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Register-Star, Sunday, March 12, 2006, Letter to the editor
To friends, supporters
To the editor:
Last year, when Doug Cropper was running for the Village Board in Philmont, I asked him who in particular he was running against. He said no one -- he just thought people should have a choice and he wanted the chance to be on the board.
This year, when I decided to run for the one-year trustee term, I understood what he meant. So it did not occur to me that as my opponent he would challenge my petition which would enable me to be on the ballot.
In an unprecedented move, and although no petition has been challenged in over 25 years in Philmont, Doug challenged mypetition. Naturally, he had every right to do so, but because I hadn't expected him to challenge, I only got a few names over the required 50 signatures to get on the ballot.
Clarity and communication is very important to me, in my life, and for my campaign platform. Since this process was all new to me, 1 thought I would share what I learned:
Because of these rules, the county Board of Elections, in response to Doug's challenge, had to invalidate some of my signatures, and I ended up two short of the required 50 to be on the ballot.
This means that the only way that you will be able to vote for me on March 21 is through a write-in ballot. A few people had suggested that I get on the board to "see how things work" and the nomination process has already been a rich learning experience. I will continue that learning by understanding and sharing how write-in ballots work. Win or lose I will not stop being an active volunteer in the village.
I want to thank all the people who signed this year's petition and who have been so supportive. I'll take Doug's challenge as a compliment to my strength as an opponent and will certainly apply what I learned in this campaign for next year.
Robin Andrews
Philmont
Register-Star, Friday, March 10, 2006, Letter to the editor
Against Summit Heights II
To the editor:
This letter is in support of the Philmont residents who are challenging decisions made by the Village Board and Planning Board regarding the Summit Heights H subdivision.
I am a former member of the Philmont Planning Board. I was appointed to the board and served for more than 10 years. I served as vice chairwoman of the Planning Board under Clinton Mossman. I served as acting chairwoman when Clint became ill. I was acting chairwoman when Philmont Ventures, LLC first came before Philmont with the proposal for Summit Heights II.
As someone who was involved in the initial stages, I can report that, from the beginning, the review of this proposal appeared to be manipulated by the developer and a few village officials. Secrecy, confusion and contradictions surrounded each decision.
For example, when the Planning Board first began to review the Summit Heights proposal and I questioned the use of the established Conservation Easement for detention pond purposes, I was advised by the village attorney that the matter had already been considered by "the village." However, when I directly asked then Mayor Phillip Mossman, what had already been negotiated with the developer, the mayor denied any prior discussion.
Soon after, I began getting messages that the developer was not happy with the way his proposal was proceeding through the Planning Board. At its first opportunity, the village board appointed a replacement for Clint, and made him chairman.
Once the new chairman was in place, Planning Board practices changed drastically. First, public comment, which had always been welcome at any meeting when Clint was chairman, was suddenly no longer permitted. This was done without discussion or vote by the Planning Board.
But it was not only public input that was squelched. Even those of us on the board were finding it increasingly difficult to participate meaningfully in the review of the project. We were rarely advised of meeting agendas in advance. Direct questioning of the developer by individuals on the board was tightly controlled by the chair. Many of the most critical questions were dismissed as irrelevant by the chair.
If a difficult question did manage be raised, the response from the Planning Board chair was to require the questioner to provide the solution for the developer. If one was not immediately forthcoming, the question was dropped. This was exactly what happened regarding the sidewalk requirement. When it became clear that the development, as designed, could not support sidewalks, the chairman essentially blamed the Board members who pointed it out. Sidewalks didn't fit...that's just the way it was and would remain. Sidewalks were waived... Next issue.
Nowhere was the undermining of the planning process more apparent than during the so-called review of the State Environmental Quality Review Act (SEQRA) Application.
There was absolutely no appropriate leadership or process followed in the Planning Board's treatment of this important measure. A special meeting was requested by the developer to answer concerns about an unrelated topic. Instead, the SEQRA application was put to a vote. As a Planning Board member I was neither advised that the SEQRA application was to be reviewed at this meeting, nor was I ever asked for written comments regarding my review of this application. Despite my ongoing questions and comments that the application was incomplete and inaccurate, and did not support a negative determination, the SEQRA was reviewed and passed at this one meeting.
It may be argued that sometimes processes must be altered as we anticipate a greater benefit. But look at some of the changes that have been made to accommodate this one developer:
What exactly are the benefits of this project that outweigh our established processes, zoning law, subdivision requirements, and override the written agreement that has protected the natural beauty of our village for nearly 20 years? Why has not one village official felt obligated to detail the benefits of this project and publicly state why they support the waiving of established processes for this project? Can the village justify waiving these requirements for any reason other than that the developer has wanted it that way?
My biggest regret is that I was not more effective in my role on the Planning Board. Through April, 2005, I continued to receive messages that the developer was dissatisfied with my participation on the board. Whereas first he only objected to my Chairing the board, by then he objected to my voting or even engaging in discussion of the project. He had his attorney write to the village and threatened to sue me personally for bias against him. When the village made it clear that it would not support me, I had no alternative but to resign.
Who has been served by all of this? Our officials appear to be more interested in avoiding confrontation with one personality, than in doing the right thing for all of us.
For this and many other reasons, I deeply respect the efforts of the Philmont residents who initiated the Article 78 action and are pursuing the appeal. It is a shame that it has to come to this, but I sincerely hope that these amazing folks succeed in correcting some of the problems caused by the gross mishandling of this project.
Carol Friedman
Philmont
Chili Cook Off to benefit rescue squad and fire departments
Press release: March 7, 2006
On Sat, March 11th, from 3-6 at the Mellenville Firehouse, Main Street Public House Pub (Elizabeth Angelo and her husband Matt, who recently purchased Nick’s Restaurant – which was Po’s old bar) is sponsoring a fundraising Chili Cook Off.
Tickets are $10 at the door. All proceeds will be split between the Philmont Rescue Squad, the Philmont Fire Department and the Mellenville Fire Department – there will be live local music and you get to eat chili and vote for your favorites.
Chili cookers are also welcome.
For info, contact Elizabeth at 672-7346.
Register-Star, Friday, February 24, 2006, Letter to the editor
Planning board not fair to community
To the editor:
Under the leadership of the late Clint Mossman, former chairman of the Philmont Planning Board, meetings were a place where community discussion was welcomed. This better served our community than the current situation where community participation is not allowed.
The Planning Board does not have benefit of weighing additional information and opinions. It is as though the community is seen as an obstacle to overcome.
Why not engage in honest discussion at Planning Board meetings? All board members are SERVANTS of ALL the people!
People have different backgrounds, different experiences. These can be assets to all when we work together and learn from one another.
Bottom line is we are neighbors and want many of the same things.
Carolyn Stern
Philmont
Concerned citizens challenge Summit Heights proposal
Register-Star, Thursday, February 23, 2006
PHILMONT -- A group of Philmont residents, challenging the Philmont Planning Board and Village Board's review of the Summit Heights II proposal, announced today their intention to take their case before a five-judge panel of the Appellate Division.
This action follows the Feb. 15 vote of the Planning Board to approve plans for a 69-unit subdivision overlooking Summit Lake.
