Category Archives: FOIL

Lesson #1

As PDDG’s point people, Corrin and I try to keep our readers informed about the status of Newman Development’s PDD application and what we’re doing to try to defeat this proposal. Because we’re having more than the usual amount of difficulty in figuring out what’s going on at the moment, this report may be a bit sketchy.

Back in September, with an election looming and under pressure by the pro-Lowe’s incumbents to produce some good news, the Town Planning Board declared Newman’s Draft Environmental Impact Statement (DEIS) complete. This allowed the former Supervisor to claim that a huge hurdle had been cleared and that State Environmental Quality Review Act (SEQRA) review of Newman’s proposal was done.

Turns out the Supervisor was wrong, on both counts. Not only is a completeness decision not a significant milestone in reviewing a proposal, the decision itself was premature. Missing from the DEIS Newman submitted were a number of studies required by the “scope” (guidelines) the Planning Board had provided to Newman.

Lesson #1: Newman’s unwillingness to complete these studies, combined with the Planning Board’s reluctance to recognize just how committed Newman is to avoiding accountability and disclosure about the impacts of its proposal, are the principle sources of delay in this long saga.

Without directly acknowledging that its completeness decision was premature, the Town Planning Board later required Newman to complete a number of additional studies (required by the scope) and produce additional information to support its proposal. Newman submitted these supplementary materials in early February.

Since then, developments have been hard to follow.

After reviewing Newman’s supplementary materials, the Town apparently decided they were still incomplete and otherwise inadequate (see Lesson #1). Rather than communicating these concerns in writing – as appears to be required by SEQRA, and as would seem to be prudent practice in a process this contentious – Town representatives apparently met with representatives of Newman to discuss these issues on Feb. 15.

Our efforts to obtain any records of this meeting, which should be public under the Freedom of Information Law (FOIL), have so far been unsuccessful. However, last week, we were able to get copies of new submissions of additional information by Newman that apparently resulted from that meeting, essentially supplementary supplementary information.

Among the highlights of the new materials is a report emphasizing the importance of direct road access from 20A to the proposed Lowe’s. (The report, a 6.2 Mb. pdf file, is available here.) You may recall that this has become a significant point of contention because the planning and zoning for the Gateway clearly prohibits such a road.

Remarkable about this report is the way in which Newman professes great concern about traffic on 20A in front of their proposed store, a concern not apparent in their “no limits to growth” approach to traffic elsewhere on 20A and Lima Rd. The “solution” to these traffic problems, it turns out, is direct access to 20A. (We have also posted their latest supplementary reports on Lima Road and 20A capacity.)

To my admittedly jaundiced eye, the real reason for this concern is found hidden right in the middle of the report, when they write that the 20A access they so badly want “has also been designed to connect to adjacent parcels that may be developed in the future.”

Isn’t that a happy coincidence? Newman is using its newfound concern about traffic to justify its effort to open up more 20A road frontage to retail sprawl. Make no mistake about it; a proposal for more retail development to the east would follow Lowe’s the way night follows day and cars follow retail.

Even after its most recent submissions, there appears to be significant omissions from the record created by Newman (see Lesson #1, again). Most notably, the scope requires a precedent analysis, examining the potential effects of a Lowe’s on subsequent retail development and traffic in the Gateway. No such study has been produced. At some point, it will have to be done.

We’re waiting.

Advertisements

Opportunity knocks and the town refuses to answer

After the Town Planning Board’s August 27 meeting, I had the chance to ask Newman Development’s attorney and “team” leader Ken Kamlet whether he would send me copies of the missing documents we have been trying so hard to obtain. His answer surprised me.

You may recall that nearly a year ago, I submitted a Freedom of Information Law (FOIL) request for several dozen documents related to Newman’s Big Box proposal. Among those were approximately a dozen items of correspondence between Newman and its partners and the Town.

