Category Archives: FOIL

F.E.I.S. = Faking Everything In Secret?

I am indebted to a comment posted by reader Phil Bracchi on my recent “Watching sausage made” column for the equation in the title above. Actually Phil is a former English teacher and he rightly pointed out that you can also substitute a number of other “F” verb participles to create even more accurate translations of F.E.I.S.

When I finally got a chance to read the Final Environmental Impact Statement last weekend, I discovered that it was a stunning monument to over three years of deceit and misrepresentation in our local government. It is said that behind every great fortune is a great crime, but I find that behind the small fortune that Lowe’s hopes to make in Geneseo is a whole series of petty crimes, adding up to a huge violation of truth, justice and the American Way.

Now before everybody gets their panties in a bunch, I do not mean to suggest that anybody has broken any criminal laws that they should be thrown in the hoosegow for. After all, lying in politics is as American as apple pie, and the Freedom of Information Act is unfortunately not part of our NYS penal code.

For those who our regular readers of the Clarion Call Blogs and The PDDG File website, none of what I am about to detail is news or surprising. For those who may be new to the sausage factory, however, the following catalogue of petty crimes may be instructive:

1. Thumbs on the scale. We will probably never know for sure exactly what role Newman Development played in the writing of the PDD law in the first place. This is because all the correspondence between Newman and our town attorneys at Underberg and Kessler on the subject has conveniently disappeared. Suffice is to say that the whole Lowe’s project could never have gotten started in the Gateway under the existing zoning without this legislative sleight of hand.

2. Murder in the cradle. In order for the Lowe’s project to live it was necessary for the new-born Master Plan to die. Despite the fact that volunteers had worked countless hours for over three years fashioning a proposed new Master Plan, these citizens made the mistake of not kowtowing to the new party line. Off with their heads!

3. Twisting in the wind. The Access Management Plan was a supposed 6-month study of the Rt. 20A corridor that began in the spring of 2005. It fell victim to the Lowe’s project after consultant Steve Ferranti made the mistake of telling the truth about 20A at a public meeting. As a result, all meetings of the Access Management Committee were suspended indefinitely while Steve was taken into the back room and beaten until he saw the light. Only after he recanted his heresy was he allowed to collect his $35,000 fee, but the final plan is so badly flawed that it will never be adopted.

4. He who pays the piper. Another hefty check was cut by the town to the Center for Governmental Research for their study of the potential economic impact of a Lowe’s. For this study, CGR appeared to become a wholly-owned subsidiary of the Geneseo Town Board. The numbers were carefully massaged to show an unbelievably positive return of sales tax to Livingston County with minimal loss of business for existing stores. If you believe this I have some swamp land in the Conesus Lake inlet I want to sell you.

5. What infrastructure money? After careful research I established that the first $300,000 invested in building  Volunteer Road and the Gateway District infrastructure came from Livingston County’s Industrial Infrastructure Fund. These funds, by both state law and local county policy, were forbidden to be used for retail development. No problem! Just get the county attorney to issue a letter denying the source of the money, and even after he is forced to retract that letter, continue to use it as if it were the truth. Nobody will know the difference!

6. Bring in the muscle. When your local Planning Board strays off the reservation, quickly refer the matter to the County Planning Board to get things straightened out. The County Board can be counted on to see the wisdom of stoking up the county sales tax dollars by concentrating all the retail expansion in Geneseo. Home rule? We don’t need no stinking home rule!

7. When all else fails, gut the board. Don’t like an independent Planning Board that actually thinks for itself? Simple. Just appoint a new chairman and then fail to re-appoint members who will not toe the party line. A new board member comes up for appointment every year, so you can have the board eating out of your hand in no time!

8. Freedom to Stonewall Information? The FOIL law in this state is a joke and the lawyers know it. There are no effective penalties for violating the law and there is thus no way to force the government to disgorge public documents if they don’t feel like it. It is particularly difficult to uncover the large amount of public communications that are in the form of e-mails  Oops! My computer ate the record!