According to the group's attorney Marc Gerstman, former General Counsel of the Department of Environmental Conservation (DEC), the Planning Board's vote "ignored the facts and the law."
The petition contends that the village failed to comply with essential provisions of the State Environmental Quality Review Act (SEQRA) in their review of the application.
In addition, the petition says the village overstepped its authority in revoking a court stipulated conservation easement intended to protect "in perpetuity" 10.92 acres of open space between Summit Lake and the proposed development.
Explaining her motivation in pursuing the appeal, Sheri Bolevice said, "I feel that it is my moral obligation to pursue justice for the sake of all residents of the Village. We now face an undetermined tax burden in addition to the potential destruction of our last scenic open space."
The Article 78 appeal will entail the reconsideration of arguments challenging early decisions of the village and Planning Boards going back to the spring of 2005. Among the points to be emphasized are the following:
The Appellate Division has given the Philmont petitioners until March 20 to "perfect" their appeal. In addition to legal briefs, the appeal process calls for oral arguments before a five-judge panel.
Another petitioner Christopher Reed said "It will be the first time that Robert Fitzsimmons, the Village Attorney, will have to justify before a judicial panel his handling of the Summit Heights issue. In the opinion of many observers, Fitzsimmons consistently slanted the Village's review to the disadvantage of legitimate community interests and to the advantage of an aggressive out-of-state developer."
An earlier decision in Columbia County Supreme Court affirmed the standing of Philmont residents to file their petition but chose to give the village broad latitude in handling its review. "We believe the correctness of our original position has only been confirmed," said Bolevice, "by the numerous issues that emerged in the months since the lower court's decision."
According to Jean Giblette, "The Planning Board had the chance last week to correct earlier mistakes. Instead they compounded them. A successful appeal, by directing the Board to start over, would not only nullify decisions we consider damaging to our community's long term interests but also place the village in a much stronger negotiating position in the future."
According to the petitioners and others who have spoken up publicly, the village and Planning Boards in their SEQRA review failed to anticipate or adequately consider the following:
The group has raised two thirds of its overall legal expenses.
"We are encouraged," said Reed, "by the growing willingness of citizens to show their support in donations, participation in public meetings and signing statements calling for the denial of this proposal."
Checks should be made payable to Marc S. Gerstman, Esq. and mailed or delivered to Sheri Bolevice, 50 Church Street, Philmont 12565. For further information, call Sheri Bolevice at 672-4625 or Christopher Reed at 672-7743.
To read key documents about this case, consult http://www.claverack.org/news_philmont.html.
Summit Heights plan is OK'd
Board approves development 4-to-1
By John Mason, Register-Star, February
16, 2006
PHILMONT -- The Village Planning Board gave the Summit Heights housing development final plat approval by a four-to-one vote Wednesday.
The 69-unit development will straddle the crest of a hill overlooking Summit Lake reservoir. There are lots on either side of an earlier phase of the development approved in 1991, but only partially completed at that time.
All infrastructure improvements must be done within five years.
Thirteen lots will be located to the south, off Catskill Court, and 56 lots on the north side, adjacent to the wooded conservation easement that was the subject of heated debate when the developers announced they needed to violate it for their stormwater detention ponds.
The developer, Philmont Ventures, agreed to donate to the village two conservation areas, one of 11.122 acres adjacent to Summit Lake, and the other of 20.18 acres on the south side of the development.
In addition, the village will receive $50,000 for public recreational areas upon signing of the subdivision map.
There will be only 15 open building permits allowed at any one time, to limit construction traffic. Each lot will be charged a $100 recreation fee when built, for a total of $6,900, and another $300 when occupants move in.
According to the board's resolution, the conservation areas and recreation fees satisfy the village code's requirement for recreational land.
The requirement for sidewalks was waived by the board, "due to the nature, layout and road profile of the development." Swales and culverts will stand in for the required curbs and gutters "where necessary."
A pole light will be placed upon each building lot.
The project is backed by four bonds, a construction bond of $2,460,000, a maintenance bond of $492,000, an engineering, inspection and legal costs bond of $73,800, and an insurance bond of $1 million.
During the discussion, board member Sean Ryan was the only one raising substantive questions, and he had a long list of them.
He said he would like to "retable sidewalks."
At first, he said, he didn't think they were necessary, but since then had talked with "a lot of people, and 100 percent think it's important. I think we should revisit it." But Ryan was outvoted by his fellow board members, who considered the waiver settled.
Ryan said he wanted to see a financial analysis. Village Attorney Robert Fitzsimmons spent much of the rest of the meeting leafing through a foot-high tablet of Philmont Ventures related material, and finally found that the impacts would be $1,936 per house in tax revenue, if the houses sell for $200,000, a total of $135,529 for 70 houses.
"I don't think these houses are going to sell for $200,000," said board member Mitch Elliott.
An audience member noted that there was no mention of "expenses."
Among other suggestions, Ryan also said he would like to see more trees planted and he would like to see the area closest to the conservation easement developed last.
No other board members supported any of his suggestions.
When the vote came on the site plan approval, Ryan was the sole vote against it, with Board Chairman Charles Nichols, Elliott, Lee Hayward and Judy Tice voting in favor.
Nichols began the meeting by distributing some correspondence to the members. The first, reportedly, was an unsigned download from the Internet, concerning court judgments against Alfred Mattikow, who has been representing Philmont Ventures before the board.
Nichols called it "childish," saying "it does not deserve much attention," and did not divulge its contents.
The next, reportedly, was a letter to the board with 75 signatures. The letter, among other things, asks for the appointment of an independent attorney to consult on the application, and an independent financial study of its impacts.
Noting that there was "no indication of who created it," Nichols called it "an extremely childish way to behave," and directed board members "whatever weight you choose to give it is up to you." He did not announce its contents.
The third was a letter from Marc Gerstman, an attorney for Philmont residents, which Nichols said dealt with the same matter as the anonymous letter.
"I believe it's another childish attack on this subdivision," said Will Stevens, an attorney for Philmont Ventures. "For an attorney representing the opposition to try and derail this project by impugning Mr. Mattikow's reputation is unprofessional."
Nichols noted "There's a widespread misconception that Mr. Mattikow is the developer.
He has never represented himself as such. He's trying to get it approved so it can be sold."
He asked for board members' opinions on whether this deserved consideration.
Fitzsimmons said the project wouldn't go forward if there weren't a $2.46 million bond posted.
"I don't think this strengthens Mr. Mattikow's position," said Ryan. "It looks like there might be a pattern here. What else is in the closet? It increases the risk and liability for the village. Is the village going to be left holding the bag?"
Tice recalled that Mattikow is not part of Philmont Ventures.
Stevens said the corporation is made up of three individuals, two of whom were at the meeting -- "solid citizens -- I've known them quite some time."
To laughter from the audience, he then revealed that the third member of the corporation is Nina Mattikow, Alfred's wife.
He said the bond would provide adequate security for the village, and that any successor companies would have to put up new bonds before they could acquire the property.
"What if a lien is put on the bond?" asked Sally Baker from the audience.
"You're out of order," Nichols said. "Put it in writing."
"Too late," Baker said. "Stop," ordered Nichols.
