Sunday, November 9, 2014

Supervisor Tyksinski says..."There is no contract..."

...Unfortunately, Supervisor Tyksinski, no ambulance district has legally been created either!

Once again Councilman Messa took the lead on introducing a motion; this time at the July 9, 2014 Town Board Meeting. There was very little discussion that would alert the attendees at the meeting as to just what was being proposed and certainly no mention of a letter being sent to Oneida County 911 by Supervisor Tyksinski asking that Edwards Ambulance be the primary provider of services in the Town Of New Hartford.

Here is the portion of the July 9, 2014 town board meeting relating to Councilman Messa's motion:



According to the July 9, 2014 Town Board meeting minutes, the resolution that was adopted was:
Edwards Ambulance – Primary Provider of Town of New Hartford

Councilman Messa offered the following resolution for adoption and was seconded by Councilman Miscione:

(RESOLUTION NO. 155 OF 2014)


WHEREAS, it is desirous to acknowledge Edwards Ambulance as a long‐standing company in the Town of New Hartford who has offered its service 24/7, twenty‐four (24) hours a day, seven (7) days a week;

NOW, THEREFORE, BE IT RESOLVED that the New Hartford Town Board does hereby designate Edwards Ambulance as a primary provider for the Town of New Hartford, NY, based upon the contingency of their presence in the Seneca Turnpike area, 24 hours a day, 7 day a week, and that they be made the preferred provider of the Town of New Hartford.

Upon roll call, the Board members voted as follows:

Councilman Miscione ‐ Aye
Councilman Woodland ‐ Aye
Councilman Reynolds ‐ Aye
Councilman Messa ‐ Aye
Supervisor Tyksinski ‐ Aye

The Resolution was declared unanimously carried and duly ADOPTED.
Both the motion made by Councilman Messa and the resolution in the July 9th town board minutes name Edwards as the primary provider for the Town of New Hartford; however, the letter from Supervisor Tyksinski to Oneida County 911 seems to conflict with the resolution by saying referring to service in the area of Seneca Turnpike. Is the town board designating Edwards Ambulance as primary provider to the whole town or just the Seneca Turnpike area as Supervisor Tyksinski’s letter indicates?  Are they targeting Central Oneida County Ambulance in particular?

Two problems…a town cannot pass a resolution mandating anything for the two villages that are situated within the Town of New Hartford…that’s the law. Also, a town cannot just willy-nilly pass a resolution for a primary provider of ambulance services! Nothing against Edwards Ambulance, but laws are there for a reason.


Fast forward to the Public Presentation portion of the November 5, 2014 Town Board Meeting. A person identifying himself as Attorney Brad Pinsky of the Pinsky Law Group addressed the town board. Listen to the town board and town attorney playing their “semantics game” trying to justify their position even though Town Law is quite clear…the town has not taken the necessary steps prescribed by law! They claim that their resolution is only a "suggestion" to Oneida County 911 Dispatch. Does a "suggestion" require passing a town board resolution?

Here is Attorney Pinsky addressing the town board at the November 5, 2014 Town Board Meeting:



By searching online, I found a report written by the Center for Governmental Research (CGR), A Review of Options for Ambulance Services in the Town of North Hempstead. While this report does not specifically address the situation in the Town of New Hartford, it is a very thorough discussion of the laws governing ambulance service.

On page 9 of the report it says:
…a municipality may choose from two options in order to provide general ambulance services. These options include (1) contracting with one or more individuals, municipal corporations, associations or other organizations for general ambulance services or (2) establishing one or more ambulance districts to provide these services.
Each option has laws governing how the town board should accomplish their goal; the Town of New Hartford has not followed laws dictating how to accomplish either of the options.

Most importantly, the town board has not informed the general public that Edwards Ambulance is the primary provider in the Town of New Hartford and apparently Oneida County 911 has been using Edwards for all transport regardless of which ambulance company is closest to the medical call.

Whose interests is the town board serving…Edwards Ambulance or the residents?

Everyone o.k. with the game of Semantics that is being played by the New Hartford town board to skirt town law by quietly passing a resolution that could possibly affect the response time to your next 911 medical emergency?

Friday, November 7, 2014

Is this any way to run a town?

Two more motions were brought to the table at the November 5, 2014 town board meeting; this time to set a Public Hearing for December 10, 2014 to reduce the number of Planning Board members from seven (7) to five (5) and the Zoning Board members from seven (7) to five (5).

I recently blogged about this, Budgetary Savings Proposed by Councilman Messa…

The blog questioned Councilman Messa’s reason for making the motion at the October 22nd town board meeting. However, it became clear at the November 5th meeting that once again Councilman Messa was merely the messenger working on behalf of the interests of Supervisor Tyksinski.

At the November 5th town board meeting, Supervisor Tyksinski said he really wouldn’t mind if the Planning Board remained at seven (7) members. However, Supervisor Tyksinksi made it clear why he wants to reduce the Zoning Board of Appeals to no more than five (5) members and preferably three (3) members.

