From The Hearings
Around here we've certainly seen our share of public
policy being decided by questionable ways and means, and it's
a subject we end up addressing more than we'd like to.
We think public process is inherently good, but we also think
it needs the protection of being carefully watched.
So today's beef on the ways and means of public process:
the Coalition of Watershed Towns and its new role in the Belleayre
When the CWT filed for a seat at the project's hearings,
the reason it cited was their objections to the comments filed
by the City of New York, and the implications of those comments
for future development in the watershed. That was fine and
appropriate. The resolution they passed said they weren't
taking a position on the project, only that they wanted to
insure the City's input was limited to issues concerning
water quality. That's CWT's job, and over the
years we've encouraged them to serve that kind of oversight
role on behalf of the watershed towns.
OK. So the CWT resolution authorizing them to file was drafted
by their longtime counsel Jeff Baker : Another passed by Middletown
and Shandaken was drafted by his partner Kevin Young who's
long represented Delaware County. At the resort's first
public hearing back in January, various officials from that
county publicly voiced their support for it, though none said
they'd actually read the developer's proposal.
It is of course, a lot to read. Anyway the CWT was joined
in its late filing by Delaware County, the Town of Middletown,
and, after an emergency special meeting, the Town of Shandaken,
whose planning board initially filed to participate, then
dropped out without explanation. Fast forward to last week.
So Baker and Young now speak for Shandaken before the State,
and, through the CWT, they also speak for Olive, Denning,
and Hardenburgh. Of the other Ulster County watershed towns,
Marbletown said no thanks to their offer, and Woodstock's
yet to vote on it. But this is, in essence, what they've
said so far:
On behalf of our residents, we accept the developer's
conclusion that its project will have no significant effect
on the character of our communities. We consider this issue
to require no further consideration by the State, and we formally
oppose its doing so. We also see no reason to consider alternatives
to the project as proposed, such as any change in scale or
reduction in its size. We want it all. "We need
a destination resort."
Well, that's a position. We don't remember any of the town
governments involved voting to say any of those things, but
that's what their representatives have now said for us.
So for the CWT and for Shandaken, the position's shifted from
"we don't want the City looking at these issues"
to "we don't want anyone looking at these issues"
in less than a month. Things do change fast.
So how'd all this happen? How did authority conferred
by a vote to file for party status translate into authority
to take adversarial positions backing a private development
project using public money? We believe this is called The
Old Bait and Switch. To get a seat at the table, you swear
you have no position on a subject. Before the seat's
warmed up, presto, you've got all kinds of positions.
Nah. C'mon, you think. This is the 21st century. A couple
of Albany lawyers couldn't get away with that, could
they? But these guys are good with words and we're
sure they'll come up with an explanation.
If the CWT wants Jeff Baker to represent them to help reign
in the City on regulatory issues and protect our rights under
the MOA, that's fine. Like his former partner Dan Ruzow
who represents Crossroads and Marc Gerstman representing the
Catskill Preservation Coalition, Baker's one of the
best SEQRA attorneys in the state. If Delaware County and
Middletown want Kevin Young to make their case in support
of the developer, that's fine too, even if 85 percent
of the project isn't in that county or that town. But
for Young or Baker to make the case they have thus far on
behalf of the residents of Shandaken, Olive, Denning, or the
rest of the Ulster County watershed, that in our view is deceitful,
because it doesn't reflect positions taken by those
town supervisors or boards, or the people who elected them.
Nobody knows what, if anything, any of this will mean long-term,
and it is an early hand in what's likely to be a long
poker game. The point of the issues conference is to review
the developer's data on its merits, so an impartial
judge can decide which specific issues need to be further
and more fully explored. In general, we think more of that
is better than less, but those are calls the judge will make.
Thus far in the proceedings the City has kept a low profile,
and its role has not turned out to be as meaningful as it
will, no doubt, when issues clearly within the sphere of its
permitting authority come up. Also worth noting is that DEC
staff has sided with the developer on every one of the many
procedural issues that's arisen. Judge Wissler for his
part, has kept the proceedings as open and fair to all sides
as possible, a very positive sign that the process is working
as it's supposed to.
Still, there is the question as to why a party representing
municipal governments is using tax dollars from their citizens
to advocate for a developer seeking permits on behalf of some
of the largest hotel companies in the world. And we think
counsel for those governments owes them an explanation as
to why it's opposing on their behalf the adjudication
of issues like community character, alternatives, or whatever
other subjects they might seek to suppress in the future.
If CWT counsel secures resolutions authorizing the adversarial
positions they've taken from its member towns, then
fine. But we find that prospect improbable for a number of
reasons. Every party at these hearings has first-rate counsel,
and nobody understands the issues of propriety here better.
We think none of them should have to be reminded who they're
supposed to be working for.