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Hilltowns Archives —The Altamont Enterprise, May 15, 2008

Three left now?
Milner threatens to resign as planner

By Tyler Schuling

WESTERLO — In the midst of creating the town’s first comprehensive land-use plan, Westerlo’s planning-board chairman was removed from office last month and the board may soon lose another member. 

On Tuesday, Jack Milner, a farmer and member of Westerlo’s planning board, announced his resignation, but, after a lengthy discussion, during which residents asked for answers from their elected officials, Milner was undecided. 

A lifelong Democrat and Westerlo resident, Milner, 68, has been critical of the all-Democratic town board in recent months.  He told The Enterprise after Tuesday’s meeting that he is considering making a run for a council seat in the fall and also thinking about changing his party.

Westerlo’s planning board was created last spring after a 15-year hiatus.  The town board had disbanded the planning board in the early 1990s because developers had complained about requirements and delays.

Like many residents, Milner has recently questioned the town board about removing Leonard Laub, the planning board’s former chairman, from office.  Laub, appointed last year when the planning board was created, continually refused pay and benefits for his position and would not fill out a Civil Service application.  He and town board members have disagreed sharply over understandings from his interview last year.  Westerlo town board members have repeatedly said filling out the Civil Service form has long been required.

Milner called Laub the “cornerstone” of the planning board. (See related letter to the editor)

Laub did not attend the Tuesday meeting.  He told The Enterprise yesterday that he, Milner, and Tom Gallagher of the Albany County Cooperative Extension are now working on sustainable agriculture — how to run farms profitably — “not just in Westerlo, but the area.”

“This has become a major activity by itself and it’s getting a lot of attention,” said Laub.

He called the two meetings in which the planning board met with Westerlo’s farmers “enormous successes.” 

Just one month ago, the town board held a public hearing, and then, in a unanimous decision, removed Laub from office.  While residents have questioned the board’s reasons for removing him, the town’s supervisor, Richard Rapp, has repeatedly said it was an issue of Laub not filling out the form — “plain, pure, and simple.” 

“It seems to me that we’ve got a horrible situation here,” said resident Anita Marrone on Tuesday.  “We’ve got two great men who’ve got good interests for the entire town, and we don’t have them,” she said of Laub and Milner.  “Can anybody explain what is happening here or see what’s happening?”

Rapp said, “Nobody’s saying that Leonard didn’t have great interests.  We know he does…I’ve known Jack since we were babies together, and I know he has interests.  So nobody’s saying that.”

In recent months, Milner and residents have also questioned a resolution, passed unanimously in a February executive session, for all appointed and elected town officials to fill out a Civil Service application.  Officials have said that the requirement for filling out the form has long been in place, and, because one person had not filled out the application, the town board then, in February, formalized the requirement. 

Procedural questions

On April 3, the day after the town board voted unanimously to hold a public hearing on removing Laub, he scheduled a meeting on regional planning and sustainable agriculture for April 17, two days after the hearing.

On April 16, the night after Laub was removed, three members of the town board — Councilman Ed Rash, Councilman R. Gregory Zeh Jr., and Rapp — met in a meeting, of which the press wasn’t informed, and appointed planning-board member Andrew Brick as the board’s new chairman. 

Milner and some residents have questioned whether the April 16 meeting was legal, as well as the town board’s decision in choosing Brick as the board’s chairman and whether the planning board, not the town board, should have made the appointment.

The town did not, as stipulated in the state’s Open Meetings Law, run a public notice of the meeting in its official newspaper, The Altamont Enterprise, nor did it contact the press.

“We didn’t have time.  That’s why we did what we did,” Rapp said Tuesday of the April 16 meeting.  He added that a comprehensive-plan meeting was scheduled for the following night. 

Robert Freeman, the executive director of the state’s Committee On Open Government, cited Section 62.2, of the state’s Town Law.  It says, “The supervisor of any town may, and upon written request of two members of the board, shall, within 10 days, call a special meeting of the town board by giving at least two days’ notice in writing to members of the time when and the place where the meeting is to be held.”

Freeman told The Enterprise yesterday, “If this Wednesday meeting had not been scheduled, it seems to me that the town board could not have complied with that section of the Town Law.  It could not have been two days notice.”