Why? Because, basically, he is tired of all the zoning changes allowed by the Town of New Hartford’s Zoning Board of Appeals undoing all the work put into the Comprehensive Plan and Zoning Law that cost about $65,000 to complete.

According to Supervisor Tyksinski, if you need a roof over your porch and the Town Code doesn't allow it because of the setback needed…that is not a hardship and should not be allowed. He was pretty adamant about that fact; he actually believes that denying the majority of variances granted and cutting down on the number of times the Zoning Board meets would be in keeping with the wishes of the people the town board represents.

His point of view is particularly interesting since Supervisor Tyksinski lives in the Village of New Hartford and does not come under the Town Code regarding Planning and Zoning. Both villages, New Hartford and New York Mills, have their own Planning and Zoning Boards who control those issues under their own Village Code. So you might say that Supervisor Tyksinski wants to rule over what is allowed under Town Code when he won’t be affected by his own decrees.

The fact is… Supervisor Tyksinski is mixing apples and oranges. There are actually two kinds of variances that might be allowed by the Zoning Board of Appeals…an area variance and a use variance.

A use variance cannot be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship; a very difficult requirement to overcome.

However, the use variance has nothing to do with adding a roof over your porch; it is “the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations."

While I am in agreement that in the past many use variances have been given out that probably shouldn’t have been, lately the Zoning Board of Appeals has become more cognizant of their duty to pay particular attention to the criteria the applicant must present in order for a use variance to be approved.

On the other hand, an area variance is the “authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.". It is the area variance that deals with fences, roofs, signage, additions, etc. that are not within the parameters of Town Codes. The area variance does not require that a hardship be proven and is often times the result of the changes in the Town Code over time.

The criteria to be used by the Zoning Board of Appeals for an area variance is:
“1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, than an area variance. 3. Whether the requested area variance is substantial. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. 5. Whether the alleged difficulty was self created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude {emphasis added} the granting of the area variance.”
According to the NYS Dept. of State:
“The legislative body of a municipality cannot take care of the details which come before the board of appeals, nor should it.”

”In essence, a variance is permission granted by the zoning board of appeals so that property may be used in a manner not allowed by the zoning. It is only the zoning board of appeals that has the power to provide for such exceptions from the zoning.”
Further, the NYS Dept. of State says:
“The Court of Appeals held that:

“We conclude Town Law § 267-b(3)(b) requires the Zoning Board to engage in a balancing test, weighing ‘the benefit to the applicant’ against ‘the detriment to the health, safety and welfare of the neighborhood or community’ if the area variance is granted, and that an applicant need not show ‘practical difficulties’ as that test was formerly applied.”
So I will ask again, should the town board interfere in the zoning and planning process by passing Local Laws each time someone submits a controversial application for a permitted use of land in order to unduly prevent the application from going forward... or should the zoning board, planning board, and other regulatory authorities be allowed to do the job they were tasked with by law?

Would the town board actions even survive in a court of law or might it be considered an "arbitrary and capricious" action?

And I will add another couple of questions…

Should the Town Supervisor have a say in who gets a variance from the Zoning Board of Appeals and/or who doesn’t get one?

Should an area variance for a roof over a porch, or a 6 foot fence instead of the allowed 4 foot fence, or a few extra feet setback relief for your addition, and/or a larger size sign than the codes allow on a commercial building have to be considered a hardship before it will be granted?

Since the law doesn’t address the need for a proven hardship for an area variance, should the Town Supervisor set the law as to when a variance can be granted and require that a hardship be proven?

Anyone have a problem with not being able to appear before the Zoning Board of Appeals unless you can prove a hardship yet to be defined by the Town Supervisor or is Supervisor Tyksinski correct in saying that this is the wishes of the people the town board is elected to serve? (Guess, he thinks because no one shows up at meetings, you are all happy!)

Finally, Supervisor Tyksinski, have you given any thought to the amount of revenue that the town might lose when the money received from the issuance of a building permit and other fees required under the Town Code in many instances relies on the granting of a variance, particularly in the older parts of town?

Below is the video of the town board discussion regarding the two local laws to change the composition of the Planning and Zoning Boards. But don’t go too far away, I will have another video for discussion tomorrow.

Thursday, November 6, 2014

Be careful what you ask for...

In today's Observer Dispatch, New Hartford pilot wants to fly, but town might clip his wings.

Come on people, really?

Mr. Baldwin's property is in an agricultural zone that allows many uses that some residents may ultimately feel disturbs the "peace and privacy" of the Snowden Hill/Tibbitts Road area. NIMBY, or Not In My Backyard is not a reason to stall or deny a request of a permitted use long enough to pass a local law banning the use.   By the way, YES, Mr. Baldwin flies over my home and it really doesn't bother me.

Attendance at the Public Hearing for the Comprehensive Plan last June was dismal. So let me ask...is everyone aware of the other permitted uses that were recently added to an agricultural zone?