Our View
Register Star, February 15, 2006
Board should vote ‘No’ on Summit Heights housing development
Carolyn Stern, a former Philmont Planning Board member, said it best when she wrote in a recent letter to the editor of this paper. “The citizens of this village deserve more than being a rubber-stamp to a developer only interested in profit.”
What Stern is referring to is an issue to go before the village planning board tonight at 7 p.m., Summit Heights, which proposes to give final plat approval—basically, site approval—to a 70-unit housing development to be built on a crest of a hill south of the Summit Lake reservoir.
This development has been a source of contention since its inception—and rightfully so. First, a six-resident petition filed with the state Supreme Court challenged the legitimacy of the environmental review of Phase II on the Summit heights development. The article 78 proceeding was dismissed saying that the village and the planning board complied with all SEQRA requirements.
However, due to recent developments, even the village of Philmont has come out against this development. On Monday night, the board passed a resolution urging the Planning Board to “exercise restraint in voting” on the project and to “take more care about the issues at hand.”
In addition to the fact that this project would change the rural character of Philmont forever, negative news has come to light about Summit Heights developer Alfred Mattikow. A recent judgment brought against Mattikow in the state Supreme Court Appellate Division, charges him with failure to pay a promissory note of $175,000, which he signed in 1989. The judgment asks for $797,993.70 in damages.
The judgment also cites instances where Mattikow would allow years to pass between proposals based on speculative real estate ventures.
This should be a blazing red light to Philmont Planning Board members. Vote “No” on this development.
Mattikow, representing Philmont Ventures, has no stake in the village. It does not care if the plan in Philmont is poorly designed or will change the character of the rural village forever. He does not care about the village or its residents losing any money in this venture. We, however, as the newspaper of record in the county, do.
Change and development can be good. However, in this case, there needs to be more discussion among the Planning Board and village citizens as to the development that is proposed for this hillside area.
We do not believe the board has considered the full impact of its decision. Discussion still needs to take place around maintenance of the proposed roads, stormwater detention depressions, any damage to the reservoir nearby and the real estate market in the area. Will these proposed homes raise taxes too much for current residents to handle? Will the increase in population cause other issues to arise? Other issues residents question include lack of sidewalks, damage to Summit Lake due to runoff and the abandonment of the conservation easement.
For these reasons—and many others—we urge the Philmont Planning Board to not give final plat approval to this project.
Publisher: Roger F. Coleman
Executive editor: Theresa E. Hyland
Village urges 'restraint' in vote
Board passes resolution that Planning Board take more care about the issues
at hand
By John Mason, Register-Star, February
14, 2006
PHILMONT -- Presented with new information on Summit Heights developer Alfred Mattikow, the Village Board passed a resolution Monday urging the Planning Board to "exercise restraint in voting" on the project and to "take more care about the issues at hand."
The Planning Board may consider final plat approval for the 70-unit development, which would be sited on the crest of a hill south of the Summit Lake reservoir, at its meeting Wednesday. Board Chairman Charles Nichols said the application is "in its endgame."
The resolution passed the village board by a vote of two to one. Mayor Clarence Speed was absent. Serving in his place. Trustee Bryan Johnson could only vote in the case of a tie.
Correspondence casting new light on Mattikow was received by Village Attorney Robert Fitzsimmons and cc'ed to the village board. While this correspondence was not available to the public, a search of the Internet revealed a recent judgment against Mattikow in the amount of $797,993.70, for failure to pay a promissory note of $175,000 he signed in 1989. The action was brought by Paul Iorizzo et al, in the state Supreme Court, Appellate Division.
The judgment cites "evidence of a prolonged and tortured history of settlement discussions, where Mattikow would allow years to pass between proposals based on speculative real estate ventures the success of which allegedly hinged on the plaintiffs' forbearance from entering a judgment in this action. These elusive offers would materialize only after persistent requests for the resumption of negotiations and repeated threats of continued litigation from plaintiffs' counsel."
It also notes that Mattikow "relocated his residence without notifying his creditors of his change of address."
Trustee Barbara Sagal introduced the resolution, citing "new issues" that had surfaced.
"For how long?" Johnson asked. "It's been two years now."
"They need to look at the issues, go back and make sure they're doing the right thing," Sagal said.
"It's a kick in the teeth to the Planning Board," Johnson said.
"After a public hearing, you revisit the issues," Sagal said, referring to the planning board's Jan. 18 hearing.
Trustee Joseph Krein asked what Fitzsimmons, who had left the meeting early, had had to say about it.
"He said ... supposedly the character of a person doesn't matter as long as they meet all the demands and it seems proper," Sagal said. "For me, character plays a big part in it."
"Rob Fitzsimmons received an important letter that has to do with the business practices of the person submitting this application," said Main Street resident Christopher Reed. "It's entirely reasonable for Barbara Sagal to be saying the planning board should take its time considering the record of this person, who has made promises to the villagewhich in other cases he's not kept."
"What the planning board's voting on has nothing to do with this person," Johnson said. "They're voting on engineering."
"He's offered to pay $50,000 to the village," said resident Carol Freedman. "This is a man who has not been faithful to his debts. You are our trustees."
"The planning board is scared of this man because they think he's going to sue," Reed said. "We don't have sidewalks, we lost our conservation easement: You're giving away the store to someone from outside the village. How much evidence do you need to hesitate to give this man what he wants?"
Resident Sally Baker said the village and planning boards were supposed to be coordinated boards, and Freedman said there were supposed to be joint meetings between the two, which only happened once.
Resident Tom Buckner urged the board to say, "Can we take a breath here, hold it off for another month, see what the implications are? It would be a safety valve for everyone here."
When the resolution came to a vote, Krein said, "I would hope they would always look and be careful, so I'll second it." Sagal and Krein's "yes" votes trumped Trustee Douglas Cropper's lone nay.
Earlier in the meeting, Sagal asked Fitzsimmons to explain how the developers would post a bond.
Fitzsimmons said there were three alternatives: an irrevocable letter of credit for $2,460,000, which is what the infrastructure construction would cost -- "if the work isn't done, the village has the money to tap into," he said; a bond, which would "do the same;" or a deposit of that amount, which Fitzsimmons said would be unlikely.
"Is there any way a person could prevent us from getting the payment?" Sagal asked.
"To cash in, there has to be an allegation that it's not done properly," Fitzsimmons said. "There's always the possibility of dispute and litigation over any problems with infrastructure."
At the Jan. 18 public hearing, 19 persons spoke against the development, according to Reed; no one spoke in favor of it. Some issues raised included: The lack of sidewalks, "symptomatic of a car-dependent, suburban-style development within a village;" continued damage to Summit Lake due to increased runoff; a 76 percent increase in use of hazardous Summit Street, with its 12 percent grade, bridge and curves; the abandonment of the conservation easement; increased costs to the village outweighing benefits.
Letter to Village Attorney Robert Fitzsimmons, Esq. from Marc S. Gerstman, Esq.:
February 13, 2006
(VIA FACSIMILE AND FIRST CLASS MAIL)
(518) 828-2420 FAX
Robert Fitzsimmons, Esq.
