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Dec 5, 2018 9:31 AMPublication: The Southampton Press

State Official: Southampton Town ZBA Policy Appears To Be In Violation Of Open Meetings Law

The Southampton Town Zoning Board of Appeals.  DANA SHAW
Dec 5, 2018 11:48 AM

The state’s open government watchdog said this week that the Southampton Town Zoning Board of Appeals, in offering an official interpretation of the town code as it applies to Discovery Land Company’s proposed golf resort housing complex in East Quogue without its members discussing their positions publicly, could be in violation of the state’s Open Meetings Law.

Robert Freeman, executive director for the State Committee on Open Government, part of the Department of State that offers legal opinions and advice on matters of access to government meetings and documents, said last week that should a court agree that the ZBA’s actions were in violation of the Open Meetings Law, a judge would have the authority to invalidate the board’s decision.

But the stakes could go well beyond the Discovery Land application: The ZBA rarely deliberates in public on any application, nor has it for years.

Mr. Freeman said controversial topics before government bodies should be discussed publicly—the point of the state’s Open Meetings Law.

“ZBA deliberations clearly fall within the scope of the Open Meetings Law—and, in fact, the law was amended more than 30 years ago to ensure that that be so,” he said.

He added, “It used to be that deliberation could have been conducted in private. That changed. Why? Because the functions of a ZBA are really important to communities. That change in the law was intended to open the deliberative process.”

It’s unclear who initiated the Southampton Town ZBA’s current policy. Chairman Adam Grossman, who has served on the board for 17 years, said it predates his time on the board. He noted, “Everything we do is guided by the town attorney’s office.”

He added that deliberations should be public, but again stressed that since the ZBA does not engage in deliberations, there is nothing to be made public.

“What has occurred in terms of the way in which our board operates is not deliberation—it’s polling,” he said. “For what it’s worth, I consider deliberation to be interactions between board members, and that should be public. I don’t dispute that. It’s just not how we operate.”

Mr. Grossman acknowledged that a closer examination of the policy might be in order. “It’s our absolute goal and intention to fully comply with the Open Meetings Law,” he said this week. “More importantly, to have a fair and even-handed process, and if, at the end of that process, people are unhappy, we understand that that is part of our job.”

Despite several public hearings, and a 5-2 vote on November 15 that demonstrated a difference of opinion among board members, the ZBA members never discussed the question at a public meeting, nor did they offer comments after casting the public vote, at the meeting or since.

The ruling interpreted the town code in favor of Discovery Land’s proposal to build an 18-hole golf course as a residential amenity, or accessory use, to a 118-unit residential subdivision on nearly 600 acres in East Quogue. That proposal now goes to the Planning Board for consideration, with a major obstacle cleared.

Typically, ZBA members vote on a written decision drafted in advance by Assistant Town Attorney Kathryn Garvin, without public deliberation. That practice, some residents and watchdogs have argued, violates the Open Meetings Law, which requires that all “deliberation”—every substantive discussion that leads to a vote, and not just the vote itself—must take place in public.

“How can a deliberative body legitimately operate in the complete absence of any actual deliberation?” asked Robert DeLuca, president of the Group for the East End, who argues for greater transparency. “The expression of questions, exchange of ideas and discourse among board members is fundamental to deliberative decision-making and relevant to the public they serve in rendering some of the most consequential land use decisions affecting the town.”

Mr. Grossman maintains that the ZBA does not generally deliberate at all. Rather, Ms. Garvin sends a private email to each individual board member, asking whether they are in favor of or opposed to the application. Board members typically respond with a simple “yes” or “no,” he said. Then, the written decision, which is strictly derived from the testimony submitted by attorneys arguing in favor of and against the application, is prepared by the attorney based on the email responses, and a public vote is held.

Ms. Garvin, who, thus, is solely responsible for selecting what information to include in the written decision, did not return multiple requests for comment this week.

“Often, the attorneys make their rationale known,” Mr. Grossman explained. “When you vote ‘yes,’ you’re saying, essentially, you agree with the arguments of the attorney that is representing the applicant.”

