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Stuyvesant resident Will Pflaum, the owner/operator of Glencadia Dog Camp, has received a decision from acting Columbia County Supreme Court Justice Patrick McGrath in the first of his five lawsuits against officials in the Town of Stuyvesant—and it looks like he’s won a solid victory in this round... The decision can be read in full as a PDF by clicking here.
As part of his long-running dispute with the Town, Pflaum filed a lawsuit challenging the local Zoning Board of Appeals (ZBA) and its Enforcement Officer’s “determination to revoke his Class 2 Home Occupation permit.” McGrath’s decision finds:
As a matter of statutory construction and based on the case law cited above. the Court finds that the ZBA’s determination was made in violation of lawful procedure and was affected by an error of law.
Based on procedural errors, McGrath then orders and adjudges that
the [ZBA’s] determination is annulled and the permit to operate as a Class 2 Home Occupation shall be restored.
The ZBA is further instructed, if it still wishes to pursue the noise complaints, to address only those narrow complaints filed against Pflaum which the Board had skipped over in its eagerness to overstep its mandate and revoke Pflaum’s permit entirely. (If ZEO Gerald Ennis had wanted that done, he would have had to go to Town Court, where the burden of proof for him probably would have been a lot higher than before the ZBA, which Pflaum has characterized as highly politicized.)
“One down, four to go,” commented Pflaum in an email, adding:
The four other cases Pflaum alludes to above are:
Noted architectural photographer (and Greendale resident) Peter Aaron has a must-see suite of photographs of the Olana landscape on view at their Coachman’s House gallery through late October.
Aaron spent some three years on the project, “wandering Olana’s hills and surrounding landscapes” to capture the site during different seasons, weather and lighting conditions. He writes that before becoming a Hudson Valley homeowner, he
... considered Frederic Church an almost expressionist painter who exaggerated all he saw. Now, having lived down the hill from Olana for twenty-five years, I recognize that Church’s swirling, flame-colored clouds, twisted trees, river reflections, God-rays, fog, and deeply saturated colors are in evidence for every visitor to see.
Walking the landscape at dawn or dusk is an experience that’s always full of surprise and beauty. There are moments when a light snowfall blankets the carriage trail but not the woods, creating serpentine shapes through the trees. In the fall, a tube of fog forms over the Hudson River at dawn, disappearing before full sunlight comes.
“I think it’s the first time I’ve seen a modern perspective on Olana,” said Joan Davidson at the opening which coincided with the region’s Heritage Weekend, a concept with which she is credited.
Does the City of Hudson take New York State’s Freedom of Information Law seriously? The answer seems to be a definite yes for the City Clerk, but no for most other prominent officials, as we’ll see below. But first, a bit about FOIL and how to use it...
FOIL is a powerful tool which any citizen can use to obtain government records; and you don’t need to be a lawyer to use it. Any reasonably-described request to any agency of State or local government requires a timely response.
You can, for example, send an email to the general email of your municipality, putting it to the attention of the “Records Access Officer” with the subject “FOIL request,” followed by a brief description of what you’re seeking in the body of the message (say, the minutes of the Planning Board for the past year). Include your name, address, email, and whether you want the response electronically or on paper.
You don’t have to explain or justify why you might want these records, so long as your request isn’t overly-broad. Which is to say: don’t ask for all of your town’s records for the past century... though you can describe your request broadly enough to include things that might pertain to the topic, but which you might not know exist because they are buried in some official file.
Agencies have five days to either (a) cough up the records, (b) tell you there are no such records, (c) tell you it will take a little time to gather them, and give you a date no more than 20 days later to do so, or (d) deny the request specifying one of the few grounds allowed under the law. (An agency can be anything from a Zoning Board of Appeals to the Building Inspector’s office to the Town Board.) An agency can’t just ignore a request, even if it does not like it or doesn’t have the records.
If you do want to get to know more about the legalities of FOIL, the State maintains a handy web guide, and the Committee on Open Government’s Bob Freeman is generally easy to get on the phone to address citizen queries. But again, it really isn’t necessary to become an expert to use FOIL effectively.
Now: On May 9th, this site sent a message to the City of Hudson which requested in part:
a copy of any contract(s) with GAR Associates which was entered into by the City following the Council's March 2011 vote (Resolution 6) authorizing the Mayor to do so, and any official correspondence or amendments related to the terms or ongoing oversight of that contract to or from GAR. [...]