This listing is by no means complete. There are many more petty crimes surrounding this caper, but I grow weary of recounting them. Feel free to use the comment button to add a few of your own! See you next Monday night for the exciting conclusion!

Watching sausage made

Now we can add a third item to Bismarck’s famous list of the things you don’t want to watch being made. In addition to “sausage and legislation,” we can now add Environmental Impact Statements, at least in the Town of Geneseo.

Last night’s dismal meeting and approval of the FEIS was perhaps a fitting end to a process that has been a travesty and a farce from the beginning. With the board voting to push the process ahead despite very limited review of what their consultants had cooked up for them, they kept their record of mediocrity perfect.

Of course, its not that the board’s counsel didn’t labor mightily to keep the sausage-making hidden from public view. For the past few months an iron curtain has been thrown down on all communications in the delicate negotiations between the board’s consultants and the developer.

Despite repeated FOIL requests filed by PDDG, the public (and the board) has only been allowed a few hazy glimpses of what has been going on behind the scenes. In fact, it appears that major policy decisions were made at private meetings at which no written records were kept at all. It just wouldn’t do for the public to know what deals were being cut in their name.

Despite a standing-room only expression of interest from the public last night, the process ended not with a bang but a whimper. Board member Patti Lavigne made some good points but then admitted that she had had only limited time to review the document and had not had a chance to read all of it. While this should have been an obvious clue that more time was needed for the board to consider the FEIS, nothing was going to interfere with Chairman Folts demand that the railroad keep running on time.

The bottom line is that the fix has clearly been in ever since the Town Board gutted the opposition on the Planning Board by failing to reappoint former members Craig Macauley and John Zmich. Supporters of the project now have a clear majority on the board and they are going to move this along as fast as they can, environmental impacts and proper SEQR procedures be damned.

So what else is new? The developer has been pushing for such a result for the last two years and the stacked board is now finally in a position to give it to them. Ironically, however, the board’s haste will probably have the opposite effect.

By failing to require the applicant to do an honest assessment of the Environmental Impacts, and by running roughshod over SEQR procedure and the board’s obligation to take a “hard look” at the evidence, the board has planted the seeds for a successful lawsuit. Although the board could yet salvage the situation by adopting a strong findings statement later this month, don’t bet the farm on that. It will probably just be more sausage!

In the belly of the beast

Today Bill Lofquist and I spent two hours poring over the “client’s file” at the offices of Underberg and Kessler, the attorneys for the Town of Geneseo. UK is located on the third floor of the new world headquarters of Bausch and Lomb in downtown Rochester.

The client in question, of course, is Newman Development, and the file was supposed to be everything that the town attorneys had concerning the Geneseo Town Center application that was not exempt from disclosure. Our visit there was in response to a FOIL request filed by Bill Lofquist earlier this year.

Continue reading

Civil Disobedience

Monday night, for the second time in my life, I was willing to go to jail for a principle. The first time ocurred during the Great Avon Garbage War of 1993. (That episode is recounted in my collection of columns, Writing for Myself: And ticking everybody else off! available at fine bookstores everywhere!)

As I observed in my introduction to the May 20, 1993 column, “Sometimes the power of the press is not enough to insure justice and the publisher himself has to throw himself on the barricades.” In that case, it was the right of every legitimate voter to have his vote counted, last night, it was the right of the public to have access to our public documents in a timely manner. (See clarion news blog coverage).

Let’s face it, the Freedom of Information Law gets no respect, at least not in Geneseo lately. PDDG had to go to court to try to get the town to disclose public records that were referenced in the town attorney’s bills. The town successfully thumbed its nose at us by saying that the records couldn’t be found and must have been “inadvertently destroyed.”

Then we sent four opinions to the Planning Board and its attorney last week, all showing, without a doubt, that a DEIS and all records submitted by a developer related to a DEIS, are public under the Freedom of Information Law. Even so, Planning Board’s attorney, Joe Picciotti, refused to release an important public document in time for a critical meeting on the DEIS.