For instance, recently added to agricultural zone as a permitted use was recreational uses.

At the Public Hearing for the Comprehensive Plan, Supervisor Tyksinski was publicly thanked for adding recreational use by a group of people who are proposing to build sports fields on the 87 or so acres of property between Snowden Hill Road and Tibbitts Road; the property that the school was going to buy a few years ago.

Don't be lulled into thinking that you will forever enjoy the "peace and privacy" of your neighborhood merely by rallying and speaking against Mr. Baldwin's permitted use of his property. Those who perceive Mr. Baldwin's use as a disturbance may actually find some of the other permitted uses a lot less desirable. Eighty or more acres is a lot of land and with the permitted uses available in an agricultural zone, the possibilities are many!

You can check out all the other permitted uses by visiting the town website.

An aircraft landing strip was a use that was not permitted anywhere in New Hartford until the new Comprehensive Plan was adopted last June. Yet Supervisor Tyksinski appears to be completely shocked that airport/aircraft landing strip became a permitted use with the updated zoning..."slipped the radar during the creation of the town's Comprehensive Plan" says Tyksinski in today's Observer Dispatch.

Someone had to add the use as part of the updated zoning regulations. How does something get added and no one supposedly knows anything about it? What other surprises are on the horizon? (pun intended)

It is starting to be pretty clear that Tyksinski has a reason for preventing Mr. Baldwin's application to go forward. Perhaps it is because it would not be consistent with the recreational/sports field use proposal or perhaps some other plan is in the works for that property.

There are several regulatory approvals required that may or may not allow the use Mr. Baldwin desires. Mr. Baldwin has the right to seek the necessary approvals without interference of the town board.

Should the town ban all aircraft landing strips because one person is seeking approval or should the town leave it to the people who are better equipped to evaluate the request?

Think long and hard about this people...should the town board interfere in the zoning and planning process by passing local laws each time someone submits a controversial application for a permitted use of land in order to unduly prevent the application from going forward... or should the zoning board, planning board, and other regulatory authorities be allowed to do the job they were tasked with by law?

Would the town board actions even survive in a court of law or might it be considered an "arbitrary and capricious" action?

Before you answer, be sure to read my blog tomorrow regarding possible changes to the zoning board of appeals and planning boards.

Here's the Public Presentation portion of the meeting with Mr. Baldwin starting the conversation by presenting the town board with a petition containing 96 signatures of residents in close proximity to Mr. Baldwin who are in favor of allowing Mr. Baldwin to use his land as a aircraft landing strip followed by three residents speaking against Mr. Baldwin.



The next video is later in the meeting when the town board discussed the possible introduction of a local law to eliminate airport/aircraft landing strips as a permitted use in agricultural zones.

The video clearly shows that the one person at the board table most interested in passing the local law striking aircraft landing strips from agricultural zones is Supervisor Tyksinski; however, it was Councilman Messa who made the motion to hold a public hearing on the local law to change the Town Code. Surprisingly, no other board member seconded the motion, not even Supervisor Tyksinski, so the motion died.

It does seem odd that Supervisor Tyksinski didn't second the motion in order to allow a vote on whether or not to hold a Public Hearing. We will have to wait to see what the next step by the town board is...another attempt to introduce a local law or will they allow Mr. Baldwin to present his site plan review before the Planning Board confident that the Planning Board will categorically deny Mr. Baldwin. Stay tuned...

Thursday, October 23, 2014

Budgetary Savings Proposed by Councilman Messa…

At tonight’s town board meeting, Councilman Messa proposed that a local law be enacted to reduce the number of members on the Planning Board from the present seven (7) to five (5). He also proposed to cut the Zoning Board from the present seven (7) members to three (3).

Councilman Miscione stated he would prefer that the Zoning Board of Appeals be cut to five (5) to allow for absences; however, Supervisor Tyksinski said he personally would prefer three (3) members.

Reducing zoning and planning boards requires a local law preceded by a public hearing. Town Attorney Cully was asked to draw up legislation to be presented for town board review at the next town board meeting when a date for the public hearing may be set.

According to an article in today’s Observer Dispatch, New Hartford discusses potential cuts to budget, Councilman Messa believes the cuts will save about $5,000.
Ward 1 Councilman James Messa said reducing the size of the Zoning Board and Planning Board to five members each which could result in a savings of about $5,000.

“I’m just trying to find ways to come up with additional savings,” Messa said after the meeting. “The Town Board has five members. I feel as though they can work with a reduced number as well.”
Not so fast Councilman Messa…did you check NYS Town Law?

According to the NYS Dept. of State in their Guide to Zoning and Planning Law in New York:
Zoning Board of Appeals; Decreasing membership.

A town board which has increased the number of members of the board of appeals to five may, by local law or ordinance, decrease the number of members of the board of appeals to three to take effect upon the next two expirations of terms. Any board of appeals which, upon the effective date of this section has seven members, may continue to act as a duly constituted zoning board of appeals until the town board, by local law or ordinance, reduces such membership to three or five. However, no incumbent shall be removed from office except upon the expiration of his or her term (emphasis added).