Though we know that the documents existed – they are referred to in the billing records of Underberg & Kessler, the Town’s attorneys – my request, subsequent appeals, and even a Article 78 lawsuit against the Town failed to produce their disclosure.

The problem, the Town said, is that it destroyed the documents, which it characterized as routine and trivial communications that it was allowed to destroy. Since it can’t produce what no longer exists, and since the Town’s claim that it was allowed to destroy the documents can’t be tested without knowing the contents of the documents, the matter reached an impasse. Our effort to break this impasse by asking the Court to order a more thorough search of Town records was rejected by Judge Anne Marie Taddeo.

That would seem to leave only one route to get the documents, which brings us back to August 27. As a private, non-governmental party, Newman is not subject to FOIL. It can’t be required to produce its communications with public officials; only public officials can be so required. However, it may very well still have those communications and it certainly may provide them voluntarily.

So I asked, first in writing and then in person, whether Newman would share its copies of the documents. Doing so would be an enormous act of goodwill on Newman’s part. It would answer questions about the Town’s relationship with Newman (remember that a sworn statement has been made that the Town acknowledged that Newman wrote the PDD law.) It would bring an end to costly and contentious litigation with the Town.

I received no response to my written request, so I didn’t expect much when I posed the question directly to Mr. Kamlet. That’s why I was surprised when he said that he would provide the documents to the Town if they requested them.

Hearing the sound of opportunity knocking, I immediately contacted the Town to encourage them to follow up on Newman’s offer. Weeks have passed. The Town Board has met. I have been told that they discussed the issue at their meeting, with Supervisor Kennison indicating that the matter is being reviewed by counsel. I have received no response from the Town.

At this point in the process, I won’t bother to feign outrage or indignation at the Town’s apparent indifference to this opportunity. I would have to be naïve to believe that the Town has any real interest in the public knowing more about its relationship to Newman.

Three things could happen if Newman did provide the documents; two of them are bad for the Town and the third is by now almost completely implausible. First, the documents could reveal close ties between Newman and the Town in writing the PDD law and reviewing Newman’s proposal.

Short of that, they could contain the type of information that, without presenting evidence of collusion, could prove that the Town’s attorneys destroyed significant documents in violation of state law. Or, perhaps we’ve got this all wrong and the documents contain the type of truly trivial information that would allow them to be destroyed, but if so, why not ask Newman to release them?

So there it is. Newman has the documents. The Town could ask for them. It hasn’t. Go figure.

Perhaps a future Town administration can follow up on Newman’s offer. Despite the Town’s full court press to expedite approval of Newman’s application (most recently by trying to gain acceptance of an obviously incomplete DEIS), it appears likely that Newman’s application will still be pending when the new board takes office on January 1.

Renewing our request to be on the agenda

Recently, Please Don’t Destroy Geneseo sent a letter to Planning Board Chairman Dwight Folts asking to be allowed time to speak at the September 10 meeting to rebut statements made at the previous meeting about the propriety of PDDG’s access to the DEIS in the Newman matter. In response we got the following statement from Chairman Folts:

“There is no provision under SEQRA, the Town Zoning Code or the Open Meetings Law that requires the Planning Board to provide PDDG time to speak on the Newman application at the 9/10 agenda, since it is not a scheduled public hearing. You are most certainly aware that you will have time to speak and submit written comments during the public hearing(s) to be conducted after the Planning Board deems the DEIS complete.”

In response we have sent the chairman the rep0nse below renewing our request to be heard:

Dear Dwight,

Thank you for contacting us regarding our request to appear on the agenda at Monday’s Town Planning Board meeting.

We would like to clarify that PDDG”s request to speak at the meeting was not to address the issue of the completeness of the DEIS, much less the findings of the DEIS that we understand will eventually be taken up at a future public hearing. Our request was to address the board on the applicability of the Freedom of Information Law to the DEIS process and respond to the statements made by Newman counsel Tom Greiner, the advice given by the board’s counsel, Joe Picciotti, and your ruling on the status of documents produced by the applicant in this matter, all of which we strongly dispute.