To add insult to injury, Mr. Picciotti also ignored our written request to provide a citation to any legal opinion or precedent that would support his interpretation that the documents are not public. He did this, no doubt, because he knew that the remedy of bringing a Article 78 petition is long and expensive, and that his client (whom he seems to wrongly perceive to be the Chairman) can violate the spirit of the law by complying with the letter of the law, which allows delaying disclosure until it is too late for anyone to care.

This alone would probably not have been enough to set me off, except that it is part of an ongoing pattern of trying to keep the public in the dark as to the arguments that Newman is making to our town officials and consultants so they can not be rebutted. In fact, another recent PDDG FOIL produced a previously unknown memo from the developer’s engineers addressing PDDG’s positions that Chairman Folts had “forgotten” to give to the rest of his own board.

Going into the meeting, I knew there was at least a possibility that I would be arrested, but I decided that the lawless behavior of the Planning Board under the leadership of Chairman Folts and the illegal guidance of Mr. Picciotti had gone on long enough.

I also knew that, whether I was arrested or not, my decision to confront the Chairman and speak out would cause me political damage in my run for town supervisor– but I am not one who can to sit back and let injustice prevail without a fight. I spoke Monday, because faced with such a arrogant and cynical attempt to circumvent the law, I could do nothing else– no matter what the consequences.

Fear and loathing in Geneseo

As if it hadn’t already been obvious, last night’s meeting of the Geneseo Planning Board brought further confirmation that something’s gone horribly wrong with the process in the board’s review of the Newman PDD proposal. The meeting started with a lecture from Newman attorney Tom Greiner about how the DEIS should not be a public document and the planning board should not listen to any “outside” opinions about the completeness of the document.

Thankfully, I was a few minutes late and missed this sermon. It’s probably just as well because my blood pressure immediately soared to dangerous levels once Chairman Folts turned the podium over to Tom Jerum, of Jerum-Ferrara, the wonderful folks who have quarterbacked this catastrophe.

Unfortunately there is only one play in the Newman-Jerum-Ferrara-Kamlet- Kennison-Coniglio-Folts-Greiner playbook: Do as little as possible about addressing the real concerns of the community, while huffing and puffing about what a great job they’re doing and threatening the board with a lawsuit if they continue to do their job correctly.

Man this is getting old! After the first two minutes of Mr. Jerum’s presentation, by which time I had already lost count of the number of lies, I was overcome with a wave of nausea and had to seek fresh air. After 20 minutes on a bench enjoying the beautiful early evening and our historic Downtown ambiance, I ventured back inside to hear the town’s consultants state the obvious: that the DEIS is woefully incomplete and does not come close to satisfying the scope that the Planning Board passed in February.

And then, big surprise, Mr. Ferum, had a 25-point rebuttal of the town’s consultant’s claims which boiled down to something like,”The answers you seek are hidden in the 900-page DEIS document, you just need to use our special decoder to uncover the disappearing ink.” At least that’s all I understood before I had to bolt out of the room with another wave of nausea.

By this time, I found I was not alone, as the group of citizens who could not stomach the proceedings had grown to at least 10. As we fulminated about the absurdity of allowing Newman to spring last minute technical arguments on the board without advance notice or the presence of the town’s chief engineer, word began to leak out from other refugees fleeing the debacle that the Newman railroad was running off the tracks.

Taking hope, I dared to return to the chamber of horrors one last time, just in time to hear Newman’s reps agree to a one-week extension of the deadline to decide completeness. They did this, no doubt, because it became clear that once again their strategy of overwhelming the board with lies and threats had failed.

As a parting shot they maintained that the 25 point argument that they had just presented to the Planning Board was not a public record. You’ve got to give these people credit for one thing: they lead the league in chutzpah!

