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New Scotland Archives The Altamont Enterprise, November 6, 2008
Super says: Town ethics hearing invalid
By Jo E. Prout
NEW SCOTLAND Controversy continues to swirl around Sphere Development and its plans to build a retail mall at the site of the old Bender melon farm.
Last week, a public relations firm hired by Sphere filed court papers to get money it says it’s owed.
And this week, the town supervisor said he found no basis that the co-chair of a committee appointed to advise the town board on zoning the Bender property had committed an ethics violation.
Supervisor Thomas Dolin’s statement yesterday came on the heels of the town attorney finding that New Scotland’s ethics board, comprised of town board members, is invalid.
Roselyn Robinson, who chairs the Commercial Zone Advisory Committee, has said that Co-chair Elizabeth Kormos has a conflict of interest.
“I think CZAC should resume its work and forward a report of its conclusions to the town board,” Dolin said in an e-mail to town board members.
“Furthermore, after reading the material provided by Roz Robinson in support of her concern that Liz Kormos has committed an ethics violation, I find no basis for such a conclusion…In fact, it has become obvious that she has contributed the most factual information and data relevant to the mission of the committee of any of its members,” Dolin said.
As recently as last week, the town board had planned to hear a conflict-of-interest charge against Kormos and issue a decision.
This week, town attorney L. Michael Mackey found that, according to the state’s general municipal law, “The majority of ethics board [members] cannot be officers or employees of the town,” he told The Enterprise.
Mackey became town attorney in 2004, after the creation of the town ethics law. In 2001, when the law was adopted, no ethics board was appointed by the town. The law, itself, “hasn’t been used since I was town attorney,” Mackey said.
Kormos, who owns a real-estate and health-care consulting company, is accused of having a conflict of interest because she once represented a developer who was interested in the Bender property.
Currently, Sphere Development, of central New York, has proposed building a 750,000-square-foot retail mall on the Bender property located at the intersection of routes 85 and 85A. Massive citizen protests led the town board to adopt a commercial building moratorium while a committee was charged with recommending zoning to comply with the town’s 1994 comprehensive land-use plan.
Kormos favors a 50,000-square-foot cap supported by New Scotlanders for Sound Economic Development, of which she is a member. Sphere has called for Kormos’s removal from the committee. She has refused and said there is no conflict.
The town had delayed the hearing while Mackey and board members researched the proper procedures for holding an ethics hearing; the local law did not provide guidelines.
State law “requires a town that wishes to have an ethics board to appoint a board with at least three members, ‘a majority of whom are not otherwise officers or employees of the town,’” said Peter Lauricella, the attorney representing Kormos. “Since the town board members are employees of the town, the town board’s acting as the ethics board has been illegal from the start. This only confirms Ms. Kormos’s concerns about this process, which has been nothing short of a circus thus far….It looks as though the town board will have to dismiss this proceeding outright, unless they want to ignore the clear dictates of the general municipal law.”
In e-mail messages between the town board and Lauricella, provided to The Enterprise, Lauricella said that he hopes the town will decide that it has no jurisdiction, and that it will dismiss the hearing for Kormos.
“One way or another, they need to do something,” Kormos told The Enterprise yesterday. “This was all unnecessary. It was a major distraction.”
“It really is going to depend on what the town board [members] decide to do. They may vote to send this to the county ethics board, or they may vote to drop the matter,” Mackey said. The town board could also adopt a new local law authorizing the creation of an ethics committee, he said. This option would cause an “obvious delay” while the town drafted the law, held a public hearing, and enacted the new law.
“That’ll take too long,” said Supervisor Thomas Dolin. “That’s got to be done,” he said, but the issue must be resolved “to make sure CZAC gets functioning, again.” Dolin and Mackey agreed that the procedure for creating and enacting a new local law would take 30 to 45 days.
The original building moratorium would have ended this month. The town will hold a public hearing on Nov. 12 at 6 p.m. about a local law that would extend the current commercial building moratorium by three months, giving CZAC until March 1, 2009 to make its recommendations to the planning board. The town board will vote on the local law at its meeting immediately following the public hearing, Mackey said.
On Wednesday, the planning board voted, 5 to 1, to extend the moratorium. Planning board Chairman Robert Stapf, board members Charles Voss, Kevin Kroencke, Lorraine Tuzzolo, and alternate Jo Ann Davies, voted to extend the moratorium until March. Board member Elizabeth Stewart voted against the extension. Board members Cynthia Elliott and Robert Smith were not present.
Stewart said that the town gave residents a six-month moratorium “to get it done, over with, and come up with something.” She said that nothing has been finished.
“The moratorium is ended. Their six months is up. We have zoning in place,” Stewart said.
Stapf noted that he originally voted against the moratorium, stating that the town “can put a moratorium in place once they know what’s going on. We don’t have an applicant. [If we did, we could] let the applicant pay for the appropriate studies,” he said. “That’s not the way we went. It would be inappropriate for me to vote ‘no’ [on the extension] because the town has invested time and money on the moratorium and it should have a chance to finalize the process, whatever that may be.”
The process has been slowed by the conflict-of-interest allegations against Kormos; Robinson has held off having CZAC meetings until the matter is resolved.
“There is an ethics board with jurisdiction and that’s the county ethics board. So there is a legal mechanism for an ethics complaint to be heard,” Mackey said.
