Thursday, March 28, 2013

At Last Night's Legal Committee Meeting

During a Common Council Legal Committee meeting that lasted for two hours (committee meetings are scheduled to take only 45 minutes), members of the committee and city attorney Cheryl Roberts discussed the legal memorandum prepared by Ken Dow on behalf of The Valley Alliance. John Mason reports the committee's responses to the objections raised in the document in today's Register-Star: "Committee stands by Holcim land transfer." The general opinion expressed by Alderman John Friedman (Third Ward), chair of the committee, was that The Valley Alliance had "overreached in some of their arguments."

City attorney Cheryl Roberts denied that the agreement was illegal because the City was giving away its right to eminent domain. She maintained that it does not give away the right. She explained that in the unlikely event that the City could afford to eminent domain the port, it would forfeit the nine acres, but "if we could eminent domain the port, we could also eminent domain the nine acres."

She also dismissed the idea that it was a problem for the City to agree not to change the zoning on the port for fifty years. "It would be unlikely that we would change the zoning so that it cannot be used to ship rock," she explained, "because it would be considered a 'taking.'"

The text of the "Bargain and Sale Deed with Covenant," which was available to the public for the first time yesterday, sets forth the conditions of the conveyance:
REVERSION OF TITLE. Title to the Property vested in Grantee [the City of Hudson] hereby shall be divested and shall revert to Grantor [Holcim] upon the occurrence of any of the following:
(a) Exercise by the City of Hudson or the State of New York of the power of eminent domain effectuating a taking of Parcel "A" [the port] . . . .
(b) Unilateral rezoning of the City of Hudson of Parcel "A", as described in (a) above, or any other unilateral legal or regulatory action taken by the City of Hudson or the State of New York with respect to Parcel "A" that terminates or materially restricts the uses of Parcel "A" that are permitted as of the date of this instrument or prohibits or materially restricts access to Parcel "A" by vehicles carrying rock or aggregate over the existing causeway traversing other lands of the Grantor between State Route 9-G and the CSX right-of-way, known generally as the "South Bay Causeway";
(c) failure to designate Parcel "B" (the Property conveyed hereby) as a municipal public park, or following such designation, un-designating the property from parkland designation; or
(d) Sale or leasing of all or any part of Parcel "B" (the Property conveyed hereby) to any third party, whether an individual, a governmental entity, a private not-for-profit corporation or a for-profit business enterprise, provided that this provision shall not preclude the Grantee from relocating the State-owned boat launch to the Property, nor shall it preclude the Grantee from contracting with a private operator to operate its waterfront recreation facility.
This Reversionary Clause shall expire on the earlier of
1. The fiftieth anniversary of the recording date of this instrument;
2. The last date of five (5) continuous, uninterrupted years non-use of Parcel "A" as a commercial industrial dock; or
3. The recording date of a mutual agreement of rescission on entered into between Grantor and Grantor's successor in title to Parcel "A" and the City of Hudson.
Friedman summed up the situation by saying, "We do better owning [the parcel] than not owning it. It means the port cannot be enlarged." He conceded that there are were problems with the language of the resolution passed on February 11 and admitted that the deed and map should have been made public sooner than yesterday. He concluded by saying, "It's in The Valley Alliance's court."

1 comment:

  1. I salute the Valley Alliance's efforts, and I hope that they will follow up on the many ignored questions raised by their letter.

    One of Roberts' favorite tricks is to defend against only one part of a complaint, and to thereby dismiss the entire complaint. It appears that the other legal types on the council are learning the same trick from her, and it is essentially bad faith.

    In 2011, a state SEQR Analyst at the DEC told me that Roberts was completely in the wrong for ignoring newly discovered information about the ecology of South Bay that was submitted to the council.

    Stupidly, I had personally reported that the American eel was not yet known in the bay (dumb mistake, I know, I know ...), and on the basis of the one error all of the rare and state-listed plants and animals which were reported were dismissed or ignored by Roberts (and by that year's asleep-at-the-wheel council).

    In 2012 the state DOS officially listed the majority of the new discoveries in a "Rating Form" for its newly-designated significant habitat.

    Unfortunately I never was able to afford a lawyer to challenge the city on a clear violation that was confirmed by the SEQR Analyst.

    Today I am in the same situation, although the city may have to pay for all legal fees if a court finds Roberts in violation of the state's Open Government Law (Regarding Resolution No. 2, from last September 18th).

    For example, a typical sales pitch for the council president was repeated in the Register Star story, which is that "we’ve been waiting a long time to get this land."

    That is a lie, and it is a much worse lie than the other plentiful dishonesties such as the new repetition of the phrase "approximately 9 acres." (Wouldn't people agree that 9.968 acres is really 10 acres?)

    It is a fact that nearly a third of the land described in February's resolution was new to the deal. For the public anyway, the added acreage was unknown and unknowable until AFTER the council had passed the Resolution! (That in itself was unlawful.) For a public that Mr. Moore routinely keeps in the dark, his "long time" will be all of 2 months come April 11th.

    It would have been more accurate to say that Mr. Moore had personally waited for this land; whereas it is the height of dishonesty for him to imply that the public had known anything about the extra acreage.

    It's also curious that the added acreage which was the former site of a Standard Oil "distribution depot" (a fact missed by the title search: oops!) was not included as a candidate site in last September's non-public BOA Program application. That was a grant request to study contaminants which was devised by a secret committee on which both Moore and Roberts serve in total disregard of the state's recommendations that the DOS program include the public.


    All that a citizen can do to guard against such secretive and dishonest officials is to study the available record.

    At the 9/18/12 council meeting where Roberts finally retracted her 2-year old claim that a contaminants survey had already been conducted "at the approximately 7 acres," the council ordered a "preliminary environmental review" (which is not yet conducted) and a title search (which is conspicuously incomplete).

    But if you go to the public record to see exactly which lands the council had voted upon last September, the resolution's "attached map" is missing from the Minutes. The City Clerk was as dumbfounded as I was that they were missing, but could add no more.

    The council had better think long and hard about this matter. It will be difficult, expensive and totally embarrassing to have to take apart a deal which the council had precipitously finalized thanks to Mr. Moore's tiredness and impatience.

    I also wonder if Holcim would have a problem undoing a completed land transfer? Wouldn't they seek damages in the event?