COPYRIGHT 2016 CAROLE OSTERINK
Sunday, May 8, 2016
About Promenade Hill
Recently, while perusing Common Council minutes from 1964 for an entirely different purpose, I discovered the following in the minutes for August 27, 1964.
This excerpt provides evidence that more the fifty years ago, when urban renewal was demolishing everything surrounding it, the people of Hudson were concerned about the survival and well-being of Promenade Hill, Hudson's oldest public park, which had been established in 1795.
People continue to be concerned about Promenade Hill and the integrity of its historic design, now approached by way of a hard surface "mall" of 1970s design. The current cause for concern is the ramp that has been proposed to enable people with disabilities and mothers with strollers to access Promenade Hill. While no one is opposed to the end, many are worried about the means: a ramp, constructed of wood and dubbed by Gossips "the ramp of least resistance," for which the Common Council has allocated $20,000.
Last month, based on a tip from a reader who avowed the information came from a DPW employee, Gossips reported in an "Ear to the Ground," that the materials for the ramp had been ordered. This turns out not to be true. No materials have been acquired. Gossips has this on the authority of Mayor Tiffany Martin Hamilton and Rob Perry, the superintendent of Public Works. This does not mean, however, that there has been no movement toward providing access to Promenade Hill for those unable to climb stairs. There is a plan afoot to design and build a ramp that will not only give universal access to Promenade Hill but will also be an enhancement to the park entrance. Gossips will provide more information as this plan moves forward.
COPYRIGHT 2016 CAROLE OSTERINK
COPYRIGHT 2016 CAROLE OSTERINK
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One claim which always intrigued me persisted through each draft of the LWRP, and remains in the Final LWRP:
ReplyDelete"Promenade Hill Park [is] the Country’s oldest public park" (FLWRP, pp. 14, 15).
I've never found anything to contradict the claim; evidently, all of the earliest parks in Massachusetts were privately owned.
But my own fixation rests on another evident first for the Promenade, which may also be the only of example of its kind: a park which is owned by a municipal legislature and not the municipality itself.
It seems that public parks are always owned by towns or cities themselves, whereas the Promenade is a true "peoples park." If it's not the only one in the nation - so far I've discovered no rival claims - then it's certainly the oldest.
In that case, it's pretty disgraceful that the custom of our Common Council is to exercise little or no role in decisions which affect the Promenade Park.
The City's proprietors couldn't have been clearer when they granted the land "for the purpose of a Public Walk or Mall and for no other purpose whatever" (Proprietors' Minutes, March 9, 1795). Since then, we've seen a refreshment stand, the erection of a religious statue, the anti-democratic siting of benches with their backs to the mall, and most recently, in 2013, the introduction of advertising at the invitation of our previous mayor supported by the mute acquiescence of the Common Council.
If Hudson can ever shake its deep state ignorance, which seems ever-replenished by new arrivals from points south, then future generations will have to shake their heads at this generation's collective lack of knowledge, imagination, and sense of place.
Enough with this canard that Promenade Hill is somehow owned by the City Council. It isn't. It's owned by the City of Hudson.
ReplyDeleteWhile the park may have been "given" to the Council, the Council has no ability, in and of itself, to own anything. In point of fact, the Council only exists by dint of its creation in the City Charter. The City is the corporate entity; the Council a "wholly-owned" subsidiary, if you will. So only the City has the legal authority (indeed, the corporeal and legal capacity) to own anything.
Thus control of the park (all the City parks) is within the purview of the executive (mayor's office) per the Charter. Yes, the Council controls the purse strings, but the mayor oversees the DPW -- and it's the men and women of that agency that actually administer the parks (as the City has no Park's Commissioner or other specific agency/person assigned this responsibility). In practice, therefore, the parks slip through the cracks more often than not (though the garbage is routinely picked up from both the ground and the trash receptacles).
You say that the Council has "no ability, in and of itself, to own anything."
DeleteExplain §C12-28:
"The Common Council of the City of Hudson shall have exclusive power to acquire, own and operate transit facilities of any nature within said City's boundaries. ..."
As an Alderman, you're obligated to know and defend the Charter. At the very least, you should not be caught misrepresenting it.
The Proprietors had good reason - both civic and religious - to grant "Parade Hill" to the legislature. The City is bound by the Charter to honor the "terms as may be prescribed by the grantor or donor."
The Common Council OWNS the Promenade. The canard issues from those who seek to manipulate the Charter in order to redefine, to suit their own ends, the prescribed terms of grantors.
Would-be grantors to the City of Hudson, beware!
"The Common Council of the City of Hudson shall have exclusive power to acquire, own and operate transit facilities of any nature within said City's boundaries. ..."
ReplyDeleteOnly a corrupt administration would deny self funded citizen stewardship.
Works everytime it's tried.
DeleteSure, the Charter says many things, Mr. O'Connor, and some of them even hold legal power. But the reality belies its enforceability. The City of Hudson, like all NYS municipalities, is purely a creature of the State Legislature. As such, it has only those powers granted it by the Legislature. Any area of the law the state statutes "fully occupy" is off limits to the various municipalities. Agency -- the ability to contract or enter in to privity with another -- is for the City to accomplish. Thus the separation of powers.
