Legal analysis of resolution identifies multiple violations of City and State laws
Terms of resolution are troubling, alarming and void, says Dow
A 10-page legal memorandum from attorney Kenneth J. Dow to Hudson Mayor William H. Hallenbeck, Jr. finds that “it would be unlawful for the City to enter into a contract for the conveyance of lands from Holcim US to the City” as such plan is outlined in a February 11th Common Council resolution. That resolution was aimed to authorize the Mayor to negotiate a contract with Holcim regarding a land transfer and its controversial use of the South Bay.
Dow’s analysis on behalf of The Valley Alliance finds that the terms of the resolution violate the City Charter, State Constitution, Common Law and multiple other laws, rendering any such deal “unauthorized, unlawful, and void.” Dow’s review finds that the resolution written for the Council by its attorney fails “to make a valid authorization to execute a real property transaction.” Among other glaring legal errors, the resolution:
- Failed to identify what land is to be transferred from Holcim to the City;
- Wrongly called the land transfer a gift, when it is actually a purchase and sale;
- Neglected to name any dollar amount of the tax credits exchanged for the land;
- Violated the State’s Open Meetings Law; and
- Relied upon an arbitrary, capricious and insufficient environmental review.
Citing specific statutes and cases, Dow’s legal memorandum finds that correcting the more obvious legal mistakes in the resolution “would not address the underlying unlawfulness of the proposed transaction, as its “essential provisions” and structure are themselves improper. A copy of Dow’s full legal letter can be obtained by emailing hudsonbay@mac.com, or by clicking this link.
“State guidance clearly states that Local Waterfront Plans should be driven by community consensus,” said Alliance co-director Peter Jung. “Yet the City of Hudson has gone to extraordinary lengths to accommodate foreign and out-of-state industrial interests at local residents’ expense.” Holcim is a Swiss-owned company, and its trucking partner O&G Industries is based in Connecticut.
Dow notes that both State General City Law and the Charter of the City of Hudson prevent any “conditional exchange of land for value, in which the land may revert to Holcim.” While certain gifts may be accepted with conditions, laws prevent conditions from being attached when “a conveyance [is made] in exchange for consideration.” In this case, the “consideration” would be the unspecified tax credits offered to Holcim.
The resolution’s attempt to attach conditions to parcels not directly involved in the land transfer is especially legally problematic, Dow finds. And to the extent the transfer is intended to resolve a tax lawsuit filed by Holcim several years ago, Dow cautions the Mayor that doing so would be a “possible violation of Article 7 of the NYS Real Property Tax Law.”
Calling the resolution’s terms “alarming and troubling,” Dow alerts Hallenbeck that any 50-year plan for the Council to give up “its essential sovereign and Constitutional powers to enact laws or to exercise eminent domain is against public policy and unlawful... The exchange of land for promises of legislative performance by the City constitutes an unlawful quid pro quo.”
A graduate of Harvard, where he obtained his A.B. degree in Government, and Albany Law School, Dow has served as a Commissioner of the Columbia County Board of Elections and the Chair of the County Democratic Committee. He has been a Legislative Counsel to the New York State Senate, and his current practice includes serving as attorney for a local town.
Finally, on a policy level, Dow observes that even if the many “salient and fatal flaws in the City’s actions and proposed plans” could be fixed, “it creates only a tenuous and conditional outcome insufficient as a basis for the LWRP to proceed.” Since elements of the City’s Waterfront plan are predicated on the land transfer, the provision for Holcim to retake the land undermines that goal: “It seems unlikely that the State or Federal government would commit funds to a site that could be conveyed at any time to private hands,” Dow notes.
“In its rush to finalize a land deal with Holcim, the City failed to pay close attention to the most basic principles of law,” said Jung. “In doing so, Hudson may have stalled approval of its LWRP, making the City ineligible for key Waterfront grant funding.”
“The resolution is a legal trainwreck,” added co-director Sam Pratt. “Putting all past policy arguments aside, one thing is clear: Hudson’s current officials have gotten some spectacularly bad legal advice. Or is the City really so in bed with Holcim that its leaders would violate their own Charter and the State Constitution, just to help out some Swiss billionaires?”