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Observers charge wetlands vote illegal

The Planning Board Tuesday night appears to have violated the New York State Open Meetings Law when a glitch impacted what was a hybrid session open to both those who attended in person and those who accessed the meeting virtually.

A critical vote on a controversial wetlands permit application occurred in the first 10 minutes of the meeting, unavailable to those accessing the meeting via Zoom.

When Zoom access started, the meeting was already in progress and it was only in mid-meeting, when attorney Kimberlea Rea asked if the vote had occurred on the wetlands application, that Chairman Ian McDonald said the vote had been taken.

However, he did not identify the results of the vote, although it is presumed the Planning Board voted in favor of the resolution. Assuming he recused himself as he had done during the public hearing on the application because he is an architect involved with the project, the vote would have likely been 3-0. Member Julia Weisenberg, the only Planning Board member who had previously spoken against approval during the public hearing, appeared to not be at Tuesday night’s meeting.

Ms. Rea and Heights Property Owners Corporation General Manager Stella Lagudis said the vote was illegal and should be vacated.

Others called the vote illegal and some charged the lack of access to the Zoom audience was purposeful.

Town Attorney Stephen Kiely said the Planning Board should have been able to tell the Zoom audiene about any discussion that took place and the vote when Ms. Rea had questioned it. Instead, Mr. McDonald just moved on to other agenda items.

In response to an inquiry, Mr. McDonald said he wasn’t in the room since he had to recuse himself from the matter.

He also said the meeting had been advertised as being in person and there was no requirement to accommodate those who chose to access the session virtually.

Planning Board attorney Elizabeth Baldwin said the meeting was being offered virtually as a courtesy, insisting it was not a hybrid meeting. She said the Planning Board had no obligations to its virtual audience.

In a response to an earlier question about providing draft resolutions and  information in advance of a meeting, Ms. Baldwin said the Planning Board doesn’t have to provide materials in advance until they have been adopted. Most boards and committees provide such materials, marked drafts, so the public has an opportunity to offer comments based on facts.

The New York State Open Meetings Law is precise in its requirements about virtual meetings:

“Except in the case of executive sessions, the public body ensures that members of the public body can be heard, seen, and identified while the meeting is being conducted.”

The public body provides that each meeting conducted using videoconferencing is recorded, with such recordings posted or linked on the public website of the public body within five business days following the meeting, the recordings remain so available for a minimum of five years thereafter, and the recordings are transcribed upon request.

“If videoconferencing is used to conduct a meeting, the public body must provide the opportunity for members of the public to view such meeting via video, to participate in proceedings via videoconference in real time where public comment or participation is authorized, and ensure that videoconferencing authorizes the same public participation or testimony as in-person participation or testimony; and

“If implemented lawfully, videoconferencing can be a helpful tool for facilitating public engagement with local decision-making.”

The Town Board passed a resolution on Sept. 7, 2022, supporting hybrid meetings after the COVID-19 pandemic had calmed, motivated by the realization that it provided those unable to monitor meetings in person an opportunity to be involved in their government.

When there have been similar problems on occasion with Town Board sessions, the meetings were stopped to rectify the situation before work proceeded.

While the Planning Board offered no information about the decision made or the reason for the lack of recording, the board clerk, Catherine Ryan, took responsibility for an apparent human error. 

Later in the meeting, in response to a question from Conservation Advisory Council (CAC) Co-Chairman Howard Johansen about another application, Ms. Baldwin said the Planning Board can only act within the limits of its specific application. It can’t seek information from the Zoning Board of Appeals. Ms. Lagudis said that is not the case.

Mr. Johansen said the CAC had voted 6-0 against the application of a client represented by Matt Sherman of Sherman Engineering and Construction. But Mr. McDonald said no information had reached the planners on a vote. If that was the case, Mr. Johansen said, it might have been an error in the reporting of the CAC action. The Planning Board did not agree to consider the CAC vote.

The 7 Chequit application was opposed by the Heights Property Owners Corporation Board and two Heights neighbors Ms. Rea represented who objected to the application.

Ms. Lagudis said the Planning Board showed a lack of knowledge of how to handle wetlands permits.

Ms. Rea said the Planning Board “flouted” the Town Code and New York State Law in its efforts to rubber stamp the 7 Chequit application that will result in “irreparable damage” to the environment. She called it an abysmal violation of due process.