finance position.

Like their websites, the ITS video shows a high level of technical skill reflecting the considerable amounts of money the advocates were able to raise in their effort.

The reader may well ask, what a meanspirited attack on Commissioner Madigan has to do with convincing the voters of the merits of their proposed charter?

The answer is “very little.” This video was a self indulgent expression of the visceral anger the ITS people have toward Commissioner Madigan. It was meant to hurt and humiliate, not to educate.

Commissioner Madigan is not the only public figure who has been a target of this group’s enmity, but it is safe to say she enjoys the status of being at the top of their list.

When you think about it, putting this video up on their website as their last appeal to the public to adopt the charter is kind of crazy. It unfortunately is, however, just a more extreme example of their general campaign tactics.

A Cult?

“CommonSenseSaratoga.com” is the flagship website of the campaign for charter change. Readers of this blog may recall that I wrote about the fact that this website was anonymous. They subsequently posted a list of the “founders”. Oddly the list has since been removed but I still have a copy:

• Julie Cuneo and Ron Kim, Co-Chairs
• Jeff Altamari*
• Gordon Boyd*
• Alexis Brown
• Ann Bullock*
• Sarah Burger (Chair of the city Democratic Committee)
• Ellen Egger-Aimone
• Pat Kane*
• Bahram Keramati*
• Bill McTygue
• Mark Pingel
• Bob Turner*
• Beth Wurtmann*
• Joanne Yepsen
• *Indicates citizens who served on the 2017 Charter Commission.

As you can see many of these people were on the 2017 Charter Commission appointed by then Mayor Joanne Yepsen .

What is most striking is the fervor these people have for charter change. Now I think their charter is flawed, and I voted against it, but if it were passed I don’t think it would signal the collapse of Saratoga Springs.

If the reader visits the social media sites created to advocate for charter change, however, they will find a narrative that borders on hysteria. It portrays Saratoga Springs as though it were in the last days of Rome: gross financial mismanagement, votes for sale to political bosses, the city’s infrastructure on the verge of collapse, our water contaminated to the point of being a health risk.

What is really disturbing is that I think that at least some of them may really have believed all of this. It would explain their determination and their ruthlessness.

Frustrated that their warnings were not being heeded they became increasingly desperate to alert citizens to the perceived danger. Thus the video of Commissioner Madigan.

I have observed this in the past with other groups involved in social movements. They love the camaraderie. They love the excitement of the conflict. They feed off each other’s passions.

Any external criticism is dismissed as the efforts of heretics.

Internal discussion is constrained by the need for unity.

Their Own Charter A Victim Of Group Think

We still do not know who actually wrote the charter. I assume it was a subset of the group listed above.

Their own need for unity served to undermine the crafting of their charter.

What they should have done was to circulate the draft to the public to get feedback before finalizing it. This would have helped them avoid mistakes and prepare themselves with real arguments to defend the final version. Regrettably for them, they did not.

I would also note that the combative nature of their campaign was exacerbated by all the festering fights and intrigues these people have been involved in with the existing members of the Council and other public figures over the years. In my first draft of this post I tried to catalogue this history of animosity and conflict. It was a rabbit hole I decided not to climb into.

One thing is certain with a cult-like group like this, they will be back.

They would do well to heed the advice given in the Daily Gazette editorial (11/13/20): “It’s time for opponents of the commission form of government to honor the wishes of the majority of voters and stop putting charter change on the ballot.” https://dailygazette.com/2020/11/12/editorial-in-saratoga-springs-learn-to-work-within-the-current-system/?fbclid=IwAR0lN8mhWfn_8ZXM8vCwT0syxVna4MB5EP0hXJPgKV13DJV3Oip6g9QPRyM

[JK: This is a comment that Sarah Burger, the chair of the Saratoga Springs Democratic Committee recently posted on “What’s Going On Saratoga”]

The absentee ballots have been counted. The pro-charter people fell further behind (199) when the absentee votes were totaled. The unofficial total showed the proposed charter failed by 1337.

My friend, Commissioner of Finance Michele Madigan, has decided not to run again for public office next year. While Commissioner Madigan often struggled with public relations, there was no one more devoted to our city. I know from experience that she spent countless hours doing her job. Her hard work was reflected in the superb shape our city’s finances were in during her term. For over eight years she kept city taxes flat while helping the city achieve one of the highest bond ratings for a municipality in New York State .