Law Offices of Connor, Curran & Schram, P.C.
P.O. Box 77
441 East Allen Street
Hudson, New York 12534
Re: Philmont Ventures, LLC - Summit Heights
Dear Mr. Fitzsimmons:
This Law Office represents petitioners in the Article 78 proceeding regarding the proposal by Alfred Mattikow and Philmont Ventures to develop Phase II of the Summit Heights Subdivision.
It has come to my attention that Mr. Mattikow, the principal behind Philmont Ventures, was the subject of a recent decision by the Appellate Division, Second Department. It appears that Mr. Mattikow and his company, Maypat Realty, defaulted on a promissory note. As a result, plaintiffs were authorized to enter a default judgment in the amount of $797,993.70. The decision and its findings regarding Mr. Mattkow's business practices must be carefully considered by the Planning Board before it takes any action to approve the subdivision. Indeed, the judicial findings regarding Mr. Mattikow's conduct cast grave doubt on whether the Planning Board can reasonably rely on his representations regarding the proposed Summit Heights subdivision.
Petitioners believe that the Court's description of Mr. Mattikow's conduct provides the basis on which the Planning Board should reevaluate the Summit Heights subdivision and the Village Board's amendment of the Conservation Easement. A copy of the decision is enclosed. In addition, as you may be aware, Mr. Mattikow was disbarred for misappropriation or misapplication of his clients' funds in 1994. A copy of the Order, dated April 18, 1994, is attached for your review. Finally, in a decision entered by the Appellate Division, Second Department on February 14, 2005, the Court found that, based on depositions taken in that case, Mr. Mattikow may have been using his wife and her businesses to conceal income and assets.
Mr. Mattikow's reported conduct and business practices strongly suggest that he can not be relied on by the Planning Board in its review of the Summit Heights subdivision. Mr. Mattikow has apparently not hesitated to avoid his contractual obligations and professional responsibilities. Such conduct should raise serious doubts whether Mr. Mattikow will conduct himself differently in the Village of Philmont.
This information is provided to you so that you may advise the Planning Board and Village Board of the potential severe consequences to the Village and its residents and the future residents of Summit Heights in the event that Mr. Mattikow continues his business practices, which have been found on at least two occasions, to violate good business and professional practices. Please call me if you have any questions.
Very truly yours,
Marc S. Gerstman, Esq.
cc. Planning Board of the Village of Philmont
Village Board of the Village of Philmont
Letter to Charles Nichols, Philmont Planning Board Chair, which was signed by more than 75 local residents:
February 12, 2006
Charles Nichols, Chairman
Planning Board
Village of Philmont, NY 12565
Dear Mr. Nichols:
During the course of the Public Hearing held Wednesday, January 18, 2006 several matters came to light that raise serious questions about the validity of, and justification for, the agreements concluded between the Planning Board and proponents of the development known as Summit Heights II:
In view of this, we urge the Planning Board members and Board of Trustees:
We believe the Board members should use the utmost restraint and care before proceeding any further towards acceptance of the current proposal. Short-sighted viewpoints and planning can have enormously negative, sometimes unforeseen consequences. Past Village officials, even if well meaning, made enormous blunders in the conceptualization and execution of our water and sewer system, leaving residents with costly liabilities for literally generations to come. It would be a travesty to similarly rush to hasty acceptance of a development plan that could prove to be even more onerous to Village life, even more costly to Village residents.
Iorizzo v Mattikow
2006 NY Slip Op 00630
Decided on January 31, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 31, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
STEPHEN G. CRANE
PETER B. SKELOS
MARK C. DILLON, JJ.
DECISION & ORDER
2005-01469
[*1]Paul Iorizzo, et al., respondents,
v
Alfred Mattikow, et al., appellants, et al., defendant. (Index No. 3743/95)
Joseph J. Haspel, Goshen, N.Y., for appellant.
Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Matthew
G. Parisi and Leah R. Pizer of
counsel), for respondents.
In an action to recover on a promissory note, the defendants Alfred Mattikow, Drexel Construction Corp., Maypat Realty Corp., and Charles I. Alfred Building Corp. appeal from a judgment of the Supreme Court, Westchester County (Murphy, J.), entered December 22, 2004, which, upon so much of an order of the same court entered August 11, 2004, as granted that branch of the plaintiffs' motion which was for a default judgment against the defendants Alfred Mattikow and Maypat Realty Corp., is in favor of the plaintiffs and against the defendants Alfred Mattikow and Maypat Realty Corp. in the principal sum of $797,993.70.
ORDERED that the appeal by the defendants Drexel Construction Corp. and Charles I. Alfred Building Corp. is dismissed, as those parties are not aggrieved by the judgment (see CPLR 5511); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The plaintiffs demonstrated sufficient cause as to why this action should not be dismissed pursuant to CPLR 3215(c), and why they were entitled to a judgment against the defendants Alfred Mattikow and Maypat Realty Corp. almost nine years after those defendants defaulted in appearing in the action.
An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter (see CPLR 3215[c]; [*2]Greenpoint Bank v Ginyard, 253 AD2d 451). In order to avoid the dismissal of the action as abandoned, the plaintiff must offer a reasonable excuse for the delay and demonstrate the merits of the action (id.; see State Farm Mut. Auto. Ins. Co. v Rodriguez, 12 AD3d 662). Here, service of the summons with notice was completed upon Alfred Mattikow and Maypat Realty Corp. in June 1995. Although the plaintiffs did not move for a default judgment until May 2004, the Supreme Court correctly determined that the plaintiffs offered a reasonable excuse for this delay.
The plaintiffs presented evidence of a prolonged and tortured history of settlement discussions, where Mattikow would allow years to pass between proposals based on speculative real estate ventures the success of which allegedly hinged on the plaintiffs' forbearance from entering a judgment in this action. These elusive offers would materialize only after persistent requests for the resumption of negotiations and repeated threats of continued litigation from the plaintiffs' counsel. In light of this documented history, it was not unreasonable for the plaintiffs to delay more than two years from their counsel's last communication with Mattikow before moving to enter judgment on the default. The fact that Mattikow relocated his residence without notifying his creditors of his change of address only provided greater justification for the delay. In any event, the evidence of ongoing negotiations demonstrated that the plaintiffs had not abandoned the action (see Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919, 920; Micheli v E.J. Bldrs., 268 AD2d 777, 779; First Nationwide Bank v Pretel, 240 AD2d 629; Corbin v Wood Pro Installers, 184 AD2d 234; Hinds v 2461 Realty Corp., 169 AD2d 629, 632; Rosenbaum v Ace Tr. Corp., 112 AD2d 210).
As to the meritorious nature of their claim, the plaintiffs introduced the promissory note issued by Maypat Realty Corp. (hereinafter Maypat) on September 1, 1989, in the amount of $175,000. The note was duly executed by Maypat's President, Alfred Mattikow, on behalf of the corporation. The note was personally guaranteed by Mattikow. The affidavit of the plaintiff Paul Iorizzo established that no amount of principal or interest had been paid on the note although same was demanded. Mattikow acknowledged the debt in a draft settlement proposal he sent to the plaintiffs' counsel on May 5, 1994, and at least twice thereafter.