ReplyDeleteFrankly, Tim, when it comes to misrepresentation you take the cake. You routinely use conclusory language in your arguments -- very weak rhetorical style. Indeed, your arguments are often merely a chorus line of straw men. Don't you get tired of being wrong?
The City Charter was revised as recently as 1974 to permit ownership by the Common Council.
DeleteIf the Charter contains language which contradicts State law, then the City is not in a legal position to execute its responsibilities, never mind the legal competency of its office-holders.
However, I think you'll find that the Municipal Home Rule Law does not prohibit local governments from deciding their own means of acquisition, ownership, and management of real property, at least not where ownership by a local Council isn't explicitly prohibited by the provisions of the State Constitution.
Evidently, you've taken your time since yesterday to research this subject, but you've provided no citations to support your calumny that City residents have misrepresented the plain language of the Charter with weak, strawman arguments.
As a local lawmaker willing to stoop to ad hominem, you ought at least provide readers the courtesy of citations.
Specifically, where does the State Constitution qualify the Legislature's Municipal Home Rule Law to the contradiction of our City Charter?
I think no such citation exists, and that your insults are substitutes for real arguments.
You're overlooking Home Rule, in which the State, rather than "fully occupy" an area of local self-determination, makes way for the kinds of quirks we find in our City Charter.
Delete• From Article IX of the State Constitution, "Powers and duties of legislature; home rule powers of local governments; statute of local governments":
§2(a) "The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution.
§2(b) "Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:
§2(b)(2) ".... Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only ..."
• Looking to NYS General City Law, Article 2A:
§19.(1) "Every city is granted power to regulate, manage and control its property and local affairs and is granted all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution. No enumeration of powers in this or any other law shall operate to restrict the meaning of this general grant of power, or to exclude other powers comprehended within this general grant."
• Under the basic grant of the Municipal Home Rule Law, at §10(ii), cities may adopt or amend local laws in relation to their “property, affairs or government” that are not inconsistent with the provisions of the Constitution or with any general law.
To win your point, you must demonstrate an inconsistency - and please use citations.
The City Proprietors, its Common Councils, and its long line of legal counselors surely understood that these issues are matters which are locally determined. It's significant that the Proprietors themselves were acutely aware of the difference between "the City" and the Common Council.
The Promenade was granted to the Common Council 221 years ago, and the Council has owned the Promenade ever since.
Again, Tim, you're a fabulous clerk, and lousy lawyer. You are using conclusory language as building blocks of a fallacious argument. Yes, the legislature makes the laws relative to EVERYTHING in the municipality over which the legislature has JURISDICTION, which is granted by the SOVEREIGN, in this case NYS. Which was my point precisely. You've not made your argument, but mine. Once again, you got it wrong.
ReplyDeleteThanks for at least one compliment, but you must indicate precisely where the Proprietors and the Common Council of 1974 got it wrong. (Recall, it's the City Charter itself which is making the claim, one which I'm merely repeating.)
DeleteWhere in the Constitution, or in what statute, is ownership of granted property prohibited for a Common Council.
Otherwise, according to the language of the State Constitution and the General City Law, Home Rule prevails.
Tim, try this on: as a matter of law, property has to be owned by "someone." That someone can be a natural person (i.e. borne of woman) OR an artificial person (i.e. a legal entity). To wit, the City Council of the City of Hudson is NOT a legal entity. It is but one branch of the City of Hudson which IS a legal entity, a corporation in fact, formed under the aegis of the NYS Constitution and its General City Law, subject to both as well as numerous other statutes some of which are codified into municipality-specific titles (Home Rule, Gen. Municipal, etc.), and some of which are scattered through other codified and uncodified volumes of the law (Real Property, RP Tax, etc.). On top of these statutory limitations and expansions of municipal rights and obligations, there are tens of thousands of appellate decisions from many such courts which also expand and contract municipal rights.
DeleteSo the question to ask where is the right of ownership granted to a non-existent entity? And the answer is "nowhere." Neither I nor you can prove a negative so I can't point to where the law isn't.
You may find it instructive, however, to spend some time with modern (i.e. current) practice of municipal law which always has the CEO of a municipality execute contracts on its behalf at the behest of the people (legislature) -- and NEVER the other way around. And now you know why.
But City government can take a variety of forms. Among these, the "weak mayor-council" model is not precluded by our State Constitution.
DeleteIn that form of City government, the council itself becomes the administrator (read: entity), and not the mayor who is a mere figurehead.
It seems to me that the "weak mayor-council" model undermines the absoluteness of your argument that City Councils are always non-existent entities.
From James A. Coon:
"In a weak mayor-council form of government, the mayor, even though popularly elected, is mainly a ceremonial figure. The council is not only the policy-making body, but also provides a committee form of administrative leadership and exercises the powers of appointment and removal of agency heads and budget preparation. There is generally no mayoral veto power, and committee chairmen tend to wield extensive powers."
Because there was no sovereign, the shore was was given to the people, for free fishing in 1641 and fowling in 1647.
ReplyDeleteOur corrupt leaders seal in our waterfront with steel, then sell our shore to friends with fences and now has difficulty running or funding our parks.
Does the sovereign own the view?