Since the statements by Mr. Greiner, Mr.Picciotti and yourself all left the implication that PDDG had done something improper and were made, not only to the board, but also to a room full of citizens, and were subsequently reported in the press, we feel it is only fair that we be given an opportunity to clear the record.

As stated in the opinions of the NYS Committee on Open Government, which we sent you last week, the DEIS itself and all correspondence concerning the DEIS sent by the applicant or its agents either directly to the board or to the board’s consultants are public records and must be disclosed under the Freedom of Information Law.

Our review of the law indicates that the position taken by your counsel that correspondence with the Board regarding the completeness decision is protected from disclosure by some sort of “deliberative process” exemption is directly at odds with these opinions and the case law regarding FOIL. In our letter we asked that your attorney provide any legal rule or precedent that would substantiate his opinion. The fact that he has not produced any and that you subsequently did respond to our FOIL by providing a previously unknown memo from APD about the DEIS would indicate that there is no such precedent.

This needs to be clearly stated at your meeting to undo the damaging implication left from the last meeting that there was anything improper in PDDG getting access to these records.

We further understand that questions have also been raised about PDDG’s right to send comments to members of the planning board and the board’s consultants about our concerns with the completeness of the DEIS and other issues. Once again, we believe that these communications are entirely proper and fully protected by the law. While there are good legal and ethical reasons to regulate contacts between parties that have a proposal under review before a Board and the Board itself, the logic of those regulations does not extend to communications with the public. As citizens of the Town of Geneseo, the Planning Board is our representative in this matter. Our right to communicate with the Board on matters of public concern is protected.

In our letter we also requested that the question of an ethical code for the planning board be taken up as soon as possible. We believe that the appearance of collusion by way of private communications between the applicant or its agents and individual members of the board is dangerous to the integrity and public confidence in the work of your board. The failure to properly interpret and follow the requirements of the Freedom of Information Law in this matter to date has allowed that appearance to be created.

We note that the recently disclosed APD memo had not been shared with other board members until after our FOIL request brought it to light. It further appears that there is a pattern in which new material is given to the board at the last possible moment before meetings, or even at the meetings, with no opportunity for the board to properly review the material. This practice raises serious concerns about the fairness of the process and the ability of our representatives to take the legally required “hard look” at issues before deciding them. We would also like to address these issues in our comments to the board.

We agree that there is no law that requires you to allow us on the agenda, on the other hand we believe the converse of your statement is also true: that there is no provision under SEQRA, the Town Zoning Code or the Open Meetings Law that prohibits the Planning Board from providing members of the public time to speak. Newman has certainly had plenty of time to address the Board, and has used it to cast aspersions on our organization. Simple fairness would indicate that we be given the opportunity to rebut their statements.

We hereby renew our request to be allowed time to address these issues at the meeting Monday.

Sincerely

Bill Lofquist
Corrin Strong

Please Don’t Destroy Geneseo

Appealing the latest FOIL rejection

For my column this week, I am providing the full text of the latest FOIL appeal that I filed this week with the Town of Geneseo. I think the letter speaks for itself.
Mr. Weston Kennison
Records Access Appeals Officer
Town of Geneseo

Dear Mr. Kennison:

I am writing to appeal the Town’s recent denial of access to public records related to Newman Development Group’s Gateway Town Center proposal.

On July 11, 2007, I filed a Freedom of Information Law (FOIL) request for all correspondence between Town Attorney James Coniglio and Town elected officials and representatives of Newman Development Group and its development partners. The impetus for this request was a statement by Mr. Coniglio in the Livingston County News (June 28, 2007) that the Town had received and rejected criticisms of the Planned Development District (PDD) law from Newman.

In response to this request, on August 10, 2007, the Town stated that no documents other than those provided to me by an earlier FOIL request could be found. However, my previous requests produced only a single item of correspondence (a March 22, 2005 letter from James Coniglio to Tom Ferrera of Ferrera/Jerum) between representatives of the Town and representatives of Newman prior to the passage of the PDD law in July 2005. That letter had nothing to do with the PDD law.