Under these circumstances, the Supreme Court's decision to excuse the plaintiffs' delay and grant that branch of their motion which was for leave to enter a default judgment against Mattikow and Maypat was a provident exercise of discretion, especially in the absence of any prejudice to those defendants caused by the delay. The remaining contentions of those defendants are without merit.
H. MILLER, J.P., CRANE, SKELOS and DILLON, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Register-Star, February 11, 2006, Letter to the editor
Wants to start a voting group
To the Editor:
Let's start a regional verified voting group today! Voting activists in Ulster, Columbia, Dutchess and elsewhere in the Hudson region can unite to ensure election integrity.
I propose the group be named "Mid-Hudson Verified Voting." I'm happy to discuss other names.
We can be a chapter of New Yorkers for Verified Voting; Bo Lipari has said that NYVV.org wants to create chapter groups.
I am willing to create a Web site for the group. We can handle sign up, information posting, event listings all through this web site.
Who is in?
We need to act on this right away as the voting machine issue is a fast-moving target. Please send me your thoughts, insights, comments as soon as possible.
Vicky Perry
Red Hook
Register-Star,
Friday, February 10, 2006
My View: Planning board should not 'rubber stamp' development
by Carolyn Stern
Former planning board member, Philmont
To the editor:
The Philmont Planning Board is made up of dedicated hardworking citizens, not professionals. When I was appointed as a planning board member in September 2004, I did not receive any training before or during my time as a PB member. It is not mandatory for PB members to receive the free training, provided by NY State. In a development on the scale of Summit Heights, this is a liability.
As a member of the Planning Board, I had the responsibility to read and thoroughly examine copious amounts of blue prints, topographical maps, wetland maps, infrastructure plans and much more. There was an overwhelming amount of technical information, and often we would receive massive changes just days before, or even at a planning board meeting. It was impossible to wade through all this material with full comprehension as a lay person, and especially without training. All along the Board was responsible for making crucial decisions. I crammed as much as I possibly could.
The Board was led through the process by our attorney and engineer. Often we were forced to rely on our attorney and engineer, because of our own lack of full understanding.
Many planning boards have independent professionals to guide them through such a process. I wonder if Planning Board members fully understand the final plans, or are relying on the village engineer and attorney.
As a former Planning Board member, and current member of the Main Street Committee, Philmont Beautification Committee, former member of Friends of Philmont Library, and 19 year Philmont resident, I believe in serving my community. I care about this village and expect decisions to be made by our government with a full understanding of the impact on this village, now and in the future, for generations to come. Unfortunately, lay board members are in the position of making decisions that are out of their league, and without the aid of INDEPENDENT professional consultation.
Both the planning board and village board have suffered from inadequate, professional, guidance, in both legal and engineering matters throughout this entire process. Some planning board meetings took place without the village engineer being present. During one planning board meeting some board members requested an independent cost analysis of this project. This never happened. We changed engineers, and at the village board public hearing on the conservation easement, a supervisor attended. He had no documentation to refer to and wasn't able to make comments. This was an important public hearing.
Thus it was easy for the developer to keep us in the dark and gain an advantage over the village. Another example is the spreaders, which divert the runoff that will drain into the storm water "ponds". Cement structures only became clear as to their size and placement AFTER the vllage board voted to amend the conservation easement. Why was this? Would the Village Board have voted differently if the scope of these structures had been apparent then?
The developer has no stake in this village. He only seeks to reap financial gain without regard to future impact and the many future costs and liability to Philmont from a poorly designed plan. He is entitled to a return on his investment, but not at the expense of the village citizens and the village land. This village is now confronted with a development which will forever change it's character.
Change and development is good and inevitable but it should relate to the current physical layout of Philmont, which is a well planned village. It is a very "walkable" village and that should continue. The development as it is planned is just plopped down on the land like suburban sprawl, with no relationship to the existing topography...a steep hillside.
Instead of enforcing our own zoning laws the planning board deferred to the developer's demands. Is the issue here really the cost of sidewalks and catch basins, as opposed to ditches?
I would like to see a list of all the waivers given to this developer. Where is the compensation for the village? He has given the village much added liability and maintenance, and $50,000. Is this just?
It concerns me that there may be momentum to wrap this up because it is tedious, stressful work. It disturbs me that more time was given to discussing clothes lines and swimming pools than exploring the many substantive issues raised by citizens and board members, both past and present.
Changes being made to the plans do not deal with the actual problems caused by this development. There are many liabilities for the village ahead if this development passes in its present form, including maintenance of roads, stormwater detention depressions and related structures, damage to the reservoir, and replacement of booster pumps. In the currently softening real estate market there may be little tax revenue increase and much for the village to maintain. Our taxes will go UP!
At the January 18, 2006 public hearing major concerns were raised by village residents, but we were told these concerns had been settled. The only other public hearing took place in order to grant so called "conceptual approval", which is not part of the village subdivision code. At this time the details were not a part of the developer's plan. Residents were not allowed to speak during planning board meetings, and now we are faced with final plat approval and told these decisions are final. When was the time for viable citizen input? The citizens of this village deserve more than being a rubber-stamp to a developer only interested in profit.
[Note from Chris Reed: Recently I had a conversation with a friend who works for the NYC Department of Environmental Protection on watershed management issues. He said that his colleagues are acutely aware of
changes in weather patterns due to global warming and the effects of tropical downpours such as we have been experiencing this winter on regional dam safety and other water control systems not built to handle such stresses. The following item about the landslide in Greenport earlier this week should provide yet another wake-up call about the wisdom of clearcutting and intensive building on such sensitive areas as Summit Hill in Philmont with its 12% (or greater) grade.]
Earthen dam threatens homes
Debris from landslide holds back creek, posing downstream concern
Times-Union, Sunday, February 5, 2006
GREENPORT -- Officials are concerned that an earthen dam that formed when a landslide tumbled into the Claverack Creek earlier this week may break apart, threatening downstream homes.
The new fears prompted local and state authorities to declare a limited state of emergency and to reopen a command post on the site where a 300-yard-section of embankment tumbled into the creek on Thursday.
The landslide has diverted Claverack Creek from its normal path and has led a considerable amount of water to build up behind the massive pile of earth and rock that was formed.
"We're concerned that if the blockage lets loose, a sudden surge of water will come through, especially in low lying areas," said town of Stockport Supervisor Leo Pulcher.
A couple dozen homes in Stockport, about two miles downstream from the landslide, lie in the creek's path, Pulcher said. Officials plan to continue around-the-clock presence at the site, in case the dam begins to give away.
If it does, authorities expect high water that could dampen homes, but not a massive flood.
"You're not going to have a 15 or 20-feet wall of water coming through," Pulcher said. "We just want people to know what's going on."
-- Matt Pacenza
Committee receives $179,264 in funding
Register Star, February 4, 2006
Sally Baker of the Development for the Philmont Beautification Committee announced the "You Can Do It" Revitalization Project has been selected to receive $179,264 funding from the state Housing Trust Fund Corporation for the application submitted to the New York Main Street (NYMS) for facade renovation, building renovation and streetscape enhancement.
