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.

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.