Wednesday, July 11, 2018

What Didn't Make It

Now that we all know what projects will be getting funding from the Downtown Revitalization Initiative, it's time to consider what didn't get funding. The final list of projects submitted in March can be found here. Of the list, those that will not get DRI funding are:

  • Railroad Point Pier
  • Citywide Wifi
  • Community Makerspace/Business Incubator
  • State Street/Columbia Street Site Prep Work
  • Wayfinding and Signage
  • Homeowner Improvement Grants
It is of interest that each of the projects to be funded with DRI will get exactly the amount proposed, with the exception of the redevelopment of the Kaz site. It was proposed that $2 million in DRI funding go that project; it will in fact be getting $487,160.


  1. As for the pier, it was easier to drop once the DOS realized that it required State-owned underwater lands. On that subject and others the proposal was less than forthcoming, but the Nack Center can go forward at last, better off for the amputation.

  2. 1.

    Another casualty of the final picks is the dropping of an Article 78 lawsuit against the City alleging that the current City Planning Board made an unlawful determination by segmenting the pier proposal pursuant to SEQRA (the State Environmental Quality Review Act).

    The Planning Board's determination was based on an error of law and some very sloppy procedure, but it was also decided arbitrarily and capriciously. No Planning Board in the United States should be basing its determinations on accusations of "evil," as we heard from this Planning Board when defending the flawed proposal before them.

    Please stop for a moment and THINK about that for a moment, because it could be your doomed proposal next unless you're one of the forces of "good," another word used by this insane Planning Board. Just wait till the Planning Board faces the Colarusso attorney next, then we'll see how far "good" and "evil" will get us.

    A shallower view will see the dropping of the Article 78 court challenge as a plus for the city, when it had actually indicated something terribly wrong in the way State laws and local policies are now being interpreted at City Hall.

    "Good" and "evil" notwithstanding, is it sound practice for our Boards to wield power so capriciously under the guidance of expensive legal counsel that the City is thereby exposed to lawsuits? Because it's critical to appreciate that the Planning Board's screwy determination - which would have been dead-in-the-water before the Court - relied on the terrible advice of the Board's attorney. Not only was his advice bad, but this attorney was so lazy he didn't even finish the paperwork required under SEQRA. And that is ultimately why the City would have lost this challenge.

    What the lawsuit intended was to draw attention to the horrible advice the city is getting from a single real estate lawyer from Chatham. Actually, neither City attorney seems to know what discussions and events had informed our LWRP from 2011, nor does the Assistant Attorney really care what informed the waterfront program's supporting zoning laws. These men weren't part of the discussion at the time, so how are they to sort out the insufficient wording of laws which a former Common Council believed were protective of the environment? How are they to know that, at the time, citizens worked very hard to have those same insufficiencies addressed and ironed out only to be ignored by the treacherous Mr. Moore.

    But the real question is, why should the attorneys know these things? It's the serving Board members who must know these things, which they may then factor into their deliberations. What's happening instead is that our Boards are ceding all of their thinking - and thus their authority - to the attorneys who ostensibly serve them. These Board's are essentially allowing their advisors to steer and even create City policy! (The single exception to this seeming rule is ZBA member Steve Dunn, whose careful and intelligent opinions were ignored by all.)

  3. 2.

    Looking at another example, this one from the ZBA, last September I personally requested a zoning determination from the City which then committed the ZBA to half-a-year's worth of hand-wringing. In the end, the ZBA followed the recommendation of both City attorneys, which settled absolutely nothing and merely kicked the problem back to itself (yes!) somewhere down the road. The mayor saved some money as a result (not paying for Part II of the engineer's report), and nobody was forced to have to interpret the intent of the sloppy drafters of the LWRP, as that was botched by Don Moore, et al.

    But the supreme stupidity of the ZBA's recent example (and also typically of this place!) is that the very question the ZBA dodged must return to them at a later date. And when it does, the same determination the ZBA reached in May will bind one hand behind its back. The determination in May will profoundly narrow the City's options once it's realized that the Colarusso company will have to request a use variance for its proposal. It's fair to ask, how can any of the ZBA members still not know this today?! It's okay, though, because their lawyer (/priest) will sort out the mysteries for them, while the very same lawyer (/priest) guides our Planning Board on its hazardous, unlawful course between "good" and "evil."