The award is 100 percent of the requested grant amount and aims to assist with renovation and restoration at a total of 12 project sites at six buildings on Main Street, Philmont, located between Ellsworth Street and Elm Street, one streetscape structure, lights, and signage.
The Philmont Beautification Committee "You Can Do It" Revitalization Project intends to foster community understanding of how preservation of historic buildings and re-use adaptive renovations can be an effective tool for boosting the local economy, strengthening community pride, and stimulate economic revitalization of the existing mixed-use downtown. In this way, the project aims to encourage a more informed community on the aspects of smart growth that provides a place to live, play and create community.
The project additionally aims to lead to increased employment, increased economic activity, and provides local construction and professional service opportunities. The Streetscape component will include a master-craft youth apprentice stone masonry component to preserve the historic local craft of granite stone wall building.
Community outreach educational components aimed at informing residents on the progress of the "You Can Do It" Revitalization Project will be held on a quarterly basis, and will include presentations made by project participants on the renovation rehabilitation process of particular project buildings, and project site walk-through educational promotional tours.
Outreach presentations will include information on how to increase home ownership in the village of Philmont by low-income tenants, weatherization assistance, information for minority-women owned businesses, artisan business building, across-the-ages community participation and information regarding local funding programs aimed to increase business and employment opportunities within the community.
For more information regarding the award, call Baker at (518) 672 7556 or Barbara Sagal, director, at (518) 672 7152.
The Philmont Beautification Committee is a fund of Berkshire Taconic Community Foundation a 501 (c)(3) organization.
Botanical garden wins $200K grant
By: RICHARD ROTH
The Independent, 01/31/2006
CLAVERACK-The High Falls Garden Fund, under the auspices of the Berkshire Taconic Community Foundation, has been awarded a $200,000 grant from the W. K. Kellogg Foundation for a three-year program, Botanical Studies for Oriental Medicine.
Philmont resident Jean Giblette has directed High Falls Gardens, a three-acre medicinal plant farm southeast of Philmont, since 1997. The garden produces about 100 medicinal herbs, and it is one of 15 teaching sites around the country associated with graduate colleges of oriental medicine.
Ms. Giblette says the Kellogg grant will help medicine students get to know where their herbs come from, how they are grown and who grows them. "This is a different way to understand the healing power of plants," she says. "I made the argument to the Council of Colleges [of Acupuncture and Oriental Medicine] that we have absolutely got to give the students an understanding that is in context."
In contrast, says Ms. Giblette, the Western scientific approach has been "to mine the plants for chemicals and turn them into drugs," an approach that she views as having two important flaws: it's an expensive process, and it overlooks the complexity of the natural world.
"Why do we take a simple substance like a drug and expect it to help us?" she asks. "It's like using chemicals on the soil instead of compost, which enriches the complexity."
Students who come to High Falls Garden from New York City and Boston will not only be able to see and smell living plants in a natural habitat; many of them will also be seeing freshly dried herbs for the very first time. Most of the herbs currently being prescribed are imported from China. By the time they reach their destination, many of them are completely brown. "The difference between fresh dried herb and once that's been sitting on the boat for a year is quite dramatic," says Ms. Giblette.
The three-year program at High Falls Gardens and the other teaching sites will also help students and practitioners of Oriental medicine develop the capacity to evaluate the quality of domestically grown herbs. "We have to prove the quality, because a New York herb may be different than one from North Carolina," says Ms. Giblette. "And we have to develop a base of people in the medical profession who know how to do this."
The Chinese Materia Medica lists more than 7,800 plant species with specific medicinal uses, including such common ornamental plants as peonies, quince and hawthorn. Ms. Giblette says that amounts to nearly one-third of all known Asian plant species. And she points out that Chinese have a 2,500-year history of studying the medicinal qualities of plants. "The Chinese were already literate [2,500 years ago]," she says, "so everything was written down."
Chinese herbalists generally combine several plants in the same formula, both to maximize their healing power and to reduce the possibility of unwanted side effects. "It's an entirely different point of view," says Ms. Giblette. "It's quite exciting, and it's one explanation for the growing popularity of oriental medicine."
Ms. Giblette says local farmers and gardeners need not worry that the newly introduced oriental species will be invasive, as such things as kudzu have proven to be in the past.
"I get asked that a lot," she says. "But we're really not working in the dark here. They're temperate zone plants from common food plant families, and some are very close to what we already have here."
High Falls Gardens grows trees, shrubs, vines, and some annuals on a three-acre site near the intersection of Stevers Crossing and Martindale roads. "The creek bed gravelly soil at our current location is better than the enriched soil of an organic farm," says Ms. Giblette. "Well drained soil is the primary criteria. Herbs can take poorer soil than growing vegetables."
For Ms. Giblette, part of the joy of the study now being funded will be in seeing herbalists working together with growers. "I really enjoy the process of getting the farmers together with the practitioners," she says. "They're working on the same view of nature and the same view of health, that you have to treat complexity with complexity. Maybe herbal formulas are compost for the body."
To contact reporter Richard Roth, e-mail rroth@indenews.com.
Philmont critics hammer Summit Heights proposal
By Susan Womersley
The Independent, January 31, 2006
PHILMONT—The January 18 meeting of the Planning Board was standing-room only, as residents presented their views on the Summit Heights Phase II development. Many brought visual aids that included maps and statistics, while others read prepared letters to the board during the lengthy public hearing.
The list of complaints about the 70-unit project include the lack of sidewalks and street lighting, fears that the system proposed to handle the stormwater runoff would add to the already poor health of Summit Lake, the impact of that system on the conservation easement at the site, the cost to the village of having to maintain and service the system, and the traffic and strain on the local infrastructure that would be caused by the proposed development.
Charles Nichols, chairman of the Planning Board, intermittently deferred comment on issues that were presented to Village Attorney Robert Fitzsimmons and the village engineers, who were present at the meeting. Mr. Nichols also offered an opportunity for rebuttal by the developer, Alfred Mattikow, who attended the meeting. Other than Chairman Nichols, no other members of the Planning Board commented.
Mr. Mattikow defended the project and said that issues like the lack of sidewalks and street lighting had already been reviewed and approved, and the approval process has now progressed beyond the point where anyone could change the outcome. He also said that the project has received all the permits required by the state Department of Environmental Conservation for such things as stormwater runoff and soil quality.
Opponents lost a court battle last fall, after a judge rejected their challenge to the part of the proposed project that calls for stormwater retention ponds in an 11-acre conservation easement. [The legal petition, which challenges the Planning Board’s compliance with the State Environmental Quality Review Act, has been taken to the Appellate Court.]
As many as 15 of the more than 30 people attending the hearing spoke, with the sentiment of the audience strongly opposed to the project.
One additional concern of some residents involves economic projections, which came from the developer rather than a disinterested third party. Reading from prepared statements, former Planning Board members Carolyn Stern and Carol Friedman voiced those concerns. Ms. Stern stated that “both the Planning Board and Village Board have suffered from inadequate professional guidance in both legal and engineering matters throughout this entire process.”