The absence of documents transmitted between the Town and Newman related to the PDD law creates a conundrum, particularly in the context of Mr. Coniglio’s claim that communications about the PDD law were transmitted between the Town and Newman. For Newman even to be aware of the PDD law would seem to require that the draft law – which was not yet in the public domain – was somehow transmitted to them, yet no record of such a transmission exists. For Newman to have offered its response to the law would also require some transmission. Even a phone conversation would produce notes or some other written record. Yet, no such records appear to exist.

Also, reviewing the billing records of Underberg & Kessler indicates that development of PDD regulations began in March 2005. Yet, these records indicate that there was no phone, written, or personal contact with Ken Kamlet or other employees of Newman prior to April 21, 2005. The “correspondence to and from K. Kamlet” indicated by the billing records to have occurred on that date identified in a previous FOIL request as missing, probably destroyed, and not required to have been retained because of its routine or trivial nature. No other contact with Mr. Kamlet is recorded until his appearance at the Town’s public hearing on the PDD law on June 9, 2005, at which time he indicated his familiarity with and support of the PDD law.

It is simply inconceivable to me that there is not a single item of correspondence between Newman and the Town related to the drafting or content of the PDD law. Further, it is clear under state law that any such correspondence, pertaining as it does to a matter of public policy, must be retained permanently. The result is a conclusion that the Town is either withholding records in violation of FOIL or has destroyed significant public records in violation of the Arts and Cultural Affairs Law (Article 57A, the Local Government Records Law).

Under these circumstances, I request that the Town ask Underberg & Kessler to undertake an additional search of its records for any documents relevant to my July 11 request. If no relevant documents are found, please provide certification of the completion of a diligent search and the details of that search. Further, please provide any clarification of the circumstances under which the PDD law was made available to Newman, the form in which Mr. Kamlet’s or Newman’s comments were received, and the disposition of those comments.

Also, my July 11 request included a request for the “contents of the ‘client files’ developed by Underberg & Kessler for the Town of Geneseo related to the Planned Development District law or Newman Development Group.” Your response denies my request for failure to “reasonably describe the nature of the records sought.” My use of the term “client files” was taken from Underberg & Kessler attorney Ron Hull’s claim, in the context of PDDG’s previous Article 78 litigation against the Town, that he had searched UK’s “client files” for records requested in a previous FOIL request. I do not know anything more about the nature or content of these client files, but I believe under the circumstances that the description I have provided should be clear to Underberg & Kessler.

Please provide your response to this appeal with ten business days.

Sincerely,

Bill Lofquist

The Silence is Deafening

A few weeks have passed since the release of John Zmich’s affidavit stating Town officials thanked the Newman Development Group for writing the Planned Development District (PDD) law that allowed their Big Box proposal to be considered. Despite initial protests from Town Attorney Jim Coniglio, no admissions, no denials, no official statements, no explanations, and, most significantly, no counter-affidavits have followed.

Nor, apparently, has the Town asked Newman to provide the missing documents, copies of which would go a long way toward clarifying the Town’s relation to Newman and Newman’s relationship to the PDD law. Nor has Newman responded to such a request that I have published and sent by mail.

Nor has the Town explained why documents required under state law to be retained were not retained or what steps it has taken to ensure such problems do not occur in the future.

Nor has the Town responded to PDDG’s demands that the PDD law be rescinded and Newman’s application be rejected.

All we get from the Town is Supervisor Kennison’s sneering statement wishing Corrin Strong and I would find another hobby rather than scrutinizing the Town’s actions.

All we get from Newman is their Draft Environmental Impact Statement (DEIS), initiating the next step in the Town Planning Board’s review of their proposal.

As though nothing has happened, as though this project isn’t so mired in controversy and secrecy that it shouldn’t be allowed to continue, Newman and the Town soldier on.