What many people aren’t aware of is that she went well beyond the normal responsibilities of her office to work on important projects.

It was her effort that was critical to the establishment of the solar array on what had been the city’s landfill. It now generates electricity representing 40% of the city’s energy needs.

She was instrumental in overhauling the city’s website including publishing budgets and making possible the on-line payments of taxes and utilities. Her work was cited by the Empire Center and the Times Union as one of the three best websites in the Capital District.

She created a Smart City Commission to assist with technology projects. We now have public wi-fi in city hall and in Congress Park.

Her project to deploy a city wide fiber optic network with SiFi Networks is moving forward and expects to have its ground breaking in April 2021.

She advocated for using properties being foreclosed on to provide affordable housing that was developed by Habitat for Humanity and Rebuilding Saratoga.

She had the city partner with Spa State Park in the construction of a safe, fenced in dog park.

These are just some of her legacies.

Below is the release announcing her decision.

As with many of Wendy Liberatore’s stories in the Times Union the one published recently about city furniture being stored behind the city’s ice rink is pretty mundane and boring and has none of the drama and scandal the headline and opening paragraphs would lead the reader to anticipate.

The story bore the following headline:

“Saratoga Springs Guarding Its Pile of Discarded Furniture”

The subheading reads:

“When asked to get a look at what the city put out, a Times Union reporter was asked to leave”

While this has a certain dramatic, Nancy Drew quality to it, given Ms. Liberatore’s history, it is hardly surprising that she is not welcome to areas not designated as “public.”

For those who didn’t get beyond the headline (which I realize Ms. Liberatore did not write) and her opening paragraphs one would be left with the impression that something shady was going on. After all it would be reasonable to think why wasn’t the reporter allowed to take a look? If one actually read the whole story, as with others Ms. Liberatore has written, they would discover that the there is nothing actually in the story to support any kind of misdeeds. It is not a coincidence that these stories often have as their sources members of the charter change group. Readers will remember the story of Bill McTygue and Ann Bullock allegedly going to the Attorney General, Dillon Moran was the source of the city water non-story, and a story about alleged misspending on the restoration of city hall extensively quoted Ron Kim and Bob Turner.

So here is the background to this latest non-story:

When the city rehabbed city hall they transferred the existing furniture to temporary storage structures located behind the city’s ice rink. A significant number of items had been damaged in the fire and were covered by insurance. Other furniture had simply suffered the abuse of time. Some of it had been the property of the courts.

Subsequently, the city purchased new furniture for their offices. In the meantime employees from the city departments and the local court offices have been visiting the site and going through the inventory deciding on which items they wanted to keep.

The city’s plan was to allow time for departments and the courts to decide what they wanted to keep and then either to donate what remained to local non-profit groups or discard what was no longer usable.

Apparently Bob Turner and Pat Kane learned of the inventory and this week (the first week in November) decided to go out and inspect the area. When they arrived they were asked to leave. Turner left but apparently Mr. Kane resisted. DPW staff ended up calling the police who escorted Mr. Kane off the site.

Some time later, Wendy Liberatore, the Times Union reporter, arrived but the DPW staff on site refused her access.

According to Ms. Liberatore’s story, Department of Public Works business manager Michael Veitch was on site and explained to her:

‘…the furniture needs to be reviewed by the departments, and court staff to determine if they have a use for it.’

“If there is a use it will be kept. After the process it can be offered up to nonprofits or discarded. Much of the remaining furniture appears to be relatively old and would probably be considered depreciated to the point of having no present value.”

Veitch to Liberatore November 5, 2020

In her story, Ms. Liberatore reported that the city had allegedly spent $324,269.00 on furniture. Ms. Liberatore had FOILed the city for all invoices associated with the city hall restoration. As the reader can imagine, there was a motherload of invoices. The reader will pardon my skepticism but as someone who has closely observed these people I think it is likely that Ms. Liberatore depended on the pro-charter people to come up with conclusions about the information rather than independently reviewing all these materials herself. It remains to be seen how inflated the numbers being thrown around here are. The charter change proponents do not have a great record when it comes to accuracy. As documented on this blog, information published on the Common Sense Saratoga site has been not only shown to be untrue but easily debunked. I would urge the readers to be cautious about Ms. Liberatore’s figures.