Little things

Sometimes you can tell a lot about a person by the way they deal with little things. For instance, little things like obeying the law.

My problems with Geneseo Supervisor Wes Kennison started a few years ago over what some might consider a little thing. One morning I was sitting in my newspaper office when I heard the fax machine chime. I walked over and picked up a notice of a 9:30 a.m. special meeting of the Geneseo Town Board.

I quickly glanced at the clock and saw that it was 9:35.  I grabbed my notebook and ran down the street to find out what was going on. When I arrived a few minutes later I found the board still sitting around the table, but was told the meeting was already over.

In those days, when my temper was a little less under control, I reacted with predictable anger.  The law clearly requires that local media be given notice of any special meetings of the board. How could a 9:35 notice be adequate for a 9:30 meeting?

Wes’s reaction was to laugh at me and tell me that the matter under consideration was not important. His attitude semed to be that breakimg the Open Meeting law was no big deal, and I was being unreasonable to demand that the law be followed. Sound familiar?

In the next issue of the paper I wrote my column about this incident and pointed out that anyone who didn’t respect the law in a small thing would probably be willing to break laws on bigger matters. I suppose some people will think this is a harsh personal attack, but I believe that subsequent history has proven the truth of this observation.

While the true facts surrounding Petitiongate are still under investigation, it would fit Wes’s pattern if it turns out that he was in this thing up to his eyebrows. My understanding is that his alibi to investigators will be that he was in Italy when all this happened and he had nothing to do with it. This is simply not credible to anyone who knows the circumstances and the personalities involved.

There is also a continuing problem with the town’s compliance with the Freedom of Information law. PDDG’s Article 78 lawsuit was dismissed by the courts after the judge accepted the town’s assurance that they had diligently searched their files and could not find public documents that were clearly listed as existing on the town attorney’s billing records.

If this is true, (and if you believe that, I have some prime swamp land in Florida I want to sell you), then that means that the town is in violation of the NYS Arts and Cultural Affairs law, which requires that all public records be preserved for at least six years. Another little thing, perhaps, but kind of important if the public is to keep track of what is being done in our name.

We deserve better from our public officials in big and little things.

Mistaken identity

One of the most comical (to me) elements of our recent Article 78 lawsuit against the Town of Geneseo was the court’s confusion over my role. Although I officially retired from the practice of law in 1986, I did draft the petition that started this action, (although I certainly didn’t get paid for it!)

The papers made it very clear that Bill and I were acting pro se, that is, without benefit of counsel. In order to understand that, however, either Judge Ann Marie Taddeo or her clerk would have had to actually read the papers. When we arrived in the judge’s chambers for a conference last month, however, it quickly became apparent that they hadn’t.

To be fair, the illusion of my lawyerness was enhanced by the fact that I had put on my best coat and tie and dusted off my briefcase to make my appearance as convincing as possible. When the judge asked me who I was representing in the action I knew my disguise was complete.

“I’m one of the petitioners,” I protested, but it later became apparent that the judge did not really understand. Fast forward, one month and after a series of unanswered e-mails to the court clerk, we finally got a response just a week before we were scheduled to appear for a second conference.

In the e-mail addressed to me, the clerk wrote, “When Justice Taddeo met with you in chambers on 5/16, we were both under the mistaken impression that you were an attorney representing the Plaintiff. This is important because the court rules require all communications with pro se litigants to be on the record. Had we known that you were not an attorney we would have conducted your conference in the courtroom. Similarly, the judge or I can not reply directly to your letters or e-mails. We can of course, speak with your counsel. Please understand that these rules are for your own protection. I apologize for any inconvenience. Justice Taddeo will be able to answer you questions next week when the case is scheduled to appear in front of her again.”

But, of course, Justice Taddeo never did answer any of our questions. A few days later we received a written decision dismissing our lawsuit and canceling Thursday’s conference. As a result we never got the right to appear in open court as, supposedly, the court rules require.

That’s O.K. I guess. As long as it was for our own protection!