In the court of public opinion, it is perfectly appropriate to draw conclusions from things left unsaid and actions not taken. What conclusions should we draw from the Town’s and Newman’s unwillingness to defend or explain themselves?

Questioning the answers

John Zmich has made a sworn statement that he was present at a meeting with representatives of Newman Development Group and representatives of the Town (including Town Attorney Jim Coniglio, Town Supervisor Wes Kennison, and Town Code Enforcement Officer Ron Maxwell) at which Coniglio thanked Newman attorney Ken Kamlet for writing the Planned Development District (PDD) law.

That’s pretty damning stuff. No less an authority than Wes Kennison, responding in 2005 to the rumor of Newman’s authorship of the PDD, rejected the rumor as “stupid,” while conceding that allowing such involvement by Newman would amount to “extraordinary malfeasance” by the Town Board.

I believe John’s statement. As a person of integrity making a sworn statement, under penalty of perjury, he is certainly entitled to our belief. I don’t know why Jim said what he said or what, exactly, he meant. I don’t know the extent of Newman’s relationship to the Town or the precise steps through which Geneseo’s PDD law came to be drafted.

I also agree with Wes that allowing a private interest such as Newman such a significant role in the public process of making and enacting law would constitute “extraordinary malfeasance.” This entire process, beginning more than two years ago, has involved an intolerable level of secrecy, an ongoing effort by the Town to prevent direct public questioning of its actions, and nothing short of a “scorched earth” policy toward any and all impediments to Newman’s plans.

I also know that the Town’s response to Zmich’s affidavit raised more questions than it answered. According to the Livingston County News of June 28, Coniglio characterized the claim at the center of Zmich’s affidavit as “ludicrous,” while claiming that the PDD law was derived from laws on the books in Perinton and Onondaga and that “Newman actually offered criticisms of the law which we rejected.”

I’ve read the PDD laws in place in Onondaga and Perinton. Onondaga’s law bears no resemblance to Geneseo’s, making further consideration of it unnecessary. Perinton’s law, on the other hand, has some striking similarities to Geneseo’s, making it either a model for ours or a descendant of a common parent.

However, there are two striking differences: Perinton’s law is restricted to residential development and Perinton’s law requires completion and submission by the developer of a generic environmental impact statement (GEIS) with its application.

Geneseo’s law, on the other hand, was designed and enacted to permit large scale commercial developments where they are otherwise not permitted and it has no GEIS requirement. The latter is significant in that a GEIS provides for early identification of the impacts of a project, before a developer and Town officials become strongly invested in a project and at a crucial point in informing the public.

So, why is a law so clearly modeled on Perinton’s different from Perinton’s in these two important respects (both of which, probably not coincidentally, favor Newman’s interests)?

Related to this, exactly what criticisms of the PDD law were offered by Newman, when were they offered, and what form – email, letter, fax, phone – did they take? The crux of PDDG’s lawsuit against the Town was to obtain correspondence between Newman and the Town, much of it written in the period prior to enactment of the PDD law. Through his comments, Coniglio now concedes that such communication occurred.

We know these concerns were not expressed publicly. At the public hearing on the PDD law, now more than two years past, Newman offered no criticism of the PDD law. Its only public comment was to support the law. Apparently its criticisms were communicated privately and before passage of the law.

The public has an absolute right to see these items of correspondence. The Town has claimed they were destroyed. Yet, the Town has a clear obligation to retain such correspondence. Records related to the substance of laws and policies are required to be kept permanently under Schedule MU-1 Section 10.10 (c) of the regulations adopted under the NYS Arts and Cultural Affairs Law. (See PDDG’s Memorandum of Law) Where are they? If they were destroyed, why were they destroyed?

The Town’s answers to the questions raised about the PDD law serve only to raise more questions and more doubts about that law and about the Town’s relationship to Newman.

To begin to restore public confidence:

Is anyone willing to match John Zmich’s sworn statement with a sworn statement that Newman didn’t write or participate in writing the PDD law?