(This FOIL request applies to all sub-agencies of the City; please if necessary share it with those departments or officials who may retain records responsive to this request.)
The admirably-responsive City Clerk, Tracy Delaney, responded almost immediately, providing access to the GAR contract and other documents. She also indicated that the request also had been forwarded to the Assessor and Mayor.
Upon reading the lengthy GAR contract speedily provided by Delaney, I noticed that it required GAR to provide the Common Council with “monthly reports.” On the 11th, I followed up with Delaney to make sure that the City’s response to my FOIL would include those reports. (These are of special interest, since various City officials have professed to have been broadsided by GAR’s abrupt switch of all local bed and breakfasts from residential to commercial tax classification.) Delaney again promptly replied that she had provided what she had in her own files, and that:
The Council President does maintain his own files and he has received your FOIL request.
It has now been a good deal more than five business days since Council President Don Moore, Assessor Garth Slocum and Mayor Bill Hallenbeck have been in possession of this Freedom of Information Law request, but none of the three has responded—in apparent violation of that unambiguous State law, which states:
Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...
Emails were sent to Delaney and Moore bringing the situation to their attention; Delaney again responsively replied that she had re-forwarded the request to Slocum and Hallenbeck. Their lack of response thus far seems to bespeak either a lack of interest in following the law, or a reluctance to provide the records, or perhaps both.
More to come on this, once the City responds... or doesn’t.
UPDATE #1: Following a firm nudge at the City, I have now received a response from Garth Slocum indicating that he has begun work on responding to the request.
UPDATE #2: Don Moore also finally responded last week that he had “made a mistake” in assuming that the City Clerk’s response relieved him of the responsibility to respond himself. (This, despite the Clerk’s clear indication by email that her files were separate from his, and that the request had been brought to his attention for a separate search.)
UPDATE #3: City Attorney Cheryl Roberts called at week’s end to say that they Mayor’s office was also now working on the the request, and that she is assembling all of the materials, but that they would not be ready until the middle of next week. Roberts agreed that the City’s FOIL procedure has become unnecessarily fragmented, claiming that she “tried to address this in 2006” without success.
I’ve raised that problem with Moore and other local officials before. Under the balkanized “system” instituted during Scalera’s reign, citizens effectively became obliged to play a guessing game about which City department might have records responsive to their requests, and then badger each department head separately.
As an agency under the State’s definition, the City needs to have a Records Access Officer responsible for overseeing the search for documents, even if that officer delegates the task of finding them to individual department heads. Otherwise, the intent of FOIL to open up government to the public is foiled, as delays, denials, clarifications and appeals proliferate for what is meant to be a single, direct process. Hudson is classified as a “small city,” but it is really not that big, and thus really shouldn’t treat its agencies as far-flung fiefdoms in the way that Albany or NYC might need to.
Something I’ve never seen before in Columbia County... Checking out the new Hannaford market near Bell’s Pond, I was greeted by four parking spaces reserved for hybrid cars. Nice—though this seems sure to rankle those shoppers who get all their news from FOX and 810 AM out of Albany. (Sure enough, a grumpy-faced 50something guy in a V8 truck defiantly snagged one of the Low Emission Vehicle spots just as I was pulling out.)
The store seems smaller than Hannaford’s next-closest location in Red Hook, but is plenty big for this neighbor’s purposes, and was jam-packed on opening morning.
Note to bargain hunters: Hannaford employees were handing out a raft of in-store coupons, including one for $5 off any purchase and another $2 one for locally-grown products, on Saturday. While a supermarket is not likely to displace the local farmers’ markets in many locavores hearts, it was good to see a decent amount of organic and vegetarian options on the shelves.
It looks like someone’s attention was grabbed by Carole Osterink’s post taking the City to task for suffocating the bases of trees with mulch or dirt. Mounding up material above a tree’s roots can indeed result in both rot and disease. Yesterday, en route route to grab a beer aboard the Spirit of Hudson, a friend and I noticed that someone had made “moats” around all the treetrunks in the Waterfront park.