Planning Board; Decreasing membership

Decreasing membership. A town board which has seven members on the planning board may by local law or ordinance, decrease the membership to five, to take effect upon the next two expirations of terms. However, no incumbent shall be removed from office except upon the expiration of his or her term, except as hereinafter provided (emphasis added).

Below is a table showing each member of the Planning and Zoning Boards and the expiration of each of their respective terms.


The only person who could be eliminated by local law in time to affect the 2015 town budget would be Bill Morris, a member of the Planning Board whose terms expires on December 31, 2014.

Is Bill Morris, Chairman of the New Hartford Democratic Committee, being targeted for some reason?

Councilman Messa, at the moment it looks like your savings for 2015 equates a whopping $1,250. On a $14,054,634 Preliminary Budget, that is a mere pittance. Unless one more person from the Planning Board and four (4) people from the Zoning Board wish to terminate their appointment to the board early, there is no further savings until 2016.

Why the hurry? What’s the real story behind your proposal Councilman Messa?

Here is the portion of the meeting where Councilman Messa proposed the "savings".

Tuesday, October 14, 2014

2015 Town of New Hartford Tentative Budget...

was presented to the town board at the October 1, 2014 town board meeting.

The town board will next meet on October 22, 2014 where it is expected budget discussions will take place.

Here is a pdf copy of the 2015 Tentative (Supervisor's) Budget.

The videotape of the entire meeting is available on YouTube!

Sunday, September 28, 2014

Could we have some order in the Court?

At the July 9, 2014, the town board voted to terminate one of the court clerks; only one councilman, Richard Woodland, voted against the resolution.

The resolution that was entered in the July 9, 2014 town board minutes did not state a reason for the termination, but at the meeting Supervisor Tyksinski said it was because “the town was going in a different direction”.

Over the past couple of months the employee termination has been brought up by several people I have met; the topic even made it to the Utica Topix website.

According to Town Law Section 20, court clerks are appointments of the town justice(s):
“The clerk of the court of a town shall be employed and discharged from employment only upon the advice and consent of the town justice or justices.”
Talk around town is that neither town justice requested that the employee be terminated, so just what is going on?

Further research revealed that Town Law 20 was actually amended in 1990 so that the justices would have complete control over hiring and firing of their clerks.

In a NYS Attorney General Informal Opinion written by JAMES D. COLE, Assistant Attorney General in Charge of Opinions, on another question that also referenced Town Law 20, it is written:
"This language was added by chapter 252 of the Laws of 1990. The legislative bill jacket indicates that the sole purpose of the amendment was to require that town justices consent to the employment and discharge of court clerks. L 1990 ch 252, Bill Jacket, Memorandum on Senate 3566 and Assembly 5740 by Senator Volker and Assemblyman Graber.”
The reasoning for the change in Town Law 20 in 1990 according to the NYS Attorney General Opinion is:
“Each town justice is required to keep legible and suitable books, papers, records and dockets. Id. They are required to maintain financial records and promptly deposit all money received by the court. Id. For failure to comply with these responsibilities, town justices may be disciplined or even removed from office. Id. In order to discharge these responsibilities, local justices are heavily dependent upon the ability, industry and trustworthiness of the clerks of their courts. Id. Through the amendment to section 20 of the Town Law, town justices have been given the authority to consent to the employment and discharge of their court clerks on whom they rely heavily.”

But has it been tested in the courts?

Why yes it has…in RENO v. VAN VORIS, Supreme Court, Rensselaer County, November 6, 1996.


In that particular case, the East Greenbush, NY town board tried to play the "semantics game" by unanimously suspending one of their court clerks and argued that since she was suspended and not discharged, the law doesn’t apply. They further argued that one of the town justices was in favor of suspending the court clerk, but it was not the justice who was in direct supervision of the clerk.

The court disagree and "was of the opinion that neither contention withstands scrutiny". The court further explained their reasoning, but I won’t bore everyone with the facts; you can read the entire decision here.

In brief, the court said that:
”… the Town Board's action of unconditionally suspending petitioner without pay for an indefinite period is tantamount to discharge and thus falls within the purview of section 20 (1) (a).”

AND...

"The court concludes that under the strictures of the 1990 amendment, Town Board actions as to a court clerk may be taken only with the advice and consent of the Justice or Justices to whom the court clerk is responsible."
The court ordered that the petitioner be reinstated with pay and all applicable benefits retroactive to June 12, 1996" which is the date the East Greenbush, NY Town Board unanimously voted to immediately suspend her.

The case was appealed to the Supreme Court, Appellate Division who:
..."affirmed, agreeing with the lower Court that Reno's unconditional and indefinite suspension without pay constituted a "discharge" within the meaning of Section 20.1(a).”