Is the Town willing to certify that it took every step to ensure that it searched for the missing documents and was unable to find them? PDDG has already provided the Town with the scope of such a search.

Is the Town willing to provide the documents in which Newman presented its criticisms of the PDD law?

If the Town can’t find these documents, is Newman willing to release their copies of all correspondence with the Town related to the PDD law or to their proposal?

An Open Letter to Newman Development Group

Now that PDDG’s efforts to obtain the ten missing documents, or further evidence of the Town’s efforts to locate them, have been dismissed by Justice Taddeo, the logical next step is to go directly to Newman. After all, they are the one party involved in this affair that is not subject to the Freedom of Information Law but that sent or received most of the missing documents.

Newman also has an interest in trying to clear up any doubt that surrounds their project and in demonstrating their commitment to Geneseo. I have drafted the open letter below in the hope that representatives of Newman, particularly legal counsel and Geneseo project manager Ken Kamlet, will read and respond to it.

Should anyone else wish to send this letter to Newman, a formatted, unsigned copy is available as a pdf here. Just print, sign, and send.

A brief reminder of the purpose and significance of this request: the documents we are seeking were produced and/or reviewed by representatives of the people of Geneseo and paid for by the taxpayers of Geneseo. They are documents that should have been retained by the Town but which were apparently destroyed. They concern a matter of vital public interest and importance and a matter about which there is considerable controversy.

Mr. Kenneth Kamlet
Director of Legal Affairs
Newman Development Group
3101 Shippers Road
Vestal, NY 13850

Dear Mr. Kamlet:

As you know, representatives of Please Don’t Destroy Geneseo (PDDG) have been pursuing a Freedom of Information Law (FOIL) request with the Town of Geneseo to obtain ten items of correspondence (listed below) between the Town and Newman Development Group and its development partners.

The Town of Geneseo has certified that its copies of these documents are missing and probably destroyed. In dismissing PDDG’s Article 78 lawsuit against the Town to obtain these documents, Justice Taddeo concurred that the Town has demonstrated its copies of these records no longer exist.

I am writing to request that Newman and its partners check their records to see whether they retain copies of these documents. The documents in question (listed below) cover the entirety of Newman’s involvement with the Gateway Town Center project, from prior to the passage of the Planned Development District (PDD) law, to the period when your application was accepted by the Town Board and forwarded to the Town Planning Board, to the present period of the Town Planning Board’s SEQR review of your application.

As a result, these documents may provide critical information about the disputed circumstances at each of these decision points. Providing these documents to the community of Geneseo would represent an important act of good faith in a community in which your proposal has generated considerable controversy.

Should you be able to produce copies of any of these documents, please send them to the Town of Geneseo, 4630 Millennium Drive, Geneseo, N.Y. 14454 and to PDDG, PO Box 236, Geneseo, NY 14454.

Thank you for your attention to this request.

Sincerely,

Bill Lofquist

The Ten Missing Documents

These are the ten missing documents, as described in the billing records of Town attorneys Underberg & Kessler.

1. March 24, 2005: Email correspondence from James Coniglio to T. Ferrera and D. Jerum regarding formal submittal;

2. March 26, 2005: Email from James Coniglio to D. Jerum and T. Ferrara regarding submittal issues;

3. April 21, 2005: Correspondence from Ken Kamlet to James Coniglio;

4. April 21, 2005: Correspondence from James Coniglio to Ken Kamlet;

5. October 21, 2005: Correspondence from Ken Kamlet to James Coniglio;

6. October 25, 2005: Correspondence from Ken Kamlet to James Coniglio;

7. December 2, 2005: Correspondence of James Coniglio with Neal Madden;

8. December 13, 2005: Correspondence of Ken Kamlet to James Coniglio;

9. May 17, 2006: Correspondence of Ken Kamlet to James Coniglio;

10. July 19, 2006: Letter from Tom Lucey of APD Engineering.