    In the end the party most harmed by the ZBA determination is the South Bay, the very resource our amended Zoning Code purported to protect. (Again, we have then-Council President Don Moore to thank for suppressing the public's contributions while steering the dysfunctional course we've been beholden to ever since.)

    In all the coming excitement of the spending spree we're about to enjoy, please be aware that we lost a real opportunity to correct some of the City's most worrying disorders. Chief among them is not ridding ourselves of the City's Assistant Attorney for the good of the South Bay. You may still complain about this to the mayor who can appoint any attorney he likes; otherwise we're back to square one as an unfortunate consequence of yesterday's DRI announcement.

  4. 3.

    Because the dropped lawsuit (see above) was our best opportunity to pressure Mayor Rector to replace the Assistant Attorney, we're truly back to square one.

    Just consider that there'd have been no need for a lawsuit against Greenport if the City was appointed SEQR Lead Agency for the Colarusso proposal. Greenport was more serious, and petitioned the DEC Commissioner for that status by submitting a legal brief. Our guy thought it sufficient to scribble Hudson's brief request on a napkin. The Commissioner rejected Hudson's claim saying in effect, You say that Hudson has zoning but say nothing more; you lose.

    Yesterday's dropped lawsuit demonstrated that the same attorney failed to complete the required SEQR process for a different application. The City would have lost that argument.

    The next example is equally behavioral. After years familiarizing himself with the various Colarusso projects, why does this same attorney for the City ZBA and Planning Board persist in his claim that the South Bay causeway is a one-way road?

    The alleged "one-way causeway" is a baseless assumption which profoundly narrows the City's options. With almost no resistance from either of the Boards, however, why would the attorney simply volunteer to examine his lazy rules of thumb on behalf of his ever-pliable clients? If they have no curiosity about actual circumstances, then why should he care? Isn't pretty obvious he doesn't care!

  5. 4.

    People who've spent decades defending the South Bay should be furious. Instead, we're just as docile as our Board members, shielding ignorance and incuriousness behind little politenesses. All the while, the City courts disaster in its tepid court challenge to Greenport. (If only Hudson had been Lead Agency ...)

    In days past, my neighbors would have wondered aloud who this attorney "is really working for?" At least the conspiracy-reflex keeps superstitious people on their toes, but what's our response to sheer laziness even when that laziness obviously advances the interests of a dubious applicant?

    For its own deficiencies, the Planning Board is supposed to scrutinize projects on the basis of presented claims, not reward or punish outside the facts of the case, and outside lawful procedure (both were such easy targets in the dropped lawsuit!). But by all appearances, the members of both Boards are way out of their depths, adrift at sea. Given their attorney's ceaseless repetition of the "one-way causeway" claim, who can doubt that every one of them simply accepts the claim.

    The purpose and goal of the dropped lawsuit was to broadcast how much money our legal advisor from Chatham is costing the City, while at the same time compromising our well-documented interests.

    Instead, we're now back to challenging sheer laziness, and the mayor's tolerance of the situation, one object at a time.

    In that case we'll have to try something else to get the mayor's attention. Let's begin by taking apart the unexamined "one-way causeway" claim, and give no quarter until this mayor has no other choice but to replace the Assistant Attorney.

    Yes save the South Bay, but from our own lawyer!!! And if that doesn't sound like history repeating itself here then all is truly hopeless.

  6. Can you please put a name to this lawyer so we all know who you're referring too

    1. This comment has been removed by the author.

  7. I am confused as to exactly what lawsuit was dropped. That got my attention.

    1. S.D., a lawsuit charging "segmentation" in the review of a proposal is no longer viable once the project is whittled down to a single segment. The Nack Center is no longer a segment of anything larger, no longer "Phase I" of a whole project.

      As Council President DePietro put it, the segmentation argument was merely "moot" once Phases II and III were disqualified from the DRI program.

      But I still think it's a moot worth mooting, for example the City would have lost the case on grounds of improper procedure if nothing else. When we should be circumspect right now asking how the same conduct will get us through other, future disputes, we're celebrating instead.

      Following the zoning determination by the ZBA which found that the 2011 Zoning Map had always been "correct," you explained how certain mechanisms of government are designed to decrease the overall likelihood of lawsuits. It follows that by neglecting or short-changing those same mechanisms, the chances of lawsuits are thereby increased.

      Will anyone take heed of these important lessons?

      Thanks for asking.