The town board does not have to make the request, itself, Dolin said.
“Any individual can do it. Any involved person can request an opinion from the county board of ethics,” he said.
Calls to the county legislature and its ethics commission were not returned by press time.
Dolin said that he had not heard opinions from all the town board members about whether or not to approach the county ethics commission. The commission, he said, can render an opinion.
“They have no right to remove someone,” Dolin said. “The town board has the right to remove somebody they appoint. Generally speaking, I don’t think they would do it without cause.”
Previously, Dolin, an attorney and former town justice, had been unsure if he would review the material brought before the town board by Robinson as evidence of an ethics violation. He wanted to receive legal counsel beforehand, and he did not want to pre-judge the documents, he said.
This week, Dolin spoke out against the ethics hearing.
“After reading Mike Mackey’s opinion concerning New Scotland’s ethics law, and after reading the relevant sections of the general municipal law, I agree that New Scotland’s ethics law, at least the part which provides for the composition of the ethics board, is invalid,” Dolin said.
“In any event,” he went on, “the transaction which is the subject of the allegation originated two years ago, was unsuccessful, and terminated two years ago. As long as Ms. Kormos is not currently involved in any transactions or ventures dealing with properties in the commercial zone, I have no concern,” he said.
A local public relations firm, Zone 5, filed papers last week with State Supreme Court seeking payment for its services.
According to Zone 5’s complaint, Sphere, based in Cazenovia (Madison Co.), paid $2,245.27 toward an order of large prints, outdoor banners, and “no moratorium” fliers that were described in an invoice dated May 12. Days before, a record turnout of hundreds attended a public hearing to support a commercial building moratorium in the town.
Sphere left an unpaid balance of $6,826.92 for the signs, according to the complaint.
Earlier this week, Sphere representatives remained unaware of the suit.
“I’m surprised they filed a lawsuit,” said Sphere managing partner Gregory Widrick. “That’s a disagreement with Zone 5 we’re discussing with them.”
In a letter to The Enterprise this week, resident Christine Galvin, a member of the grassroots group New Scotlanders for Sound Economic Development, quoted Widrick from a May 8 Enterprise article as saying, “The Sphere Group had nothing to do with the printing of the signs. I definitely did not have them printed.” The signs were given out at a meeting at a now-defunct New Scotland Road restaurant just before the vote on the moratorium, according to local business owners who attended the meeting.
This week, Widrick reiterated his lack of involvement with the purchase of anti-moratorium signs.
“We never ordered anything,” Widrick told The Enterprise. He said that Sphere hired a public relations firm to handle its publicity.
“They run with the ball and perform a scope of work,” Widrick said. Ordering signs “wasn’t anything that came from our direction,” he said.
Robert Ganz, an attorney representing Zone 5, told The Enterprise yesterday, “I do not know whether the signs were done specifically at Sphere Development’s request or whether they hired Zone 5 to do general public relations and left them to develop their own strategy.”
He said companies don’t pay bills for a number of reasons, ranging from lack of funds to dissatisfaction. He said he doesn’t know why Sphere hasn’t paid but said they had not been responsive to continued requests so court papers were filed.
Zone 5, Ganz said, is “absolutely willing to settle.” He concluded, “From my client’s perspective…we provided goods and services; we need to be paid.”
“We are committed”
Widrick said that the delay on its project due to the moratorium and the Commercial Zoning Advisory Committee ethics controversy has not dimmed Sphere’s vision about the retail development it has proposed.
“We are committed to this project. We are not going anywhere. We are here till the end,” Widrick said.
Last month, Widrick told The Enterprise that Sphere is willing to cut the size of the mall in half allowing 137,000-square-foot for Target, the anchor store; 90,000 square feet for the next biggest store; and 50,000 square feet for the third biggest store.
This week, Widrick said about the 50,000-square-foot building cap proposed by NS4SED for the commercial zone, “I would love for this to receive a professional review. No feasibility study has been performed to date on how much footage is needed on this site to make a viable project.”
Widrick said that arbitrarily assigning a 50,000 square-foot cap on retail buildings might not allow enough revenue to be generated to pay for the infrastructure improvements that would be necessary with a retail development.
“If there is a minimum square footage to generate revenue to make it viable, I haven’t seen that study,” Widrick said. “Clearly, it should be the responsibility of the town. If we would do it, it would carry no weight.”
Widrick said that a feasibility study would cost about $50,000.
In a letter to the town last month, Sphere called for the removal of CZAC co-chairwoman Elizabeth Kormos, who had represented other potential developers of the same site, and who supports the 50,000 square-foot building cap.
“Obviously, it’s a conflict of interest,” Widrick said of Kormos. “I’m confident that the board will handle it appropriately.”
Kurt Wendler, another Sphere managing partner, said that the town’s zoning is in place for a reason.
“The town should live up to the zoning they’ve had in place for 20-plus years,” Wendler said. He said that a similar development to what Sphere has proposed could have been in place in the commercial zone at any time.
“It’s not a shock to anyone,” he said about the scope of the project.
After town residents recoiled at the original proposed size of the 700,000 square-foot Sphere retail project, Widrick said, Sphere scaled down the project by half. Now, Sphere must wait for the moratorium to end.
“We’ll just wait and see,” Widrick said. “Our hands are tied at this point.”