While the effect looks a bit like some children were playing with mashed potatoes with their index fingers—and is still somewhat problematic, since water can now pool in the “moat” rather than running off—this at least proves that someone pays attention to local blogs... Whether it’s the DPW or a vigilante gardener is anybody’s guess. Meanwhile, it was also nice to see that several sycamores have been planted in the park; though these can grow enormously, they make excellent urban trees. Check back in about 15-20 years to see just how magnificent these trees (two of which I planted in front of Curtiss House back in the early part of the last decade) can be.
The Spirit of Hudson, by the way, is now serving from 5-10 pm most nights when they’re docked in Hudson, making it the first time in the 14 years I’ve lived here that the public can order a drink at the Waterfront. They are also having a soft launch this weekend of a pontoon boat ferry back and forth across the river, leaving Hudson on the hour and Athens on the half-hour from 5 to 10:30 pm. Check their full schedule, here, for details.
A visit to the Crossroads brewery and dinner at the waterfront café in Athens (now being run by Diane Rodriguez, who is familiar to many Hudsonians from her time at Nolitas) seems in order.
Dennis McEvoy of Rogerson’s in Hudson is joining forces with Bart Slutsky, a collector and dealer of rare, vintage and antique hardware, fixtures and more. Slutsky is now in the process of moving a dozen or so vanloads of handles, locks, latches, lights, pulls, tools and more from his warehouse in Westchester.
Only a small fraction of Slutsky’s inventory is on display at this point, but each piece that’s been unboxed so far is impressive: durable, useful and refined treasures from the past century or more. It complements Rogerson’s own remaining stock, as well as the region’s remarkable building stock. Renovators should find many solid matches or upgrades for existing pieces in older homes, as well as new ideas for home improvements based upon the high-quality engineering of the past.
This really seems like an ideal fit for Hudson, and a fitting new chapter in Rogerson’s storied local history. (I’m going back for some heavy-duty chrome latches later today.)
(Or, The myth of the helpless mayor)
When complaints about a local assessor reach critical mass, the inevitable question arises for elected officials: Why don’t you fire him (or her)?
The officals’ answer is typically mumbled, and murky. “It’s complicated,” comes the sheepish reply. “Our hands are tied,” they dissemble. “Gee, we’d love to help, but the assessor has [X] years left on his/her term.”
But what is the truth of the matter? Can an assessor be removed, if their (mis-) conduct warrants it?
Hudson’s experience is instructive. Ever since the moderate and well-liked Al Kritzman (R.I.P.) retired, Hudson has had a string of controversial assessors, irate taxpayers coming before the Board of Assessment review (B.A.R.) and a long list of assessment lawsuits. These typically either get settled out of court, or tossed by a judge on some spurious “standing” ground which never addresses the substance of the issue.
Some mayors, most memorably Rick Scalera, have seemed to enjoy having things both ways: a tax assessor who sticks “those people” (i.e. the so-called newcomers and merchants) with inflated and unfair property taxes, plus plausible deniability. The message is: “Gosh, I sympathize, but my predecessor appointed the assessor... So there’s nothing I can do until his/her term expires. Sure wish I could help!”
Many Aldermen meekly accept this dodge, without looking into the details. In Hudson, the City Code provides a means for the Mayor to remove an Assessor, and State guidance appears to support that power—though with an added procedural layer to avoid its abuse.
Morever, in addition to legal means, there are also political methods within City Hall to achieving the same end, though again these may be abused. Lastly, there is the power of the purse, which in Hudson ostensibly resides with the Common Council.
On the legal side of the question, Article C4-4 of the Hudson City Charter deals with “Appointive officers and terms.” The Assessor is one of the officers listed (at Part A[1]) as someone who shall be appointed by the Mayor “for six years.” Mayors such as Scalera have cited this (often with backup from pay-to-say City attorneys) that this ends the debate: You just have to wait until the term expires.
However, the same section of the Charter then addresses, just two items down at C4-6, the Mayor’s “Power of Removal.” Section C4-6 states in full:
The Mayor may remove any person appointed to any City officer or position at his discretion. [emphases added]
Like the sweeping protection of free speech embedded our Constitution’s 1st Amendment, this portion of the City Charter is admirably concise, clear and emphatic. It does not distinguish between type of appointees. It doesn’t care whether they have terms of office or not. It includes “any person appointed” to “any” City office or position.
The Assessor’s position is clearly appointive, as it appears in the Charter’s own list of appointees. This terse, declarative, and unambiguous section on Power of Removal thus gives the Mayor the power to remove the Assessor “at his discretion,” regardless of term of service.