"From a review of the memoranda in support of the bill, it is clear that the legislative purpose behind the amendment to Town Law § 20(1)(a) was to blend the actions of the Town Board with the wishes of the Town Justice to whom the Court Clerk reports and to provide Town Justices with control over the selection and removal of their Court Clerks".

"Therefore, based upon our interpretation of the legislative intent, we find that the action of the Town Board in suspending petitioner was appropriately annulled by Supreme Court as being in violation of Town Law § 20(1)(a)".
This time the court:
"ORDERED that the judgment is affirmed, with costs."
An online blog, New York Public Personnel Law, wrote a summary of the decision in which they stated that “the Reno decision indicates that this 1990 amendment to the Town Law [Chapter 252, Laws of 1990] is to be strictly applied.”

So why does all but one board member, Councilman Richard Woodland, think they have the right to terminate a court clerk?


That brings me to the town board minutes of January 2, 2014, the day the court clerk was first appointed due to the retirement of the former court clerk.

According to the town board minutes, the court clerk was hired “for a 6 month interim period”.

Interim...a period of time between events. That’s a strange way to put an appointment!

What is more interesting is the fact that Supervisor Tyksinski was the only board member who voted “nay” for the appointment in January 2014. Why?

Given the b/s that has been going on lately with no bid contracts, it makes one wonder if Supervisor Tyksinski doesn’t have a “bucket list” called “People I need to pay back for helping to get me elected” because it sure sounds like Supervisor Tyksinski might have had someone else in mind for the job.

Sorry to say Supervisor Tyskinski, according to the courts, Town Law 20 is very clear...the choice of court clerks is definitely in the hands of the “Justice or Justices to whom the court clerk is responsible”. Doesn’t sound like there is any “wiggle room” on this no matter how hard you try to mince words.

Supervisor Tyksinski, the town board needs “to go in a different direction” all right. Do the right thing and reinstate the court clerk with back pay and avoid another lawsuit against the town...we have enough of them already!

Thursday, September 25, 2014

New Hartford Town Board...

The New Hartford Town Board meeting didn’t last very long last night…the executive session lasted almost as long as the meeting.

Nothing special to report at the moment about this meeting, but I did want to comment on a recent Observer Dispatch article, Another hotel planned for New Hartford.

According to the article:
The Hampton Inn & Suites at 201 Woods Park Drive, which opened in June 2012, and Ramada Inn at 141 New Hartford St., do not have anything to fear from the proposed new lodging, Tyksinski said.
Of course, Ramada Inn has nothing to fear, Supervisor Tyksinski, because the same company that plans to build the hotel off 840 also apparently owns the Ramada Inn.

According to town assessment records, the Ramada Inn was purchased by New Hartford Hotel Assoc. LLC, 382 East Second St, Corning NY 14830 on March 22, 2010.

382 East Second St, Corning NY 14830 is the same address on the site plan review for the new hotel except they used the name "New Hartford Lodging Group, LLC" on the application.

It is also the same address of Visions Hotels, who according to the OD article is the new hotel’s parent company.

In fact, according to a recent legal notice in the Observer Dispatch, a new LLC is now connected to the Ramada Inn, 141 New Hartford Street address:
OD: 8/20, 8/27, 9/3, 9/10, 9/17, 9/24/2014 LEGAL NOTICE NEW HARTFORD ENTERTAINMENT ASSOCIATES, LLC Articles of Org. filed NY Sec. of State (SSNY) 8/13/2014. Office in Oneida Co. SSNY desig. agent of LLC upon whom process may be served. SSNY shall mail copy of process to 141 New Hartford St., New Hartford, NY 13413. Purpose: Any lawful purpose. OD: 9/3, 9/10, 9/17, 9/24, 10/1, 10/8/2014
The questions are…what, if anything, is being planned for the Ramada Inn? And how, if at all, will that affect Mr. Adler’s hotel?

Politics in New Hartford, I could write a book, a real “who knows what and when” story, but I will have to settle for a few blogs now and then because my day job is calling for some attention at the moment! LOL

The September 24, 2014 town board meeting is now available on my YouTube Channel!

Wednesday, September 17, 2014

The New Hartford Central School Board...

...held a meeting last evening; it lasted less than 22 minutes.

Two items on the agenda ended in discussion after the motion was made to adopt.
  1. Board member Flemma questioned one of the coach appointments, but the rest of the board passed all five (5) with one vote instead of individually as requested by Flemma.

  2. Board member Flemma also questioned a $6,000 stipend to be paid to Superintendent Robert Nole in lieu of an increase in base salary during the 2014-15 school year.

  3. On the agenda:

    C. Amendment to Contract

    WHEREAS, at the end of August the evaluation for the Superintendent of Schools was completed and the Board of Education deemed it appropriate to provide an increase in compensation from that provided in the 2013-14 school year;

    NOW, THEREFORE, BE IT RESOLVED, that the Board of Education hereby approves amendment of the Superintendent's contract providing, in lieu of an increase in base salary during the 2014-15 school year, payment of a one-time six thousand dollar ($6,000.00) stipend.
When the public portion of the meeting was adjourned, Superintendent Nole asked for a vote to go into executive session for what this blogger later found out was for pending litigation. I say later found out because as usual, Superintendent Nole's request was difficult to hear even though I was within a few feet of the board table.

