Wednesday, October 19, 2016

The Night of the Attorneys

Last night's Common Council meeting went on for two full hours, and the first forty minutes of it were taken up discussing Council president Claudia DeStefano's action, at a Police Committee meeting on September 26, to remove Alderman Tiffany Garriga (Second Ward) from the Police Committee. One of the early items on the agenda was, as always, accepting the communications. Garriga noted that a letter from her attorney, Mark S. Mishler, which had been emailed to DeStefano and the rest of the Common Council the previous day, had not been included in the communications. The explanation was that the city clerk, Tracy Delaney, who prepares the packets for the aldermen and the press, had not received the letter. Garriga then requested and was granted permission to read the entire three-page letter aloud.

In the letter, Mishler maintained that DeStefano's actions in removing Garriga from the Police Committee "were unwarranted, improper, invalid, and a violation of Ms. Garriga's constitutionally protected rights to due process; freedom of speech, assembly and association; and equal protection." The letter concluded: "Ms. Garriga remains a member of the Police Committee of the Common Council and fully intends to continue to participate as a member of the Committee."

When Garriga had finished her reading of the lawyer's letter, Alderman John Friedman (Third Ward), who is himself a lawyer, demanded to know DeStefano's response. DeStefano replied, "I received the letter yesterday, and I am digesting it." Friedman then directed his question to city attorney Ken Dow, demanding to know his response, as lawyer for the City, to the letter. Dow began by saying, "It is not for an outside law office to declare if someone is on or off a committee."

Throughout the extended exchange that followed, Dow maintained that the makeup of committees was at the discretion of the Common Council president, likening it to congressional committee appointments made by the Speaker of the House, all of which change when a different party comes into power. Friedman did not question DeStefano's right to alter committee assignments but argued that her reason for removing Garriga was invalid because it was a constitutional infringement. "[Garriga] has the right to say what she wants to say," Friedman told DeStefano, "and you do not have the right to make her pay for that," adding, "And I don't even agree with what she said!" 

On the issue of constitutional infringement, Dow argued that "in a political context, it is not the same situation." To this, Friedman responded, "None of us thought we were waving our constitutional rights [when we joined this body]. When does local law trump the Constitution?" He then told Dow, "I am shocked to find you arguing this."

After Friedman warned DeStefano, "A lawyer wrote you a letter. Ignore it at your own peril," it was agreed the Dow would draft "what he thinks is correct and give it to the Council."

The meeting moved on, with the aldermen voting on various resolutions before them. Interestingly, when they got to the resolution, which had been proposed by Garriga, that would amend the Rules of Order to prohibit "midterm removal of committee members and chairs," the resolution failed. Only Garriga, Abdus Miah (Second Ward), and Bob Donahue (Fifth Ward) voted for the amendment; the remainder of the aldermen present--Friedman, Henry Haddad (Third Ward), Priscilla Moore (Fifth Ward), Michael O'Hara (First Ward), Rick Rector (First Ward), and Lauren Scalera (Fourth Ward)--voted against it.

City attorneys past and present came under fire again over the question of leases on City-owned properties: 20 Columbia Turnpike, 27 Rossman Avenue, and 80 Reservoir Road--all rented to employees (and relatives) of the Department of Public Works. The leases were allegedly approved by the Common Council more than a year ago and presented to the tenants, but the tenants refused to sign them because they specified that pets and smoking were prohibited. Now, a year later, with all the tenants still in place, the City is trying once again to get the leases approved and signed. Joe Finn, who told the Council he had lived at 20 Columbia Turnpike for the past fourteen years, called the new lease, which was written in 2015, during Mayor William Hallenbeck's administration, "a bully tactic to get us to leave." Friedman claimed the Council had never seen the lease in question because he would never have approved a lease that prohibited pets. The Council voted unanimously to ask the mayor to amend the leases, leaving out the prohibitions on pets and smoking, so that the tenants would sign them.

The lease issue sent back to the mayor's office, the Council voted on two more resolutions before getting to the resolution to approve the contract between the City and Randall + West, the consultants chosen to work with the Conservation Advisory Council to create a Natural Resources Inventory. In September, the Council had passed a resolution authorizing the mayor to enter into this contract, which was now before the Council for approval. Friedman was critical of the contract, pointing out a number of instances where he felt the document needed revision. When Friedman asserted his expertise in writing contracts, saying "This is what I do for a living," Dow snapped, "Then why don't you f**king do it?" With that, Dow gathered his belongings and left the Chamber and the building. The resolution to approve the contract was then tabled.

At this point, there was only one item left on the agenda: issuing a Negative Declaration on the proposed zoning amendment that would affect three parcels on Hudson Avenue. Unfortunately, the city attorney had left, taking with him the Environmental Assessment Form that had to be completed before making the determination. Friedman, who had authored the amendment, in whose ward the subject property is located, and who supports the amendment, expressed frustration that 120 days had already passed since the resolution was presented to the Legal Committee. He noted that the Planning Board was calling the proposed amendment "spot zoning" and declared, "The city attorney's office is getting in the way of business being conducted in the City of Hudson."

It was then that The Gossips of Rivertown was elevated to a new status in City Hall. Friedman made reference the post "Nothing Is Ever Easy," which analyzed the question of whether or not the zoning change proposed constituted spot zoning. He then distributed to the Council and the press copies of a letter from Virginia Benedict, attorney with the law firm Rapport Meyers. The letter was addressed to Walter Chatham, the architect who owns the three parcels on Hudson Avenue and seeks to have their I-1 (Industrial) zoning changed. Chatham had asked Benedict for a legal review of the request and referred her to the Gossips post on the subject. Benedict's letter reads in part:
Ms. Osterink provides a thorough and highly accurate analysis of the issues involved. Her review of the City of Hudson's Comprehensive Plan and Local Waterfront Revitalization Program and arguments made to support the conclusion that the requested zoning amendment is consistent therewith are particularly valid.
Furthermore, the definition she provides of "spot zoning"--the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of such property and to the detriment of other owners--is the same definition applied by New York courts. To determine whether a zoning proposal falls within this definition, courts consider several factors, including whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of professional planning staff. The ultimate test is whether the change is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community. The fact that rezoning affects a small area of land or benefits a specific person is not determinative.
Based on our analysis of your plan, this should be exactly what the City of Hudson is looking for, and the Common Council should have a clear path to approving the rezoning as consistent with the comprehensive plan.
When Planning Board chair, Tom DePietro, who was present at the Council meeting, was asked to comment, he chided Friedman for not coming to the Planning Board meeting but instead relying on "something online." He then told Friedman that the Planning Board's decision not to recommend the zoning amendment "did not hinge on spot zoning" but on their opinion that "the change should be part of a more comprehensive plan." He told Friedman that the Council would get the Planning Board's letter "as soon as our attorney drafts it," but added that if the Council did not get the letter in thirty days, "you can make the decision to rezone it," without a recommendation from the Planning Board.

It was decided that the Council would hold a special meeting to continue its consideration of the zoning amendment, but when that meeting will be held is not yet known.