The town attorney will be consulted...the sequel

Back on December 3, 2011, we wrote our blog, The town attorney will be consulted....

At that time, we were awaiting a decision from the town attorney as to whether or not proper procedure had been followed regarding zoning amendments in the Town of New Hartford; in particular a request made by Mr. Larry Adler to change the zone text in the Planned Development Park District [PDPD].

We hadn't received anything further from the town clerk so we decided to makes some stops this afternoon to get an update on the zone amendment request.

First stop, the assessor's office where we learned that Mr. Adler does not own 50% of the land in the PDPD zone. Guess that settles it...regardless of whether the town wants to "bend" the rules and call his letter the same as a petition; without the signatures of 50% or more property owners, Mr. Adler's request cannot go forward; town code is very clear in this respect.

The assessor also stated that some property owners in Whitestown were close enough to the zone so that they [along with the Whitestown Town Clerk] would have to be notified by mail of the Public Hearing on the zone text amendment request.

The assessor seemed to believe that Mr. Adler had indeed filed a petition with the town clerk, so our next stop was in the Town Clerk's office to once again inquire as to whether or not petitions had been filed.

Sure enough, she had just received signed petitions from 3 other property owners along with one from Larry Adler. Interestingly enough, the petitions were FAXed to the town clerk from Attorney Cully's office on December 7, 2011.

That brings up a question...if Attorney Cully had them, why didn't he present them to the town board at the November 16, 2011 town board meeting in compliance with Town Code? Certainly Attorney Cully is familiar with Town Code; we have been told that he was a member of the Planning Board in a previous administration.

The answer as to why he didn't present them is obvious once you look at the petitions. The dates of the petitions are...November 28, 2011; November 17, 2011; November 19, 2011; and November 22, 2011...all AFTER the November 16, 2011 town board meeting. That being the case, it is safe to say the town attorney was not in possession of the petitions when he introduced Larry Adler's request to the town board.

But that still doesn't answer the question as to why he allowed Adler's request to proceed. Town Code is very clear...the property owners of 50% of acreage in the zone have to bring a petition to be filed in the town clerk's office before it can be brought to the table for town board discussion. Why, then, did the town attorney bring the request to the November 16, 2011 town board meeting in the first place when he clearly was not in possession of the signed petitions and he must have known that the petitions have to be filed with the town clerk to be valid?

When we questioned the town clerk as to where the process stood as of today, she said that a legal notice for a December 21, 2011 Public Hearing was sent to the Observer Dispatch today for publication.

We then questioned how a public hearing could be held without the timely filing of a petition and without a Planning Board meeting as prescribed by Town Code. All she said that she was "told" to move it along...we understood her to mean that the town attorney had told her to publish the legal notice regardless of whether proper procedures were being followed.

So we pointed out to the town clerk that § 118-87-A of the Town Code specifically says:

Report of Planning Board.

All proposed amendments, supplements or changes originating by petition or by motion of the Town Board shall be referred to the Planning Board for a report and recommendation thereon.

So how can there be a Public Hearing before the report is received back from the Planning Board? There is very specific criteria in town code as to the role of the Planning Board and the inquiries they are tasked to make prior to their final recommendation to the town board. Don't the people who will potentially be affected by this change have a right to view the decision making process of the Planning Board and the answers to the questions that are delineated in Town Code as needing to be answered as part of their decision making process?

The town clerk just shrugged her shoulders and said she had been told to move on the Public Hearing. However, she indicated that she was going to confer with the town attorney after we left.

Here's the part we find interesting, Town Code § 118-87 B says:

The Planning Board shall submit its report within 45 days after receiving such referral. Failure of the Planning Board to report within the required time shall be deemed to be a recommendation of approval of the proposed amendment.

But, according to the secretary in the Planning Office, there is no Planning Board meeting scheduled until January...the town clerk's office even called the Planning secretary while we were there so we could be certain that no meeting was to be scheduled.

Let's count...the resolution by the town board was adopted and referred to the Planning Board on November 16, 2011...December has 31 days so that would mean that January 1st is about 45 days from the November adoption of the resolution to refer the request to the Planning Board. So what happens when the required Public Hearing is held, but no Planning Board meeting is scheduled until AFTER the 45 days passes...does it constitute a failure of the Planning Board to report and thus the zone text amendment automatically takes place. Hmmm...was this part of the plan all along?

But, that's not the only problems we have with this request...

Three (3) of the petitions we received were notarized by Thomas J. Valenti. Mr. Valenti just happens to be a principal of Cameron Group, LLC, the parent company of New Hartford Office Group LLC, the owner of record for the business park property.

According to the NYS Dept. of State, a notary is disqualified if:

Though a person may be eligible to hold the office of notary the person may be disqualified to act in certain cases by reason of having an interest in the case. To state the rule broadly: if the notary is a party to or directly and pecuniarily interested in the transaction, the person is not capable of acting in that case.

In New York the courts have held an acknowledgment taken by a person financially or beneficially interested in a party to conveyance or instrument of which it is a part to be a nullity;

Mr. Valenti, as principal owner of Cameron Group, LLC clearly has a pecuniary interest in the zoning text change. Therefore, three (3) of the four (4) petitions that were notarized by Mr. Valenti [Ronald Wargo, member Woods 840, LLC; Michael Paladino; and Larry Adler] would appear to be null and void.

So basically, no petitions were filed with the town clerk prior to the request being brought before the town board as required by Town Code; Mr. Adler does not own 50% of the acreage and needs petitions signed by other owners; currently, there are no valid petitions on file in the town clerk's office; and there will be no Planning Board Meeting until after January 1, 2012.

Yet, according to the town clerk, the notice of the December 21, 2011 Public Hearing was sent to the Observer Dispatch today for publication because she was told to "put it through anyway."

Why?