He added that the process benefits board members, in that it allows them ample time to review the stacks of public comments and written material submitted during public meetings, rather than engaging in a public discussion. “Board members often have to digest a lot of information,” he said.

But, on Monday, he also acknowledged another reason that ZBA members are wary of public discussion: They must be cautious when rendering a decision—out of fear of litigation.

“I’m always keeping in mind that the application may end up going to the Supreme Court,” Mr. Grossman said. “We have to be very careful in what we say and how we say it.”

Arizona-based Discovery Land Company—the developers behind a controversial golf course community in East Quogue—filed a $100 million lawsuit against the Southampton Town Board, singling out board members Julie Lofstad and John Bouvier for voting against the developer’s nearly identical plan last year, which originally sought a change of zone.

Mr. Freeman noted that emails between the ZBA members and the attorney are not considered to be deliberations and are not subject to public review, due to the fact that there is no instantaneous communication. “When it’s sent out to all the members of the board, the question is: Does that represent a failure to comply with the Open Meetings Law? And the answer is no.”

He went on to define deliberations as the “back-and-forth discussion” between board members, and quoted the Open Meetings Law’s legislative declaration, which spells out the importance of the law: “It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and discussions that go into the making of public policy.”

Mr. Grossman has argued that the 16-page written decision regarding Discovery Land’s proposal “speaks for itself,” noting that the rationale behind the majority of the board is clearly laid out.

However, the vote was not unanimous—and the opinions of the dissenting board members, Mr. Grossman and ZBA member Helene Burgess, are not included in the decision, nor have they been shared publicly. Their rationale for doing so is still unclear.

In a previous interview, Mr. Grossman explained that the board does not offer dissenting opinions in ZBA decisions.

Under such circumstances, Mr. Freeman noted that it can be argued that Mr. Grossman’s and Ms. Burgess’s actions do not comply with the Open Meetings Law.

Originally, Mr. Grossman had defended the ZBA’s policy by citing a 1978 appellate court decision that the Board of Assessment Review of the Town of Clifton Park was not subject to the Open Meetings Law. Judicial or quasi-judicial proceedings, such as court decisions, are exempt from the law—and Mr. Freeman himself offered an opinion on that decision that the Board of Assessment Review’s deliberationsn “could be characterized as quasi-judicial proceedings that would be exempt from the Open Meetings Law.”

The town’s position has been: The ZBA, likewise, is a quasi-judicial board, and thus exempt from the Open Meetings Law and its requirement for public deliberations.

But there are two problems with that argument, Mr. Freeman noted. The first is that assessment review boards and ZBAs are two completely different types of entities. The second: The State Legislature recognized that, after the cited decision, and revised the Open Meetings Law to specifically exclude zoning boards of appeals from the “quasi-judicial board” exception.

“Due to the significance of a ZBA in a community, the law was clarified in a way that prohibits a ZBA from exempting itself from the Open Meetings Law,” Mr. Freeman said, adding that the town’s reference to the aforementioned decision was “misplaced and irrelevant.”

In a follow-up interview on Tuesday, Mr. Grossman, in response to Mr. Freeman’s statement, said he now agreed: “I don’t believe that that case is applicable at all.”

Similar zoning boards on the East End handle decision-making differently.

On Tuesday, East Hampton Village ZBA Deputy Clerk Pam Bennett explained that at each public hearing, the ZBA members deliberate publicly with back-and-forth discussions. Similar to the Southampton Town ZBA, however, Village Attorney Linda Riley drafts a written decision in advance that the board members publicly vote on.

The distinction is that the content is derived from public discussion of the board members at public hearings, rather than public hearing records submitted by the applicant’s attorney.

