By: Janine Stankus, Staff Reporter 12/12/2008
Bennett College has cropped up again in court. Last month, owners of the premises sued the Bennett Commons board over property rights. This month, two residents filed an Article 78 proceeding against the village planning board for violation of the Open Meeting Law in proceedings addressing proposed development of the site.
On Nov. 12, following a review of the developers’ application, the Village of Millbrook Planning Board issued a negative declaration in accordance with provisions of the State Environmental Quality Review Act (SEQRA) as well as special permit, preliminary site plan, and “sketch” plat approvals.
On Nov. 20, resident Tim Tice, principal in Exmoore House LLC, and resident Paul Orofino filed an Article 78 proceeding in Dutchess County Supreme Court, Poughkeepsie.
They allege in the action that the planning board violated tenets of the state’s Open Meeting Law. Furthermore, in the suit, they ask the court to annul action taken by the board on Nov. 12 and to award them attorney’s fees and any other further relief the court deems proper.
The plaintiff has requested a supreme court hearing on Dec. 19. A confirmation that the documents were served was filed on Dec. 1 with the County Clerk’s Office. The defendants have up until five days prior to the hearing to respond.
The plaintiffs argue that the planning board acted in violation of Article 7 of the New York State Public Officers Law (the Open Meetings Law), thus diminishing public awareness of proceedings leading up to the SEQRA declaration and preliminary approvals.
“The magnitude of the application is unlike any other in village history,” states the petition written up by the plaintiffs’ attorney Allan Rappleyea.
“Whether or not one is ‘for’ or ‘against’ this project, the meetings of the respondent should have been designed to increase and encourage public awareness, not to limit it,” the document states.
On Oct. 29, at the close of the fourth and final public hearing on the Bennett development project, the planning board scheduled a workshop meeting for Nov. 6 during which it planned to further discuss the proposal.
The plaintiffs point out in the document that the final public hearing was held outside village hall, in the Thorne Building, to accommodate the approximate 80 to 120 people who attended.
The Nov. 6 workshop meeting, however, was held in a second-level room at village hall that is able to hold far fewer residents and is not handicapped accessible, the petition points out.
According to the document, at the close of the Nov. 6 meeting, the board announced that it would continue the discussion at hand during a second workshop meeting on Monday, Nov. 10. The meeting was again held on the second floor of village hall at the same time that village trustees were meeting on the lower level.
The petition states that a poll was taken at the end of the Nov. 10 workshop meeting to determine how board members would vote with regard to a SEQRA declaration. The session concluded at approximately 8:30 p.m. and a third meeting was set for 6 p.m. on Wednesday, Nov. 12.
However, and this is the crux of the suit, Nov. 11, Veterans Day, was a national holiday and public offices were closed. The document alleges that the public was not and could not have been properly informed about the upcoming Nov. 12 meeting.
A notice indicating that a “special” meeting would be held “regarding the determination of significance pursuant to SEQRA” at 6 p.m. on Nov. 12, upstairs in village hall, had been faxed to Town Hall, the Millbrook Library, the Millbrook Round Table, and was “possibly,” according to the legal document, posted at Village Hall.
“However,” states the petition, “since such notice could not have been sent, if it were sent at all, until after 8:30 p.m. on Nov. 10, and since all offices were closed on Nov. 11, due to Veterans Day, such notice could not have been viewed by the public until, at the earliest, Nov. 12, the day of the meeting.”
According to the Open Meetings Law, “public notice of the time and place of every other meeting (scheduled less than one week in advance) shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.”
Tice, owner of the Exmoore House property adjacent to the proposed development site, said during a Dec. 3 phone interview that proper notice was not given for either the Nov. 10 or Nov. 12 meeting.
Considering the magnitude of the proposal, Tice said he thought the board should have gone out of its way to promote public awareness of both meetings.
Furthermore, the Open Meetings Law states that public bodies shall make all reasonable efforts to ensure that meetings are held in facilities that promote barrier-free access to the physically handicapped.
The petition points out that all three workshop meetings were held on the second floor of the village hall, a location accessible only by a narrow staircase. The first floor, it adds, has a handicapped accessible ramp.
The document claims that the planning board, by law, had a period of 62 days following the close of the public hearing on Oct. 29 to make a determination of significance.
“You can have an emergency meeting,” said Tice during the Dec. 3 interview, “but you have to have a reason to accelerate the time frames for those meetings.”
According to the document, “There was no valid reason (the planning board) acted the way it did.”
Tice, in the interview, conjectured that the planning board may have been under pressure from the developers and/or their attorney to move things along.
The petition claims that the planning board’s legal counsel commented at the Nov. 10 meeting, as members were discussing dates to reconvene, “there may not be an application before you.” It was not clear what that comment meant, according to the document.
Rich Olson, the planning board’s attorney, said he has not yet had a chance to review the documents and could not account for the validity of this alleged statement.
The plaintiffs are also aggrieved at the planning board’s failure to consider additional information or public comment during or between these final meetings, according to the document.
It states that on Nov. 10, Tice attempted to provide the planning board with a letter and e-mail correspondence with State Historic Preservation Office (SHPO) representatives, indicating that information the board was claiming to rely on was incorrect.
The planning board rejected his submission because it had, at the close of the public hearing on Oct. 29, announced a deadline of 4 p.m. on Nov. 6 for all public comment on the Bennett issue to be received.
According to the petition, at the Nov. 12 meeting, Rappleyea attempted to express objections regarding the lack of compliance with the Open Meetings Law and to inform the board that it possessed incorrect information regarding the application. His requests to speak were denied. “We did everything we could to avoid going into this lawsuit,” said Tice during the interview, again citing Rappleyea’s failed attempts to bring the planning board’s attention to its violation of the Open Meetings Law.
He also claimed to have contacted Mayor Andrew Ciferri the day of the Nov. 12 meeting about violations of the Open Meeting Law. The mayor, he said, tried to notify the planning board of these issues.
“They were aware of this going into the meeting,” he said in the interview.
During the interview, Tice also said the blame for these oversights can not be placed entirely on the board’s shoulders.
He said he believes the haste of the proceedings probably occurred at the request of the developer. However, he commented, “the planning board should put the concerns of residents ahead of the concerns of the developers.”
“I think they’re receiving incredibly bad advice from their attorneys,” he said. “The village lawyers should know this law inside and out- this is Public Law 101.”
Tice and Orofino have asked the court to require the planning board to vacate the negative declaration decision that it made at the Nov. 12 meeting, based on evidence provided in the document.
A recent addition to the Public Officers Law would also allow the court to award the petitioners’ attorney and other fees should their case be successful.
At the very least, Tice commented in the interview, the lawsuit will by him some time to gather more facts and get them in front of the board.