He said, even in situations where, arguably, the board members can waive notice, it seems that a valid meeting can only be held if all of the members participate, not three out of five. 

“Based upon Section 62 of the Town Law, the Wednesday meeting appears to have been invalidly held,” he said. 

On Tuesday, Westerlo resident Patrick Testo said, “It seems like every time that something needs to get done that that’s the protocol. And, in this instance, it wasn’t followed at all.

“For me, as a citizen, I see that, and it just doesn’t make sense to me that that’s the way it was handled,” Testo said.  He suggested that the town board could have postponed the planning board’s Thursday meeting or appointed an interim person.

Zeh said Tuesday that residents also attended the meeting in which Brick was appointed.  Rapp said an announcement of the meeting was posted at Town Hall. 

Referring to the town’s attorney, Aline Galgay, Rapp said, “In her opinion, we did the right thing.”  Galgay did not attend Tuesday’s meeting. 

New chair

Throughout Tuesday’s meeting, Milner and a few residents asked about the appointment of Brick as chairman of the planning board.  Brick was supported again on Tuesday by the town board, with four members attending, and by members of the planning board. 

“How come no one else was brought up to be the chairman of the board other than Andy Brick?” Milner asked the board.

 “You’ve got one attorney here running the show.  You don’t need two.”  Milner said.  “That’s a matter of opinion, Jack,” said Rapp.

When the town board interviewed candidates for the planning board last year, Brick was the board’s “first pick,” Rapp said.  Brick was then the attorney for another town so the board decided, Rapp said, “to give it to Leonard.”

Last year, the town board interviewed seven candidates for the planning board, and talked to each about staggered terms and a chairperson position, said Zeh. 

“When the vacancy occurred, our natural instinct was to go back to the person we asked the first time,” said Zeh, referring to Brick. 

“The reason he was appointed to his position…was based on his planning experience throughout the state of New York.  He’s got far superior planning experience than anyone else on our planning board and has more than enough experience, and education, and knowledge to serve the role of chairman of the board of the town of Westerlo,” said Zeh. 

Brick has been a planning and zoning attorney as well as an attorney for neighboring towns.  He is currently the deputy city attorney for the city of Schenectady. 

On Tuesday, the town board, with four members attending, again appointed Brick as the planning board’s chairman. 

LindaQuay Milner, Jack Milner’s wife, asked why the board was again appointing Brick on Tuesday when he’d been appointed last month. 

Rapp said, “The Association of Towns told us to do it that way.  That’s what we’re doing.”

The Association of Towns did not respond before press time.

Marrone raised questions about a Greenville court settlement, which Brick said he could not comment on. 

Milner said Tuesday he had prepared a résumé to apply for the chairman position and asked why he wasn’t considered.  He faulted the town board for not seeking input from planning board members on a new chair.

Gerald Boone, a farmer and planning-board member said, “Andy’s more than qualified than me.  He can have the job, but I think a little courtesy should have been extended to us.”

“I think that Andy is probably the most qualified for the position, and I would be glad to have him as our chair,” said planning-board member Kristen Slaver.

Zeh said, “I still agree with the decision that I made as far as the appointment.  I still agree with the fact that I think Jack’s a valuable member of the planning board and he should be a member of the planning board.”

Milner questioned whether the town board is the proper board to appoint a new chair for the planning board, and he cited Article 271 of the state’s Town Law, which says, “In the absence of a chairperson, the planning board may designate a member to serve as chairperson.”

Officials and residents interpreted the law differently.   

Milner construed it to mean that the planning board is the board to appoint its new chairman. 

Rapp said he thought the law means that the planning board can appoint a member to serve as the chair if the chairperson doesn’t show up at a meeting. 

Resident Weston Testo said it seems like a scheduled meeting, such as the planning board’s meeting two days after Laub was removed, would have been the perfect situation to use the law and that someone already on the planning board could have filled in for the meeting.

After Milner announced his resignation at the beginning of Tuesday’s meeting, some residents urged him to continue serving on the board. 

“I’m hoping that you [the town board] would have a meeting with Mr. Milner to take back his position and appoint him,” said Marrone.

“I would like to see Jack stay on because he’s one of our strongholds that can protect our farmland,” said resident Laura Palmer.  Residents applauded. 

