Wednesday, February 1, 2017

How Many Lawyers Does It Take . . .

The City of Hudson now has three attorneys: the city attorney, Ken Dow, who serves at the pleasure of the mayor, and two assistant city attorneys--Mitch Khosrova, who is counsel to the Planning Board, the Zoning Board of Appeals, and the Historic Preservation Commission, and Andy Howard, who is counsel to the Common Council. Based on what happened at the last Common Council Legal Committee meeting, it would appear that the City also has a volunteer attorney: Steve Dunn, who played a central role in crafting the wards of equal population for the successful Fair & Equal referendum in November. Last Wednesday night, Dunn was at the Common Council Legal Committee meeting with three pieces of legislation he had drafted for Council consideration.

The first was a local law implementing the lodging tax that the City has been authorized to collect by an act of the state legislature. At the January informal Common Council meeting, Heather Campbell, the city treasurer, told the aldermen that there was no system in place to track and collect the tax and that the system required would have to be far more sophisticated than anything the City now has for collecting taxes. Dunn's proposed law, meant to "nail down specifics," includes "legal mechanics describing enforcement" of the law.

Dunn seemed particularly concerned about the share of the money raised by the tax that goes to a Tourism Board created by the legislation already adopted. One of the questions he had was if the percentage of the tax that the Tourism Board can use for promoting Hudson is determined before or after the cost of collecting the tax has been deducted. He said he also wanted to make it "crystal clear" that, although the lodging tax is collected quarterly, the $250,000 cap on what goes to the Tourism Board is an annual cap. Dunn was also concerned about what happens if the Tourism Board doesn't spend all the money it gets in a calendar year.

Andy Howard, counsel to the Council, told the committee that he had had a meeting with the mayor, the treasurer, and Alderman Rick Rector (First Ward), who as chair of the Common Council Arts, Entertainment & Tourism Committee will also chair the Tourism Board, and he sees "some of the things brought up in that meeting addressed in the Dunn document." Alderman Michael O'Hara (First Ward), chair of the Legal Committee, asked Howard to review the document for potential presentation to the full Council.

Another proposal from Dunn was a local law amending the zoning code as it pertains to dwelling units and offstreet parking. The code now specifies that there must be one offstreet parking space for each dwelling unit. Dunn is proposing, in the interest of creating more affordable housing in Hudson, that basement apartments and apartments over garages be exempt from this requirement. He also called for eliminating the minimum apartment size requirement--something that never existed before 2013, when former city attorney Cheryl Roberts misinterpreted the Schedule of Bulk and Area Regulations for Residential Districts and declared that the minimum size for an apartment was 1,500 square feet. The code has since been amended to make 500 square feet the minimum size for a one-bedroom apartment and 350 square feet the minimum size for a studio apartment. Howard said he would take a look at the proposed amendment.

The third draft document Dunn presented was a resolution "establishing mandatory training for the Planning Board and the Zoning Board of Appeals." He pointed out that New York State law (General City Law Section 27 and Section 81) requires that members of the Planning Board and the Zoning Board of Appeals have a minimum of four hours of training every year. Members of these regulatory boards who have not complied with the training requirements are not eligible for reappointment. Despite this requirement in state law, Dunn, who is a member of the ZBA, maintained that his colleagues on the ZBA and members of the Planning Board have not received the requisite training. He proposed a resolution that would waive the requirement for everyone in the past but would make at least four hours of suitable training mandatory going forward for everyone serving on the Planning Board and the ZBA and that a record of the annual completion of the required training be maintained by the City Clerk.

Dunn told the committee that he wanted the proposed resolution "received expeditiously." O'Hara observed, "You're like a whistleblower, because you are on the ZBA."


  1. Carole, you did well in being so accurate in describing my blizzard of legalese, but there is one misstatement. I did not propose, nor does my draft legislation effect, the elimination of the 350 square foot minimum size requirement. What the draft legislation does do, is correct a drafting error associated with the adoption of the apartment minimum size legislation, which excluded from the definition of a dwelling unit, a "studio apartment." By doing that, the no doubt accidental effect of that is that there is now no off street parking requirement at all for studio apartments, since they are not deemed "dwelling units." So I corrected that error in the legislation, and a studio apartment is now once again deemed a dwelling unit subject as all other dwelling units are to the off street parking requirement of one parking space per dwelling unit (except in the commercial zoning district).

    However, the minimum apartment size requirement of 350 square feet does not change. While I opposed at the time the minimum size requirement when it was proposed, the 350 square foot figure is so modest, that I don't consider it a public policy problem. Thus I see no reason to revisit that battle, and did not do so.

    Thanks again for your fine reporting, Carole. If anyone has any questions or concerns as to what I am up to, feel free to contact me. It is always good to have a conversation about these often complex matters.

  2. I appreciate the hard work Steve, and also the spirit of "whistle blowing."

    But may I offer a general warning - which is not individualized - about the legal profession and an unrelated subject? I'm thinking about our City attorneys and the Colarusso proposal.

    Though we're generally constrained by our laws, in the capacious Common Law tradition broad interpretations allow for interesting balances of interests and alternate outcomes. (Civil law is more about applying codes.)

    But here we must be very careful lest the occupational biases of the legal profession end up shaping our polity for us, like the proverbial hammer-holder seeing every problem as a nail.

    At the moment, this hammer is looking for a safe way to compromise the City's Zoning Code, while residents argue correctly that the amended "LWRP zoning" was already the compromise.

    Our City attorneys find themselves in a pickle concerning the Colarusso haul road proposal. The reasons for the pickle are occupational and "cultural," but because of the powerful positions these individuals hold, not to mention Hudson's tradition of behind-closed-doors dealings, their biases are formidable and maybe even hazardous.

    If our attorneys advise further compromise, which only compounds and vitiates our previous compromises, then they run the risk of litigation from residents.

    If they advise that the Zoning Code be enforced fairly and equally, then they fear litigation from the landowner (although no reasonable person can suppose the latter threat has any legs).

    What a dilemma, whether to side with Local Law and with residents, or with a bullying industry whose lawyer offers no more than legal-sounding bluster?

    Of course the City should do the right thing by its residents, but that doesn't mean the special needs of lawyers won't prevail (in all due respect).