Ms. Liberatore reported that Pat Kane had “perused” the inventory. According to Kane, he “discovered” about one hundred boxes of records.

The city had in fact stored a large number of boxes of documents in one of the tractor trailers during the restoration of city hall. These were simply stored while the offices were being refurbished. These boxes were not being thrown away. I was told that they are being reviewed to decide what needs to be kept and where to store these. Some of these papers will need to be located where they can be accessed while others being kept to meet legal requirements will need to find a home that is both secure but does not take up the most accessible and valuable space at city hall.

Below are photos taken on Friday of some of the furniture that still remains at the site.

Governor Cuomo’s attempt to get rid of the Working Families Party has failed. The WFP needed 130,000 votes on the presidential line to maintain its ballot status. It garnered 284,515.

Other third parties were not so fortunate. Neither the Green, Independence or Libertarian party captured over 50,000 votes and will no longer have ballot access.

Votes Tallied As Of 11:00 PM

Yes = 5,186

No = 6,324

Short fall for yes vote 1138

3,237 mail in ballots have been received so far. The advocates for the charter would need to get approximately 70% of the mail in ballots to win. This is highly unlikely but it ain’t over til it’s over.

Common Sense Saratoga is the flagship website for the advocates of the proposed charter change that will be on the back of the ballot tomorrow (November 3, 2020), and they have been a major promoter of false narratives in this campaign. Their most recent attempt is to try to persuade Saratogians that the rehab of city hall has been an excessively lavish expenditure. They falsely claim that the city has chosen to buy expensive furniture and has made other profligate expenditures while laying off police and firefighters.

In an earlier post I have documented that the decisions and expenditures of rehabbing city hall predated the pandemic shutdown.

I thought it would be helpful to visit city hall now that it is again open to the public and see what the rehab actually looks like.

As the pro-charter people focus much of their disinformation campaign on the expenditures associated with Commissioner Michele Madigan and the Finance Department Office, my inspection focused on this area.

Commissioner Madigan’s office actually takes up only a small part of the space allotted for the Finance Department which includes workspace for a number of department employees and IT as well space for the public to come to pay their tax bills.

I first looked at the chair at the Commissioner of Finance’s desk. I thought if there had been lavish spending this chair in particular would be a good example of that. Perhaps given the accusations coming from the pro charter people, it might even be throne like.

Here is a picture of that chair.

A bit of a disappointment I thought.

And here is the Commissioner’s work area.

A nice poster of horses but where are the Picasso and Van Gogh paintings?

Below is the entrance to her office. This glass wall was part of the original building that the architects successfully urged the city to maintain.

Fortunately most of the original panes (see below) have survived.

Due to limited space the Commissioner’s office also serves as a conference room. This is the conference table.

Below are examples of the features that have made our city hall greener and will be energy savers now and into the future. These are state of the art cooling and heating devices.

Note the rug. As part of their disinformation campaign the pro-charter people have been circulating on social media that the rug cost $17,000.00. You will see in the photos and videos that the rug covers the floor of all the Finance Department offices, some 2,200 square feet and cost $7.73 per square foot. It has a twenty year warranty. Given the heavy use of the area it required high quality material.

The Deputy Commissioner of Finance and the person who manages the telephone system and the mail for all of city hall share a work area in this outer office.

This is one of the two new public bathrooms on this floor. The old bathrooms were poorly lit funky places.

Behind this wooden wall is the office of Christine Gillmett-Brown, Director of Finance. (Note the carpet)

These are the offices that handle people’s tax payments. The outer office is where payments are received. (Note the carpet)

This is a view of the outer office where the money is received. The architects constructed the barrier for security reasons given that payments are handled here. (Note rug)

This is the beautiful, original ceiling for this office. This ceiling had been hidden by a drop ceiling. When the architects had the drop ceiling removed they found the stored papers of New York Senator Edgar Brackett (1853-1924). Senator Brackett was a major player in local and state politics. The Wikipedia entry about him is well worth the read.

This is a short video of the kitchenette for the staff.

The chair of one of the staff members in the outer office. They liked their original chair and declined a replacement.

View of the public side of the Finance Office

Small room for staff to meet privately with citizens who have questions and concerns.

Closet

This is on the top floor of City Hall. A lovely window in the Planning Department’s office area.