Milner, still, was uncertain about continuing on the board.

“I’d have to think about it,” he said. 

After removing Laub from office last month, town board members were peppered with questions from residents.

Marrone said, “Let’s just say for the skeptics here, including myself: Why would you have a man that is so qualified and let him go when you’re facing, possibly, a lot of big business and development coming in to mess up farmland and agriculture…when this man, Mr. Laub, is so for farmland, and he’s now removed from his position?”

She asked, “Does it kind of slant one’s thoughts that, maybe, the town could possibly just be interested in the development of homes, and construction, and so forth?  It enters my mind, I don’t know if it enters anyone else’s.”

Rapp replied, “All’s Leonard had to do is make out that damn form, and we would not be doing any of this.  But he won’t do it.  What am I going to do?

“We’ve been after him and after him and after him and after him and after him,” said Rapp.  “He won’t make it out.  I don’t know what to tell you.”

Officials’ views

Officials at the state and county level are still sorting out the legality of the town’s actions.

Kerri Battle, spokesperson for Albany County, told The Enterprise yesterday that Westerlo had not contacted the Albany County Civil Service department.

Kim Slingerland, the supervisor’s clerk, said Tuesday she had spoken with Rick Hoffman of the Department of State and Bob Conway, who is the commissioner of human resources of the Albany County Civil Service.

Battle said the town needs to contact the county’s Civil Service director, explain the position and responsibilities of the position, and then the county will work with the state’s Civil Service to classify the position.

In Westerlo, planning board members earn $2,500 annually, and the chairperson of the board earns $4,500. 

“Rick [Hoffman] told me that they were under the impression that this was an unpaid position.  If it is an unpaid position, all they have to do is take the oath of office,” Slingerland said. 

Lauren Rivera, the director of public information for the state’s Department of State, said Hoffman told Slingerland, “If it is paid, check with Civil Service.”

Slingerland said Bob Conway with the county’s Civil Service told her that, since the chairman of the planning board is a paid position, and it is a Civil Service position, that the chairman does not have to take a Civil Service exam, but he does have to fill out the paperwork just like everybody else. 

“You didn’t have a legal law here until Feb. 6 when you passed that.  Leonard was working for nothing up to that point,” said Milner. 

“It’s been in place, but it was never made a resolution here or anything like that until then,” said Slingerland.  “But it has always been in place with Albany County Civil Service, and I have to answer to Albany County Civil Service with every employee that is in the town of Westerlo,” she said.  “It is a paid position.  They all told me that they were under the assumption that it was unpaid.”

“Rick [Hoffman] was surprised that the planning board got paid because he said, in most towns and villages, they do not get paid at all,” said Slingerland.

The town board, she said, can appoint the planning board chairman.

This was confirmed through the Department of State this week. 

Zoning nullified
Open Meetings law violated

By Tyler Schuling

RENSSELAERVILLE — An April 23 state Supreme Court decision nullifies and voids Rensselaerville’s new zoning law.  The town has now reverted back to its old laws.

“We expected to win it,” said Vernon Husek this week.  Husek founded and leads Rensselaerville Farmland Protection, a grassroots group that sued the town in January over its new zoning law, adopted last December.

In its suit, RFP drew attention to an inconsistency in Rensselaerville planning.

The town’s master plan, unanimously adopted by the town board in March of 2007 and used as a template to draft new zoning laws, calls for one dwelling per 20 acres in the town’s agricultural district.  But that requirement was not followed when the town board, in another unanimous decision, adopted in December a new zoning law, which includes a five-acre requirement.

But the inconsistency between the master plan and the adopted law was not the reason the town’s zoning law was nullified.

The town violated the state’s Open Meetings Law by failing to publish a notice of the special meeting that followed the Dec. 19 public hearing, according to the decision by Judge John C. Egan Jr. 

The judge did not rule on RFP’s other contentions — about the need for the zoning to follow the comprehensive plan — because the violation of the Open Meetings Law was a threshold issue that settled the case. 

Three members of RFP — John Hernick, Diana Deitrich, and Gordon Enk — testified that they did not attend the December hearing, and, had they known the town board was also holding a special meeting after, they would have attended to observe and participate. 