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Sounds plausible that the board has violated the open meetings law.
By bigfresh (4384), north sea on Dec 6, 18 8:26 AM
How about a quick check of the Zoning Board members passports to see if any visited the Dominican Republic recently to pick up a bag of cash?
By dfree (743), hampton bays on Dec 6, 18 8:57 AM
"He went on to define deliberations as the “back-and-forth discussion” between board members, and quoted the Open Meetings Law’s legislative declaration, which spells out the importance of the law: “It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations ...more
By North Sea Citizen (540), North Sea on Dec 6, 18 9:32 AM
Oh, so that's why a decision of such magnitude was assigned to a zoning appeals board. Greed is crafty, clever, inventive, innovative, and contagious.
By MikeMirino (7), east quogue on Dec 6, 18 10:05 AM
2 members liked this comment
The most appalling element of the ZBA process is that it excludes debate by the ZBA members and consideration of the public input. The ZBA attorney merely seeks a "yes" or "no" vote from the ZBA board member, letting the ZBA attorney
invent or infer a reason or reasons for the decision. So much for due process and good government.

Richard Amper, executive director, Long Island Pine Barrens Society
By Richard Amper (1), Riverhead on Dec 6, 18 12:16 PM
Looks like people have been reading Joe Shaw’s editorial in The Press last week. Point taken, Joe — the Open Meetings Law may call current ZBA procedure into serious question. This round goes to the opposition (the guys in the white hats).
By Turkey Bridge (1949), Quiogue on Dec 6, 18 2:36 PM
2 members liked this comment
Everything done in Town Hall should be done above board and in public with documented records made and available for review.

Why is it that the article here focuses only on the ZBA and not the Town Board; are they in some way exempt? Who gets to decide what is appropriate for executive session and does any agency review such sessions?

Would not the same Open Meetings Law have required Schiavoni and Lofstad to explain their positions in public when the Town Board passed judgement ...more
By VOS (1200), WHB on Dec 6, 18 3:21 PM
... you oughta' go to the videotape on this one cause you are way outta' whack. Bouvier (not Schiavoni) and Lofstad each read detailed prepared statements as to why they voted "no". Bouvier's was 25 minutes long and Lofstad's was 15 minutes.

That's forty minutes longer than the ZBA deliberated and debated this whole issue in public.
By William Rodney (544), southampton on Dec 6, 18 4:39 PM
You, and Mr. Crab, below, are of course correct in that it was Mr. Bouvier rather than Mr. Schiavoni who joined with Ms. Lofstad in voting down the PDD proposal; for that error, I apologize.

In reviewing online reports of that meeting a year ago in which the decision was made, I find no indication of exactly how long either spoke but was relying on memory which may have been a bit faulty, as it was in identifying one of the key players.

Regardless of how long either spoke, it ...more
By VOS (1200), WHB on Dec 7, 18 3:25 AM
...I "spew" nothing of the sort. Could not care less. Think before you write.
By William Rodney (544), southampton on Dec 7, 18 7:26 AM
I do apologize, Mr. Rodney; the comment about spewing should have been directed at Mr. Fresh. I endeavor to be precise - I'll blame it on the early winter and the late hour.
By VOS (1200), WHB on Dec 7, 18 3:57 PM
In your continued enthusiasm to see this ill thought out project approved - it appears you are no longer even attempting to get your facts straight.

Tommy John was not on the Board when the PDD was defeated. He was elected to the Board after the vote. He made his opposition to the project known before the election.

John Bouvier and Julie Lofstad presented lengthy, reasoned explanations for their NO votes. The other board members explained the reasoning behind their ...more
By FiddlerCrab (96), Westhampton Beach on Dec 6, 18 4:35 PM
He's still on the payroll and has to earn his keep, hence his comments any time Discovery and their project crops up here.
By bigfresh (4384), north sea on Dec 6, 18 4:45 PM
The ZBA has operated in this fashion since it's inception. If a judge were to overturn this decision based on an Open Meetings Law violation every decision this Board has ever made could theoretically be overturned.
By cmac (179), East Quogue on Dec 6, 18 6:54 PM
Theoretically - if they were ignoring proper procedure - a change is necessary.

Regardless of the cost.

Future generations will thank us.

By FiddlerCrab (96), Westhampton Beach on Dec 6, 18 7:21 PM
1 member liked this comment
And the war rages on.....
By Taz (638), East Quogue on Dec 7, 18 10:22 AM
Have you completely given up on even the appearance of presenting the truth?