As it happens, our State has addressed this very question already. Counsel for New York’s Department of Taxation and Finance issued an advisory opinion (see this link) on “whether an assessor who has been appointed to a six-year term may be removed from office by the town board during the six-year term for reasons other than “dereliction of duties.”
Tellingly, the State did not conclude that you can’t remove an assessor appointed to a six-year term, or any length of term for that matter. Rather, relying on Subdivision 7 of Section 1522 of the Real Property Tax Law, which begins:
An assessor may be removed from office for just cause by the appointing authority after a hearing upon notice.
Again, State Law says that that assessors may be removed, only with the caveat that there has to be some oversight to ensure that removals don’t happen capriciously, say for partisan reasons. Without that caveat, every time you had a Mayor of a different political stripe, they’d summarily remove their predecessor’s appointee just because they could. The State continues to explain that
... if an appointing authority makes a determination to remove an appointed assessor from office, its determination is subject to an administrative review by the State Board of Equalization and Assessment. The statute provides the State Board with the authority to affirm, reverse or modify the determination of the appointing authority.
The “appointing authority” in Hudson’s case would be the Mayor, per the City Charter. If the State upholds the removal, the removed assessor could appeal in court (seek “judicial review” via an Article 78 proceeding). The State further explains that
Assessors are thereby protected from capricious removal or capricious disciplinary action by the appointing authority. However, exactly what would constitute “just cause” would have to be developed in each individual situation.
Nevertheless, generations of local mayors (and the legislators who ennable them) have punted when asked what they plan to do about punitive, out-of-control assessors, even though they have the legal power to act.
Meanwhile, there is another, more political method that mayors sometimes deploy to squeeze out, rather than fire, unwanted appointees.
Any executive officer has ways of making an appointee sweat, whether in the press, or in meetings, or during the day-to-day course of their City Hall duties. A mayor more than most has the bully pulpit, and can make a lot of noise in the local press which dutifully and usually acritically reports whatever the Mayor says. He (or Council members) can demand that the Assessor appear at public meetings to explain his or her decisions, and if they don’t show, make more hay of it.
The Mayor also the ability to make an appointee uncomfortable, by moving someone to a smaller office, or require them to punch a clock, or (as Kritzman often alleged Scalera had tried with him) threaten to curtail their benefits). The goal in such cases is to get the appointee to jump over the cliff, rather than having to push them. Anyone who has seen even a couple noir films should be familiar with this routine, though again it can be used for evil ends as well as good.
In addition, in Hudson the Common Council maintains the power of the purse at its disposal. But in the case of GAR Associates’ $170,000 contract—which now has taxpayers up in arms again—the Council appears to have abdicated its right to make sure their consultant didn’t stray off the reservation.
By allowing the Mayor to “negotiate” a contract without added stipulations specifying a continued role for the Council, they lost the ability to rectify gross errors except by getting on their knees and pleading. Their only specified role after forking over the $170K was to received “monthly reports,” though according to the City Clerk there are no such records on file in her office. Council President Don Moore has yet to reply to this site’s FOIL request which covers those reports. Do those monthly reports not exist, or did they not mention that they were going to turn the local bed-and-breakfast industry upside down, or did no one read them?
At this point, there is still some $20,000 left on GAR’s contract; will the City Council refuse to pay it, if GAR and/or Assessor Garth Slocum refuse to undo the B&B switcheroo?
And oddly, the contract alludes to an expectation that the serving Assessor would not finish out his term, with GAR demanding additional time and money if they have to get up to speed with someone new.
In the end, the final GAR contract appears to be boilerplate provided by the consultants themselves, with only one obvious change: The exemption of unspecified Waterfront parcels, presumably those held by the mining company Holcim, from further review. (Interesting negotiating skills, Rick: give the consultant everything they ask, with just one special favor for a corporation with whom you’ve been closely allied. This exemption raises the question whether the City’s reval is inherently and fatally-flawed, if a single major taxpayer was given special treatment not available to others.)
In summary, the City appears to have at least three means of avoiding more nonsense with its consultants and the Assessor: (1) removal, (2) pressure, and (3) the power of the purse. Instead, even "progressive" aldermen have kowtowed to the conventional wisdom which was speciously invented by previous Mayors to provide plausible deniability for headaches some seem to enjoy inducing in the citizenry.