The decision cites two Rensselaerville hearings in 2007 — one on Aug. 9 and the other on Nov. 8 — when the town published both notices of the hearings and separate notices that meetings would immediately follow.

Members of RFP have been outspoken proponents of protecting the town’s prime soils and farmland from development.  They favor a low-density requirement in the town’s agricultural district, whereby fewer house lots are allowed and build-out of potential homes is reduced. 

Leaders of the group, including Husek and Jeannette Rice, have outlined their viewpoint by highlighting 20-acre net-density agricultural zoning, whereby, on a 100-acre parcel, five lots — of sizes to be determined by site conditions — would be allowed.

The town, in adopting a five-acre requirement, would permit up to 20 dwellings on that same size parcel.

“We’re not for big lots,” said Husek.  “We don’t want big house lots.  That’s exactly what we don’t want.  We want small house lots.  We just don’t want as many of them as the town board seems to be moving towards and approving.  And I’m convinced they don’t know what the hell they were doing because they can’t explain it.”

Husek had chaired the master-plan committee but resigned after it became clear the committee’s initial recommendations for the agricultural district were not going to be followed. 

Asked how much RFP has spent on legal fees, Husek said, “It’s an expensive proposition and we’re operating entirely with private donations, whereas the town is dipping into the public purse.”

In 2006 and 2007, the town held two public hearings and worked for 20 months on the planning process — compiling information about the town and writing a comprehensive land-use plan, then using that plan, which includes town goals and recommendations, to draft new zoning laws. 

In reverting back to its old laws, Rensselaerville is now guided by the same minimum lot-size requirement it had adopted in December of one dwelling per five acres in the town’s agricultural district. 

To readopt new zoning laws, the Rensselaerville Town Board would have to hold another public hearing and vote again on the law. 

And now?

The town’s Republican supervisor, Jost Nickelsberg, who is now in the minority on a town board with a Democratic majority, was asked this week whether the town will change its zoning and whether a compromise could be struck in agricultural zoning between RFP and the town.

Democratic Councilman Gary Chase could not be reached for comment.

RFP has said it will file another suit should the town readopt five-acre zoning. 

“I think we have to sit and listen to their logic and concerns, but we’ve really exhausted the topic.  You can’t say ‘completely’ exhausted the topic,” Nickelsberg said this week. 

The town, he said, has sent out surveys and held meetings and discussions.

“It’s very clear that that group feels very strongly about that issue.  And a lot of people feel strongly in several other directions,” said Nickelsberg. 

“So, will we talk about it?” he asked.  “They’re citizens and they need to express themselves, and we need to listen to the logic of what they have to say.  And ignoring it is not the way to do that so we’re definitely going to listen to what they have to say.”

Nickelsberg said there are four views: RFP’s; “the extreme opposite” — to not take away values or assets from landowners because their land is their pension; to buy land to preserve open space; and to raise funds for farmland preservation.  And, he said, there are probably others. 

“So, to the extent that we don’t have a moratorium,” said Nickelsberg, “we’re going to have to look at it hard and aggressively, figure out what, if anything, makes sense other than what we have and then get on with it.” 

Throughout the 20 months that Rensselaerville worked on its comprehensive plan and drafted new zoning laws, a committee, officials, and residents have considered many lot requirements for the town’s agricultural district — five, 10, 20, and 25 acres.  When the town held its first public hearing just over a year ago, the requirement under consideration was 10 acres. 

Could a compromise be struck in agricultural zoning?

“That’s a core question,” Nickelsberg said.  “We did have, at one point, 10 acres.  That was a compromise, clearly, relative to what we now have and what some people wanted, which was 20 or 25 acres.”

“Is it possible to compromise?” Nickelsberg asked.

“I guess you never can say ‘never,’ right?  But I couldn’t begin to think about what the odds might be,” said Nickelsberg.  “But I think every view is going to have an advocate, and they’ll just have to be persuasive relative to what the support of the conclusion is.” 

He said the town’s planning board wants to make some changes to the zoning law. 

“We, all along, have been saying, and, in fact, feel, that it is a living, breathing, evolving document,” Nickelsberg said.  “You put something that complex, that many moving parts together, you’re going to have some things that you want to change.”

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