Joining Ms. Stern in those sentiments was Ms. Friedman, who owns a home in what is called the Summit Heights I development, and is a former acting chairman of the Planning Board and member of the Planning Board for 10 years. “I can tell you from personal experience that from the beginning, the planning process [for Summit Heights II] was unlike any that had gone before. And not in a good way,” she said. “It was very clear from these first days that the developer, not the village, was running this show.”
Ms. Friedman also faulted the Planning Board for not allowing public comment on the proposal at regular Planning Board meetings, calling that “a tremendous loss to this village.” She said that put Planning Board members “at a disadvantage, requiring them to anticipate in isolation every possible question and issue regarding this complex project and, in the long run, it has prolonged and diverted their review of the real issues.
Christopher Reed, a Main Street homeowner, was also concerned about Phase II of the development. He said, "If the right questions are asked and dealt with honestly, if you don't allow fear to get between you and your common sense, if you own up to the power you have, I see no alternative but to deny approval for this misconceived proposal. The Planning Board has the power and the obligation to vote no and to instruct the Village Attorney to assemble ample justification for its decision." Mr. Reed, along with other residents, suggested that a public meeting be held with financial analyst James Sheldon, a Gallatin resident and columnist for this newspaper, so that members of the planning committee could hear an opinion other than the developer’s on the cost/benefits of the Summit Heights II development.
The meeting concluded at 10:30 p.m. with the decision to postpone a vote on the final plan approval until the Planning Board meets again in February.
January 24, 2006
Charles Nichols, Chairman
Planning Board
Village of Philmont, NY 12565
RE: SUMMIT HEIGHTS II
Dear Mr. Nichols:
This letter is in regard to a statement I made at the Public Hearing on January 18, 2006. I stated that the Planning Board had waived preliminary plat approval on this project. The Developer corrected this statement. He indicated that the Planning Board had approved the Preliminary Plat, as reflected in the June 15, 2005 meeting minutes.
I have reviewed the minutes to the meeting, and I stand corrected: Preliminary Plat approval was granted on that date. However, I would like to know how and why the Preliminary Plat was reviewed and passed, with waivers, when there had been no prior public hearing?
Last week at that same Public Hearing, several members of our community stated that sidewalks in our Village were necessary and should not be waived for this subdivision. The Planning Board response that it was "too late" to address this issue.
When would have been the appropriate time to address sidewalks, SEQRA, and all other decisions, additions, waivers, and modifications since March 16, 2005? All planning board meetings have been closed to public comment.
I happened to be present for at least a portion of the June 15th meeting, when decisions regarding waivers of required improvements were made by the Planning Board. During the discussion on sidewalks, some residents present requested an opportunity to speak. They were not recognized.
They were told they would get a chance to present their views to the Planning Board at the next Public Hearing. They were not told that it would then be "too late".
Based on the fact that the Planning Board failed to follow the appropriate procedure for approval of a preliminary plat for a major subdivision (Section 130-8 of the Village Zoning Code), I respectfully request that preliminary plat plan review be re-opened. I further request that the Planning Board consider and review all information received at the Public Hearing on January 18, 2006 and from other sources, and address, in writing, all waivers and modifications granted to this proposal since Conceptual Approval was given in March of 2005.
Thank you for your attention to this matter.
Sincerely,
Carol Friedman
cc: Village Trustees
Open Government is a matter of law, speaker says
By Gail Heinsohn
The Independent, Friday, January 20, 2006
HUDSON—Robert Freeman, executive director of what he says is “the only Committee on Open Government in the world,” offered advice and insight into the workings of the state Open Meetings Law last week at an event that drew a capacity crowd to the Friends of Hudson offices on Warren Street.
Mr. Freeman was the second speaker in a free monthly series being sponsored by FoH to “provide information to citizens within its mission,” said Executive Director Susan Falzon.
With his staff of four, Mr. Freeman told the audience of about 28, “All we do all day everyday is give advice to anybody who has a question about the law.” While his opinions are advisory, not binding, Mr. Freeman said, “The courts have agreed with us 99% of the time.”
The committee was formed in 1974 as a unit of the state Department of State to ensure that the business of government is conducted in view of its citizens. A state legislative declaration says, “The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.”
The committee’s 11 members include 5 government and 6 public members, of which at least 2 are from the news media. Mr. Freeman, who has a degree in law from New York University, was appointed its executive director in 1976.
Since its formation, the committee has written more that 20,000 legal opinions, all of which are available online. Most queries used to come through telephone calls, Mr. Freeman said, at the rate of “about 9,000 a year.” That changed with the advent of the web. In the first 10½ months of 2005, the site received “more than a million hits, from 50,000 visitors—most after business hours.”
The website, www.dos.state.ny.us/coog/coogwww.html <http://www.dos.state.ny.us/coog/coogwww.html> , is more easily accessed by typing the committee’s initials, COOG, into Google, he said.
More than 60 nations have passed laws regulating public access to information, but unlike those laws, New York’s, which took effect on January 1, 1978, “defines what a government record is,” said Mr. Freeman.
“If they’ve got it, and it contains information, it is a record,” he said.
Mr. Freeman went on to define a government meeting. “The state’s highest court said in 1978 any time a majority [of a public body] meets with the intention of conducting public business, that’s a meeting, whether or not there is any intent to take action,” he said.
This includes workshops and workshop sessions.
“And everything is open unless disclosure would significantly hurt either a person, by invasion of privacy, a government’s ability to do its job, or a business in terms of competition,” he added.
Refining the definition further, Mr. Freeman said, “Embarrassment is not one of the grounds for withholding records or for an executive session.”
But the Open Meetings Law does not cover ad hoc committees that don’t perform any government function, he told an audience member from Schodack. That exception, he said, comes under the “Rolling Stones Principle of Law—‘You Can’t Always Get What You Want.” He said the best option for citizens dissatisfied with committees that conduct business in private is to “vote the rascals out and do it yourself.”
The public may be excluded from parts of a meeting when a government body adjourns to executive session. The law recognizes eight specific reasons for which the public may be excluded, including matters that would imperil the public safety, or those that would disclose the identity of a law enforcement agency or informer, discussions of criminal offenses, discussions regarding proposed, pending or current litigation, collective negotiations, discussions of the medical, financial, credit or employment history of a particular person or corporation, discussions relating to the preparation or grading of examinations or of the acquisition or sale of real property where publicity would affect the value. Minutes of the sessions must be provided, just as with open meetings, he said.
To adjourn to such a private session, a member of the body must introduce a motion in public that specifically indicates what will be discussed. In light of this requirement of the law, Mr. Freeman challenged the frequent use of the word “personnel” as justification for excluding the public from meetings, saying that the word does not appear in the law. “Some personnel-related issues must be disclosed,” he said. “The word ‘personnel’ should be stricken from their vocabulary.”
He said government officials also rely on the vague term “litigation” as a reason to close a meeting to the public. He said one problem with these terms is that “when we hear them over and over again, we begin to believe them.”
When one audience member asked how the public is to know whether a board meeting is meeting the requirements of the law for convening in private, Mr. Freeman told her that she had raised a key question. The answer, he said, is: “We don’t. We have to rely on good faith that they’re talking about what they say they’re talking about. My hope is that there’s somebody on every board who is knowledgeable enough to know when the subject drifts and they should go back to public.”