Your statement:
“Regardless of how long either spoke, it is still apparent that having voted to accept the findings statement there is a great inconsistency in their then voting to deny the application for the PDD. Their lack of explanation of how they could produce such contradictory opinions in such a short time demanded explanation, of which none was forthcoming. “

The facts ...more
By FiddlerCrab (96), Westhampton Beach on Dec 7, 18 11:05 AM
The facts are that regardless of what Bouvier and Lofstad may have stated of their intentions in September the vote on accepting the Findings Statement took place at the same December meeting that the PDD was voted on. Once that Statement was accepted by the Town Board it became part of the body of evidence upon which the Board members were to rely for facts in considering the PDD, regardless of their unfounded personal opinions.

For two Board members to ignore the scientific evidence ...more
By VOS (1200), WHB on Dec 8, 18 2:56 AM
The findings statement is not binding.
By adlkjd923ilifmac.aladfksdurwp (690), southampton on Dec 8, 18 6:54 AM
1 member liked this comment
VOS - One more time:

Bouvier and Lofstad voted against the findings statement for scientific reasons which they explained in lengthy detailed dissertations. As opposed to what the ZBA posse (led by their attorney) did.

The Board majority passed the findings statement for whatever reasons they thought it should be passed. I won't hypothecate on why, here.

The PDD was defeated because it required a super majority. It required a supermajority because a referendum in which ...more
By FiddlerCrab (96), Westhampton Beach on Dec 8, 18 12:16 PM
Any Board member was free to vote their conscience on this disaster in the making , despite your employer's threat of a lawsuit. Standing up to a bully is laudable.
By bigfresh (4384), north sea on Dec 8, 18 12:41 PM
1 member liked this comment
One more time:

The environmental impact statement contained science; the Findings Statement consolidated that into a single document; two board members denied the science in favor of groundless fantasies of doom foisted upon them by politicians.

The question of whether the Findings Statement is legally binding is one of the things that will be determined by the lawsuit filed by Discovery against the Town, among other things.

I see the children are still accessing their ...more
By VOS (1200), WHB on Dec 8, 18 2:12 PM
so it is your employer's assertion that the Town Board was legally bound to vote in favor of the disaster in the making VOS?
By bigfresh (4384), north sea on Dec 8, 18 2:59 PM
exactly - the findings statement contained some scientific findings about the project but is not able to contain all potential scientific, economic, or legal possibilities. ... the findings statement is a narrow document.
By adlkjd923ilifmac.aladfksdurwp (690), southampton on Dec 9, 18 7:31 PM
VOS:"In such a short time?"R U kidding?4 years of discussions and hearings? U have no credibility.
By Taz (638), East Quogue on Dec 7, 18 11:15 AM
If you watch the public hearings there was plenty of open discussion. The ZBA members listened to testimony and asked questions when something wasn't clear. The attorney drafted a decision and after reviewing all of the evidence members voted yes or no on that decision. They aren't required by law to give a reason for their vote.

"Mr. Freeman noted that emails between the ZBA members and the attorney are not considered to be deliberations and are not subject to public review, due to the ...more
By cmac (179), East Quogue on Dec 9, 18 8:42 AM
Why is it that these other similar boards mentioned in the article all have public discussion among their members of the questions before them, they all have give-and-take out in the open, but the Southampton Town ZBA does not. Why is that? Whatever the reason, it looks very much like a violation of the Sunshine Law, which is there to prevent just this sort of back-room dealing.
By Turkey Bridge (1949), Quiogue on Dec 10, 18 1:26 PM
It is time to open the curtains on the ZBA. I think they are all lawyers, I’ve been told they get $500 per meeting plus free medical benefits. Who selects the members and do they have set terms? Lifetime appointments?

My one experience was sobering and troubling. The applicant’s lawyers were allowed to flash some pictures of large homes but I was told to produce empirical proof that a variance would change the character of our community.

I did with Excel spread ...more
By TheTurtle (143), Southampton on Dec 10, 18 6:06 PM
8k run & 3 mile walk, Agawam Park, Southampton Rotary Club fundraiser