Pending litigation is certainly an exception to the Open Meetings Law allowing a public body to discuss litigation strategy behind closed doors; however, here’s the problem with Superintendent Nole's request:

According to an article on the Committee for Open Government website:
Based on a recent decision of the Appellate Division, as well as earlier decisions, a motion cannot merely parrot the language of a statutory ground for conducting an executive session. In short, the decision confirms that a motion to conduct an executive session should include information sufficient to enable the public to believe that there is a valid basis for closing the doors.
In Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill:
"It is insufficient to merely regurgitate the statutory language; to wit, 'discussions regarding proposed, pending or current litigation'. This boilerplate recitation does not comply with the intent of the statute. To validly convene an executive session for discussion of proposed, pending or current litigation, the public body must identify with particularity the pending, proposed or current litigation to be discussed during the executive session" [Daily Gazette Co. , Inc. v. Town Board, Town of Cobleskill, 44 NYS 2d 44, 46 (1981), emphasis added by court].
More recently, in Zehner v Board of Education of Jordan-Elbridge Central School District, the Appellate Division affirmed that the lower court:
“… properly determined that respondent violated the Open Meetings Law on three occasions by merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so. Given the overriding purpose of the Open Meetings Law, section 105 is to be strictly construed, and the real purpose of an executive session will be carefully scrutinized ‘lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder’ (Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc2d 303, 304 [Sup Ct, Schoharie County 1981]; see e.g. Gordon v Village of Monticello, 87 NY2d 207 AD2d 55.” Zehner v Board of Education of Jordan-Elbridge Central School District, Appellate Division, 4th Dept, January 31, 2012.
In its decision, the court ordered:
Therefore, this Court directs the members of the respondent Board to participate in a training session concerning the obligations imposed by the Open Meetings Law, conducted by the staff of the Committee on Open Government. See, Public Officers Law § 1 07(1).

The Board must provide proof of completion of its training within ninety (90) days of the date of this Order.2

This Court also finds that the petitioner is entitled to attorney's fees based on the record in this case and the Board's previous violations of the Open Meetit1gs Law. Counsel for petitioner is directed to submit an affidavit detailing legal fees for this matter no later than fifteen (15) days from the date of this Order and this Court will determine the reasonable attorney's fees to be awarded.
The public at last night’s meeting was given no reason to believe that the school entered into executive session for a legitimate reason. Superintendent Nole merely stated it was for pending litigation and the board readily approved.

As public officers, it is the duty of each board member to be familiar with the Open Meetings Law and to make a conscience effort to conduct their meetings in accordance with the law. There is plenty of information available on the internet regarding the Open Meetings Law and certainly, if requested, Robert Freeman would more than likely be happy to conduct a workshop to help facilitate the board's understanding of the law.

Below is a video of the meeting:

Tuesday, September 9, 2014

Townplace Suites by Marriott coming to New Hartford?

At last night’s New Hartford Planning Board meeting, a representative of Zangrilli Engineering appeared before the board seeking Preliminary Site Plan Review approval for a proposed hotel on Middlesettlement Road in New Hartford on Tax Map #316.016-6-64.2; property currently owned by James and Harold Julian and under contract for purchase by New Hartford Lodging Group, LLC.

The proposed hotel will include 98 units on four (4) floors and is situated near the NYS Route 840 West ramp in close proximity to the senior housing complex currently under construction.

The Application for Site Plan Review was signed by A. Patel on behalf of New Hartford Lodging Group, LLC of 382 East Second Street, Corning, NY.

While no confirmation was provided at the meeting, or in the application that was made available at the meeting, as to who plans to build the hotel, according to information found on the internet, the address in Corning comes back to Visions Hotels, a hotel management company. According to their website, they are the same company that built the Hampton Inn on North Genesee Street in Utica.

The Julian property where the proposed project will be located is currently zoned C1 General Commercial and a hotel is a permitted use in that zone with a required site plan review. Preliminary approval was unanimously given by the Planning Board paving the way for further review before final approval of the project is given so that construction can begin. According to the application submitted to the Planning Board, the developer anticipates construction to begin within the next twelve (12) months.

Below is the video of that portion of the Planning Board Meeting for September 8, 2014:

Friday, August 22, 2014

Mia Culpa...NOT!

Did you happen to see Jim Messa’s message in the August 2014 Town Crier? Here is a pdf copy for anyone who missed it.

Jim’s message was written to inform residents why he decided to vote no to revive the curbside trash pickup this year even after using the trash program as part of his campaign last year.

In his message, Jim Messa gave some of the blame to Councilman Miscione because, according to Messa, Paul Miscione didn’t come to the July meeting with “a comprehensive implementation plan”.