And he said, “The difference between good reporters and bad reporters is that there is somebody on nearly every board who is willing to spill their guts."
“The trend in this country is toward stomping on dissent,” he said. “What is the word for this? Wrong!”
Further, he said, “The law says that if a public body takes action behind closed doors that should have been taken in public, the court may invalidate that action.”
But while he said that the Open Meetings law “has teeth,” he added, “I call them baby teeth.”
Every meeting must be preceded by notice of the meeting, but the law does not require that boards allow the public to speak. When government officials do let people speak, the officials are not permitted to provide their names and addresses nor may officials restrict comments to local residents.
Minutes of meetings do not have to be a verbatim account, he said. “They must consist of a record or summary of motions, actions taken and attendance. No law says they have to be approved. The clerk or secretary must make them available within two weeks,” he said, adding that they may be distributed stamped as “unapproved, or draft.”
If minutes are insufficient, he said, attendees may bring a tape or video recorder to meetings “as long as it’s not disruptive or obtrusive.”
A request for information under the law must be answered within five days. The request must be specific and it must be for existing records. “The government is not required to create a new document to comply with your request,” he said.
When a government body fails to comply, any member of the public may file a legal petition under Article 78 of state law. But the legal expenses may be borne by the person making the request. It comes under the “Tough Noogies principle of law,” he said. “That’s why we need more teeth in the [state’s] Freedom of Information Law.”
He also urged members of the audience to “call a reporter” if they suspect a board has violated the law. The press has power, he said, noting the two reporters in attendance.
Although his committee renders opinions on the state law, he decried the secrecy in some of the elements of the federal Homeland Security Act. Some records are inaccessible forever. “A company that’s polluting can send something to the Department of Homeland Security, and you can’t find out about it,” he said. “People are going to die because of that. Congress was asleep at the switch.”
Mr. Freeman, whose work has earned him awards from the press and from the state Bar Association, said he loves his job. “I am mystified that they pay me to do what I do,” he said. “I feel incredibly fortunate because all of this is consistent with the ideals that some of us grew up with. We wanted to change the world. You can’t always change the world, but maybe you can make a dent.”
Friends of Hudson’s next speaker, attorney Jeff Baker, will speak Thursday, February 16, on the public’s role in the State Environmental Quality Review Act process.
To reach reporter Gail Heinsohn e-mail gheinsohn@IndeNews.com
January 18, 2006
To the Planning Board:
I became a resident of Philmont almost 14 years ago when my husband and I purchased a house in Summit Heights. As some one used to the mishmash development on Long Island, the projected mass of almost 100 homes around a little lake seemed perfectly normal. It would be Long Island with Catskill views. So what? My husband commuted to work 50 miles to the South. I commuted 50 miles north. I could care less about Philmont. All I wanted was a brand new house in a convenient location. Anyway, I knew that Philmont had a building inspector, and a Planning Board. Wouldn't they ensure that the houses were built right and the development proceeded properly?
Problems began almost immediately. My basement and the basement of my next door neighbor flooded after the first spring rain. The heavy clay soil upon which our houses were built did not absorb water very well. Grading issues, magnified by the unforgiving soil, ended up as run-off into our basements. But these turned out to be the minor problems. After about a year or two, only 10 houses were built and then the developer pulled out. Plowing problems, roadwork problems, water pressure problems. Anytime questions arose from the residents of Summit Heights, there was confusion and finger pointing. Neither the developer nor the Village wanted responsibility for the partially completed project. Street lights? Sidewalks? Forget-about-it.
To my surprise, I learned that the Planning Board and zoning in the Village which I assumed were fully functional and overseeing Village development, had only predated my arrival to Philmont by about a year. I also learned that there was a need for citizen involvement in the newly created boards.
I became involved with Village government in 1994. As I learned more about the Village and my neighbors, I began to truly appreciate what Philmont once was and what it could be in the future.
I was appointed to the Philmont Planning Board and served for more than 10 years. I also served on the Committee that developed Philmont's current Comprehensive Plan. I was on the Board of Directors of Housing Resources during construction of Richardson Hall. I served as Vice Chair of the Planning Board under Clinton Mossman. I served as Acting Chair when Clint became ill. I was Acting Chair when Philmont Ventures LLC, this developer, first came before Philmont with his proposal for Summit Heights.
I can tell you from personal experience, that from the beginning, the planning process was unlike any that had gone before. And not in a good way. For one, there was secrecy, confusion and contradictions surrounding each decision.
For example, when the Planning Board first began to review the proposal and I questioned the use of the easement for detention pond purposes, I was advised by the Village Attorney that the matter had already been considered by "the Village." However, when I directly asked then Mayor Phillip Mossman, what had already been considered, the Mayor denied any prior discussion, only adding that Mr. Mattikow was "a great guy to do business with."
It was very clear from these first days, that the developer, not the Village was running this show. I began getting messages that the developer was not happy with the way his proposal was proceeding through the Planning Board. I was told that the developer did not want me to Chair the Planning Board. The Village acquiesced, appointing a new Chair.
And with the new chairman came new rules. One of the new rules: public comment which had always been welcomed and considered at any meeting when Clint was Chairman, was suddenly no longer permitted. This was done without discussion or vote by the Planning Board. To sacrifice the valuable participation of interested citizens during the ensuing months was a tremendous loss to this Village. It put each of you on the Planning Board at disadvantage, requiring you to anticipate in isolation every possible question and issue regarding this complex project. In the long run, it has prolonged and diverted your review of the real issues. But importantly, and most unfortunately, it has fostered a feeling of separation between the Village government and the interests of the people who live here.
This was clearly illuminated during the so-called review of the SEQRA Application. There was absolutely no appropriate leadership of this review. A special meeting was requested by the developer specifically to answer unrelated concerns about the proposal that had surfaced had a prior meeting. Instead the SEQRA application was put to a vote. As a Planning Board member, I was never asked for written comments regarding my review of this application. Despite my ongoing questions and comments that the SEQRA was not complete or accurate, and did not support a negative determination, the SEQRA was reviewed and passed at this one meeting.
Still, the Developer was not satisfied with the conduct of the Planning Board. Whereas first, he only objected to my chairing the Planning Board, now he objected to my voting or even participating in discussions. He had his attorney write to the Village and, in essence, threatened to sue me personally if I continued. Is this a great guy to do business with?
But my experience is not unique. And it was clearly evident to anyone who attended any of the public planning board meetings to discuss the Summit Heights project. The attitude of the developer was one of scarcely hidden disdain for anyone opposing his project, suggesting modifications, or suggesting alternatives to his design and construction plans.
This lack of public discussion and commentary, the on-the-spot changes to established processes, along with the rigid posturing of some Village officials, created the impression of covert dealings and pre-determined outcomes to each decision. Instead of the developer taking the opportunity to answer fair questions about his project, he sought, and often succeeded in silencing anyone who questioned him.
Why have we changed so many processes and waived requirements for this developer? Sometimes changes need to be made to achieve a greater benefit. But look at some of the changes that have been made to accommodate this one developer:
· He requested "conceptual agreement" and received it although this is not written into our subdivision process. Initial plat plan approval was waived.
· He was granted permission to build storm water de