Directory In Elevator

New Council chambers.

This picture shows the video screen in the Council chambers. Note the ducts high on the wall. When the chambers were filled by the public it was usually insufferably hot. Those near the pathetic excuse for a window air conditioner got little relief while the noise of the unit made it hard to hear. Hooray for greener and better heating and cooling.

Two views of the rehabilitated music hall on the top floor of City Hall (where the fire began).

This opening is in the music hall. It provides access to a small kitchen. The city expects to rent the music hall for events similar to the way it rents the Canfield Casino.

The architects saved this old “water elevator.” It is located just outside the music hall.

This is part of the tile floor at the entrance to the music hall.

These are some of the improvements that now make city hall Americans With Disabilities Act (ADA)compliant. New elevators and newly designed hallways that have ramps incorporated into them.

Video of Commissioner of Finance’s Office

Video of Area in front of Finance Director Christine Gillmett-Brown’s Office (more carpet)

Video of office shared by the Deputy Commissioner of Finance and the telecommunications/Mail manager for city Hall (With a little unintended chatter in the background)

Video of Music Hall

Based on my tour of city hall, it appears to me that the rehab was thoughtfully done. I did not find anything that suggested excess. Those of us who frequented city hall over the years and those who have seen the “before” pictures cannot help but be struck by the improvements. The city hall belongs to the people of Saratoga Springs. These office spaces do not belong to individual commissioners. Others will occupy these spaces in the years to come. We are fortunate that the citizens of our city take great pride in its character and beauty and history. The fire that severely damaged city hall gave us the opportunity to make it greener and to redesign it to address long standing issues like where to put the police department and how to provide the city courts more space that the state required as well as making it ADA compliant.

It is just another example of the pro-charter people trying to turn what has been a laudable achievement into an alleged scandal.

I urge people to visit their city hall and decide for themselves.

The Common Sense Saratoga website is the flagship site for the pro-charter group. The latest disinformation campaign on this site is a twelve alarm warning, alleging that the city has dramatically increased water rates. The warning is false.

Here is a sample from the pro-charter website which includes shrill videos touting their allegations.

Are you shocked by the increase in your water bill–like so many in Saratoga Springs? It’s really time to put professionals in charge of City Hall. First, the Rec Center’s funding is cut to balance the budget. Now, this. When we look at other cities in the region, none of going through the type of funding cuts we are.

Common Sense Saratoga

The reality is that some residents’ bills have gone up considerably and the city did increase water rates in March but only by 2%. There were no water rate increases in 2018 and 2019 and the fund balance and overall health of the water budget is very strong.

This is a link to the resolution that increased the water rate.

So how to account for an increase in water bills beyond 2%?

Reftelis is a consulting firm. Working with Duke University they have been analyzing water consumption during the pandemic. Here is a link to their report. What they found was that residential consumption was up and commercial consumption was down. The drop in commercial water use is not surprising when you consider how the hospitality industry for example has been devastated by the pandemic.

On the other hand there have been multiple factors that have increased residential consumption. For one thing, during the pandemic people have been spending much more time at home resulting in greater water consumption. In addition this summer was extremely dry verging on drought conditions so people have been watering their lawns and gardens more. The fact that water bills are sent out quarterly can also contribute to sticker shock.

So if a resident’s water bill has gone up more than 2% then it can only be due to greater consumption (or a faulty meter which could account for a particular individual’s bill but not for widespread increases).

In this video from a news story on WRGB, Commissioner Scirocco explains the issues.

https://cbs6albany.com/news/coronavirus/covid-19-brings-unexpected-rise-in-water-bills

A Matter of Ethics

I can understand the quandary facing people who think the proposed charter is an improvement but who are fully aware of the profoundly dishonest nature of the campaign that is promoting it. How do you support changing the city’s government while maintaining your integrity by distinguishing yourself from these people?

One thing would be fundamental, I would never donate money to the people who maintain sites like Common Sense Saratoga. If I agreed to appear in a video on their site I would insist on including a statement that I disavowed many of the tactics on that site.

The only person I am aware of who was both a supporter of charter change and who was critical of the proponents’ tactics is Barbara Lombardo. On her personal blog during the 2017 campaign she both advocated for the passage of that charter while expressing dismay at some of the tactics employed by its advocates. She is opposed to this year’s charter change proposal.