Really Jim? Shouldn’t you have been the one to come up with a plan or at least take part in coming up with a plan…say, maybe before you took office in January, so there was plenty of time to come up with a “comprehensive implementation plan” by April particularly since you were the one who used the trash program as a talking point in your campaign last Fall?

He also said there was no cost associated with the purposed (I think he meant "proposed", not purposed) trash pick-up. Whose fault is that Mr. Messa? Last Fall, you were part of the decision to place $20,000 in the 2014 town budget and tax residents to cover the cost. Councilman Backman would have been against putting the $20,000 in the budget…but if you remember, he deferred to you during the budget process and you said that YOU wanted to leave it in. As a result, town residents were taxed for a service they will not be receiving!

Timing was also an issue according to Messa, stating that the highway crew is busy doing other projects. Again, Jim, you could have solved the timing issue by bringing it to the town board earlier in the year.

FYI Jim...Since Rick Sherman has been Highway Superintendent, I’ve yet to see him not be able to do what was asked of him even if it put his department in a crunch. If the town board voted to reinstate the trash program, I would bet that Rick would have accommodated the request for the additional work somehow.

The only thing on the same level as a politician who doesn’t keep his campaign promises is a politician who blames everyone else instead of taking the “bull by the horns” and admitting that maybe he campaigned without ever bothering to educate himself on the issues or that maybe he dropped the ball instead of taking the initiative to be proactive.

This blogger had a lot of hope for you, Jim, but so far you have not been very impressive. Voting against one of your campaign pledges was a big blunder, Jim! No one was running against you…you were a sure thing, you should have never made ANY promises.

By the way, had you regularly attended town board meetings you would have known that there was no way that Tyksinski was going to allow the trash program to be reinstated as long as he was in charge. Reynolds also spoke against the program several times. You were the deciding vote, Jim.

Messa went on in his message to state that he “will continue to look into reinstating the trash pick-up to see if there is a better time of year that would be more effective than what was purposed” (again,I think he meant “proposed”, not purposed.  Damn spellchecker!).

As you may (or may not) know, Jim, budget time for 2015 is right around the corner. Since, according to your message, you are only "looking for a better time of year", will you be teaming up with Councilman Woodland and Councilman Miscione to put money for curbside trash in the next year’s budget and then start working on “a comprehensive implementation plan” as soon as the budget is adopted in November 2014?

The most accurate statement in your “message” was that you clearly have a “learning curve ahead of you”. Don’t take too long to get “on board” because before you know it, another election year will be here and this time you will have a record that can and more than likely will be used against you no matter what elective office is the target of your future aspirations.

Just for the record...since invariably someone will question and attack my reasons for writing this, I have already stated in an earlier blog that I am against reinstating the curbside trash program. It is expensive and our highway workers have more important things to attend to like working to alleviate stormwater issues.  I write this because I have a problem with people who speak out of both sides of their mouth!

Monday, August 18, 2014

“Bidding”…Adieu?

Over the past several weeks, this blogger has received several inquiries as to the reason why all the excavating work throughout the town is being done by one contractor in particular. People want to know why there were no advertised bidding requirements for this work.

Let’s start by looking at the town’s Procurement Policy, which by the way is almost exactly what the NYS Comptroller says is required by General Municipal Law 104-B. I say “almost exactly” because there is one difference that will be mentioned later in this blog.

The town’s procurement policy states:
COMPETITIVE BIDDING

The thresholds under General Municipal Law, 103, governing contracts of Political Subdivisions requiring the competitive bidding process are as follows:

Contracts for Public Works $35,000 or more.

Purchase Contracts $20,000 or more.

The only exceptions to these guidelines are items/services that are obtained under New York State Contract, Oneida County Contract, from New York State Industries for the Blind or New York State Correctional Institutes are less than $20,000 in total for purchase contracts, less than $35,000 in total for Public Works Contracts, are professional services, or are emergency purchases.
The work in question is definitely not being done under New York State Contract, Oneida County Contract, from New York State Industries for the Blind or New York State Correctional Institutes. Nor could excavating work be considered professional services. Excavating would definitely be “contracts for public works”. In fact, the town’s policy makes it quite clear that we are talking about a Public Works Contract with work over $35,000 requiring competitive bidding:
“The term Public Works Contract would apply to those projects/commodities involving labor or both labor and material. An example of this would be construction, paving repair contracts, equipment use, anything that would require repetitive use throughout the year or major construction.”
Could it be that in this case the dollar amount expended was below the threshold for Contracts for Public Works in a given year?

To find out, a FOIL request was sent to the town clerk on July 16, 2014 asking for all invoices received to date from the contractor in question.

We received invoices totaling over $158,000 for the months of September, October, and November 2013. To be sure, paying out over $158,000 in a three month period is clearly over the $35,000 threshold.

Furthermore, our town’s own procurement policy states (and the state comptroller agrees):
In determining the necessity for competitive bidding, the aggregate (accumulative) cost of an item or commodity being purchased in a fiscal year (New Hartford – January 1st through December 31st) must be considered. It is prohibited to artificially divide purchases to satisfy threshold amounts.
Interesting, because according to the spiel given by the town supervisor at a recent town board meeting, you can bet that this contractor will be billing the town for considerably more than $35,000 to cover the additional work he has been hired to do in 2014 to build the retention pond in Woodberry.

Could it be that the Town Supervisor is hiring this contractor in an “emergency” situation? The town’s procurement policy also addresses those situations. According to town policy, an emergency is deemed to be:
“Only those situations that require immediate action, apart from normal procedures, would classify as "emergency".

This would include situations that would be threatening to life and property due to fire, explosion, flood, electrical failure or extreme weather and immediate action is required. Also, when an emergency vehicle is involved and repairs are required immediately, to enable the vehicle to be put back in service.”

The town’s procurement policy continues….

“Unless an emergency meeting is required, at the next Town Board meeting, the Supervisor, Director of Finance and responsible Department Head will apprise the Board of the situation, what was done and what needs to be done. The situation can only be declared "emergency" by Town Board resolution. This will allow necessary repairs to be made.

A permanent file for each emergency will be maintained of all memos, correspondence, police reports (if required), resolutions and vouchers in the Finance Department.

Any vouchers/expenses involved with the emergency will have to have authorization (signature) of the Town Supervisor prior to being processed. In all cases, reimbursement is sought from insurance company. Any legal consultation required will be obtained by and go through the Town Director of Finance or Town Supervisor's office.”
Hmm…don’t recall any emergency situations being declared by the town board in 2013 or 2014 so guess the work probably doesn’t qualify as an emergency.

Finally, let’s address the one difference between the town’s policy and the opinion of the State Comptroller.

NYS Highway Law 143 says:
§ 143. Town superintendents may hire machinery. The town superintendent may rent or hire machinery or equipment at a rate to be approved by the town board. The expense thereof shall be paid out of moneys provided for the repair and improvement of highways.
However, one must also look at General Municipal Law 104 PUBLIC CONTRACTS 104-B, Procurement policies and procedures, which states:
1. Goods and services which are not required by law to be procured by political subdivisions or any districts therein pursuant to competitive bidding must be procured in a manner so as to assure the prudent and economical use of public moneys in the best interests of the taxpayers of the political subdivision or district, to facilitate the acquisition of goods and services of maximum quality at the lowest possible cost under the circumstances, and to guard against favoritism, improvidence, extravagance, fraud and corruption. To further these objectives, the governing board of every political subdivision and any district therein, by resolution, shall adopt internal policies and procedures governing all procurements of goods and services which are not required to be made pursuant to the competitive bidding (emphasis added) requirements of section one hundred three of this article or of any other general, special or local law.
The State Comptroller in his Opinion 92-43 interprets General Municipal Law 104-B to require that along with the town board setting the hourly rate, the town’s procurement policy must set forth guidelines on when and how the highway superintendent can hire machinery under Highway Law 143.

The Comptroller states in part:
“Since the policies and procedures required by section 104-b must govern "all" procurements of goods and services for which competitive bidding is not required, it is clear that procurements made by the town superintendent of highways are required to be covered under the town board's policies and procedures. We further note that, as an officer involved in the procurement process, the board must solicit comments concerning the policies and procedures from the superintendent in accordance with General Municipal Law, §104-b(3).”
New Hartford’s Procurement Policy, unlike several other town’s Procurement Policies, is silent on Highway Law 143 and we would venture to guess that the highway superintendent was never consulted on the Procurement Policy when it was updated last year.

Furthermore, when the excavating work was started in September 2013, the town board had not even set an hourly rate as required by Highway Law 143 so one can safely say that Highway Law 143 can be ruled out as a legitimate reason for the work that was done last Fall.

What more is there to say? It would appear that, for now, the reason for the work being done by one contractor absent any competitive bidding will have to remain an unsolved mystery for taxpayers in the Town of New Hartford. Guess anyone wanting to know the “real” reason(s) why there was no competitive bidding for work totaling thousands of dollars will have to speak directly to the Town Supervisor, who along with the Finance Director, updated the town’s procurement policy in July 2013.

Friday, August 15, 2014

Sangertown Square...

On Monday, August 11, 2014, representatives of Sangertown Square presented their proposed site plan modification for the re-development of the Circuit City space to the New Hartford Planning Board for review.

The expansion is proposed to include:
  • Restaurants with outdoor seating;
  • Additional retail store space for multiple new tenants;
  • A new corridor from the entrance to main shipping corridor;
  • A +13,642 sq. ft. gross building expansion (+ 689 sq. ft of gross leasable area);
  • Internal ring road adjustment and reconfigured parking;
  • and new landscaping.


A pdf copy of the Site Plan Narrative.

The video of the portion of the meeting devoted to the Sangertown Square proposed re-development is below: