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On Peekskill and the Methadone Clinic

a few facts from the public record

First, a disclosure: My wife, Ruth Wells, is a member of the Planning Commission.  I’ve held off writing about this issue until the commission completed its work.

Peekskill’s mayor, Mary Foster, has made a case to the press that the Planning Commission should not have approved a methadone clinic at Corporate Drive because such a use does not conform to current zoning.  It is true that she has found a lawyer, Robert A. Spolzino of Wilson, Elser, Moskowitz, Edelman, & Dicker LLP, who holds that opinion.  What is also true, but left unsaid by any elected official, is that not one, but two successive corporation counsels for the City of Peekskill independently arrived at the opposite conclusion.  This is no simple, open-and-shut case.

Renaissance Project, a non-profit corporation, first appeared before the Planning Commission on 15 February 2012.  The Planning Commission on that date held what they were told by staff was a duly noticed public hearing.  Corporation counsel Bernis Nelson “noted that the Zoning Ordinance did not differentiate between a business office and a clinic.”  No objections were raised by the public or by our city’s elected officials. The public hearing was then closed.  Although city planning staff recommended approval based on the opinions of the chief building inspector and corporation counsel Bernis Nelson, the commission withheld approval and required better, more specific plans for parking, exterior lighting, landscaping, refuse disposal, and security and a legally binding easement for public access to Peekskill Hollow Brook, which runs behind the property.  Renaissance appeared at public meetings of the commission on 8 May and 12 June to present responses to the commission’s requirements, and only when the commissioners were satisfied did they approve the project.

The public hearing was not, however, fully noticed.  All legal requirements for notification within the City of Peekskill were fulfilled, as were all requirements that notice be published in local papers (“Journal News” and “Pluma Libra”).  However, the requirement in NYS municipal law that notice of public hearings on development within 500 feet of a border be sent directly to the neighboring municipal government had been overlooked.  That voided the approval, but did not otherwise change the relevant facts or law.  Renaissance reapplied for site plan approval.

In the meantime, Ms. Nelson resigned her post as corporation counsel.  An interim corporation counsel, Mark W. Blanchard, was appointed pending a proper search.  Mr. Blanchard, who as of this writing is still serving, reviewed the history of the application and informed the commission that he concurred with Ms. Nelson’s opinion that the proposed clinic is an as of right use.

The members of the Planning Commission and Peekskill’s elected officials have been accused publicly of some sort of conspiracy and/or of being on the take.  Lord knows what some folks are saying about them in private.  Meanwhile, our elected officials have taken great pains to separate themselves from their own Planning Commission appointees and their own corporation counsels.  It’s all pretty depressing.

As I imagine the mayor’s lawyer would agree, the Planning Commission had no alternative but to re-approve the clinic.  The commission approved the clinic after the city’s lawyers told them it was an “as of right use,” meaning the zoning code permitted it and therefore denying approval would be a violation of their duty to base their decisions on the law.  Had they rejected it, Renaissance would sue, and they would likely win not only actual damages against the city but also punitive damages under the Americans with Disabilities Act.  Planning Commission members can be personally liable for punitive damages, which can be awarded against city officers who act outside the limits of their authority or in contravention of the law, and against which the city does not indemnify them.

I have no doubt that, along with those who attended the public hearing, signed a petition, or just commented anonymously on this website, the members of the Planning Commission would be very happy if the clinic could stay at Hudson Valley Health Center, but their vice president, Bill Dauster, has made it very clear that staying is not a possibility.   

The members of the Planning Commission, citizen volunteers who may well be your friends and neighbors, have done their duty.  The mayor has begun to do hers.  There are two legal opinions at issue, one from two successive Peekskill corporation counsels and another from the mayor’s lawyer: opinions that are directly opposed.   I am hoping that the mayor, having rejected the advice of the city’s own in-house lawyers and sought opposing advice from an outside lawyer, will now take this disagreement to the appropriate forum in which to seek clarity: the courts.

It seems to me that Mayor Foster’s duty is to resist the ignorance and calm the fears that have been all too much on display.  Acknowledging that the Planning Commission was bound by successive opinions from two competent corporation counsels would be a start.  Seeking a decision of the court regarding which opinion, that of the city’s lawyers or that of the mayor’s outside counsel, is correct will provide a definitive answer that settles this once and for all.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Tina Bongar October 15, 2012 at 02:27 PM
Hi Jim, I'm certainly glad that you wrote this column because I really wanted to hear your perspective on this. I wanted to tell you my perspective as a member of the public, and I hope, an active and committed community member, that is, someone who doesn't want to simply complain about the way things are but get involved and change them -- which sometimes means the legal process and structure. This is certainly what I respect about you, and putting yourself and your opinion out in the open, public discourse with your columns. This is what happened from my perspective: I learned about the Methadone Clinic from a friend who happened to be attending a Planning Commission meeting because of her commitment to encourage downtown business development and support a new developer. I thought she was over-reacting and that no one in their right mind would consider putting a Methadone Clinic near the new Skate Park, whose owners I really encouraged to bring their business to Peekskill! (We had worked together at a gig at SUNY Purchase in years past.) This friend said, "and no one mentioned the name of the business and that it was a methadone clinic during the entire meeting." This is due to the lack of press coverage I believe (sorry Patch, Daily Peekskill, LoHud, whose editors I even wrote an email to asking for more coverage). What's very depressing is that even our ELECTED OFFICIALS say they didn't know about this clinic, which makes the public think they are lying or uninformed.
Tina Bongar October 15, 2012 at 02:42 PM
Okay, I'll choose the latter because I want to acknowledge the Mayor and Council's follow-up actions: hiring an attorney who is analyzing the Zoning Codes (ah-ha, constructive change is afloat!). I had wanted to go to the Public Comment portion of the Planning Commission but I couldn't, and I wish I had read the FOIL of the long form EAF. Jim, I'd really like to know what you think of the EAF prepared by the City. This is what I believe should be challenged although I know how difficult it is to have these overturned. I did write Anthony Ruggiero about these issues but have not heard back. My first issue is that the Determination of Significance by the P.C. should be reversed to Positive (and our City Planning Department should get some DEC maps!!!) Next:
Tina Bongar October 15, 2012 at 02:49 PM
Here are my questions about the EAF: 13. Is the project site used presently by the community or neighborhood as an open space or recreation area? CITY: YES," easement for pathway along an adjacent brook." Why is there no mention of the Skate Park, recreational use, right next to the piece of property? This oversight creates a falsehood, the clinic is incompatible with "community character" of Corporate Drive. 15. B> Streams within or contiguous to the project area: Peekskill Hollow Brook FALSE, see DEC maps. a. The tributary is Annsville Creek NOT the Hudson River. 16. Why isn't Annsville Creek listed and this has sections of wetlands, according to DEC maps? AND, to this point!!, 19. is checked Yes~! If 19. is checked (Where is disposal of medical waste noted? Don't know if that's a factor of environmental impact -- it should be...) (C.1. & C.4. Isn't there a Zoning change required? No Special use permit? How could a Clinic be considered a General Industrial use when there is MEDICAL WASTE DISPOSAL ?) 6. What did the developers cite as "consistent with the recommended uses in adopted local land use plans"? Obviously not the Skate Park. 8. Change finding: No, it is not compatible -- there's only one correlation that I know of, the Veterinary offices. Next:
Tina Bongar October 15, 2012 at 02:51 PM
Finally, and this is where the City should hire an attorney because here is where our City personnel, City boards AND elected officials need to be accountable in looking at any project: 11. Change finding: Will the proposed action create a demand of any community provided services? YES, Chief Tumulo's response that it would (wasn't this published in The Patch? ) SO THIS IS FALSE 11.a. With the proposed cuts of the 2012 City budget to Police personnel, I don't believe the City has the capacity to handle the increased incidence of public health issues, drugs, and early morning traffic, based what the Chief of Police says will be the impact of this 12. Traffic-- WHAT??? Are the patients going to walk? How are they getting there? How many patients per day will they serve? How will there will be no impact with cars?
Tina Bongar October 15, 2012 at 03:04 PM
Finally Jim, I very much respect Ruth's work for the community and position on this Board. I feel though, that the Corporation Counsel should have asked Ruth to recuse herself from this project because of her position on the C.H.O.P. Board. This is because the owner of the building where the Jan Peek has an economic interest in property that was sold to the Renaissance Project developers. I make this assertion based on my own reading of the General Municipal Code Chapter 18 and discussion with an attorney about the spirit of this law. A municipal employee and board appointee should always "avoid THE APPEARANCE of a conflict of interest" -- this is written, I was advised, because there doesn't need to be an proof presented, as the burden of proof would complicate what the spirit of the duty of service should be. Even though I don't believe Ruth had any of her own or C.H.O.P.'s economic interest as the basis of her decision, I feel that she should have avoided the appearance of a conflict of interest and recused herself -- and it should have been the responsibility of our Corporation Counsel to tell her so.
Liz Claire October 15, 2012 at 03:04 PM
You make a false argument, Mr. Knight. Chapter 35 of the City Charter provides for indemnification of those acting within the scope of their duties. And making a Planning or Zoning decision, even if wrong, would be within the scope of their duties. Regarding doing things contrary to the law and indemnification, consider the recent case of Mary Foster and Drew Claxton destroying City documents to cover up their political machinations in trying to kill the Cove project. The Second Circuit recently cited them for gross negligence and bad faith in violating the Local Government Records Law. Are they being held personally liable? No. The City is indemnifying them, as the City would and will indemnify you and your wife. Every legal issue has at least two sides, and very few things in the realm of municipal law are black letter -- other than the purposeful destruction of documents Foster and Claxton engage in. The appearance here is that your wife was voting to allow her charity to move into a bigger place when she should have recused herself. That to most is a bigger violation than her making a fuzzy legal interpretation of whether a clinic is a business office. Past corporation counsels assumed all businesses are equal, and I am certain there is case law that says otherwise.
Mary Jane October 15, 2012 at 03:05 PM
Tina, with the impending sanctions that are coming down the pike thanks to the DMAC/City of Peekskill/WNA Association lawsuit, I really think you're out of order with your statement that the city should hire an attorney. Are you kidding? We HAVE Corporation Counsels by the dozen, and you just arbitarily decide, "Hey hire another one." I know you're aware that the City is about to be slapped with sanctions for failing to produce emails regarding the WNA involvement with the City and Fourmen, so give it a rest already. Opinion is one thing. Creating a legal mess at the expense of the rest of us taxpayers is another. Mr, Knight, your disclosure fails to mention that you sit on the Zoning Board.
Spruce Bringsteen October 15, 2012 at 03:07 PM
…temple janes, rock waldos, gepettos, field rabbis, ghetto gnats, slop bandits, toejammers, hazemakers, Kansas daytrippers, splinter louts, dry Dorises, bark doctors, duke wellingtons, harpooneers, luckless Pedros, limelickers, navel gazers, grape otters, Darren boyz, mugambos, nightbenders, backdoor Brahmins, drip worshippers, trufflehunters, ozone climbers, dead roys, Algerian pontiffs, hosers, haytillers, earth guppies, Ralph munchers, Uncle Remos, knackers, plunge dolphins, iodine fixers, hoisters, gunk clerks, alfonsos, mold growers, Aztec bean pumpers and trolley jumpers. Meet the new patrons of: MADAME MARY’S METHADONE MOTEL Hourly rates available Complimentary donut at breakfast
Liz Claire October 15, 2012 at 03:08 PM
For the decision in Fourman v. Peekskill, go to the Southern District Website and search for Case 7:09-cv-05093-GAY Document 83 Filed 09/17/12. Read all the documents related to the case.
Tina Bongar October 15, 2012 at 03:10 PM
Finally, what I really respect, is that over 1000 people have signed Wendy Kelly's petition to put pressure on the Mayor and Council to represent their interests. For me, and I believe a lot of people who signed this petition, is not about the Methadone Clinic in Peekskill either. It's about the proper placement of this Clinic, which would be in those empty medical offices across the street from the Hospital. This seems to me to be the best place for the addicts and patients that the Clinic will serve. I feel it's a great sign that the Mayor and Council had the guts to oppose their own appointees and do what a majority of Peekskill residents want and hire an attorney. This is what makes our democracy and system of government great.
Wendy Kelly October 15, 2012 at 03:19 PM
Couldn't have said it better Tina. Honorable Foster and the majority of the public and personnel at HVHC continue to agree on that point. Yes, the Methadone Clinic needs to stay in a hospital environment where emergency medical trained personal are readily available. If it ain't broke don't fix it!
Ded Yorick October 15, 2012 at 03:44 PM
"Get Meth. It Pays." - Foster's new ad campaign. Where's Burnis?
Wendy Kelly October 15, 2012 at 05:40 PM
Mr. Knight: Please don't forget Mr. Robert A. Spolzino, is a prominant Land Use Attorney. Atty.http://www.wilsonelser.com/attorneys/robert_a_spolzino I certainly don't think our Peekskill "interim" Atty has any such credential under his belt.
leesther brown October 15, 2012 at 05:54 PM
@Liz, why go through all that let's ask Tina, She and Knight are responsible for the law suit to begin with along with Claxton/Foster and Bennett.....#igotthelostemails
Tina Bongar October 15, 2012 at 06:16 PM
Hi LeeEsther and "Mary Jane" -- please take a look at the reference that Liz Claire sends you to for the public court documents -- especially why the case was filed in the first place. The DMAC/Fourmen case is about the City of Peekskill not allowing a developer to get away with breaking the law, no matter the expensive lawyers he needs to hire to make some of his bully money back. I didn't cause the lawsuit dear ones, I don't have that kind of power -- the only power I display that seems to drive everyone to attack me is that I discuss these issues with my neighbors and support them when they want to challenge the developers and the City administration. Please, I will certainly listen to you and your recommendations for my behavior if I felt that I agreed with the principle of what you're saying. So please, do us all a favor and speak in principles and actionable behavior and even the law, then maybe I'll even do what you want me to do!
leesther brown October 15, 2012 at 06:37 PM
Tina is that a promise?!!!....Cause I have several emails from you concerning the Cove and it shows how Claxton encouraged you'll(WNA/Jim Knight) to keep the heat on! I also have you're response to a certain email that stated "It's time for a bon-fire" and you responding that it wasn't about the home that caught fire two days later but he was talking about the Cove...#youneedhelppacking?
Leslie Lawler October 15, 2012 at 07:24 PM
I have seen many of the emails that went back and forth amongst WNA members and Council members regarding the issues and statements Lee is referring to, and they are eye-opening and disturbing. I was publicly opposed to taxpayer funds that paid for a consultant to do a subseqquent zoning study on the west side, even after the city staff completed one. Despite both studies being in agreement for R-3/R-4, it still amazes me that Mary & Council granted single family zoning (with a wink). Is it any wonder why the Fourmen lawsuit mentions "political favor?" This city is on the verge of financial disaster, thank you very much Council for mindless spending such as this, and to hire another lawyer to go after the Planning Board, when anyone with half a brain knows Foster was in the know on this every of the step of the way, is completely negligent. The city is drowning in legal messes because of impulsive and fiscally irresponsible decisions.....Fourmen, Deskovic, now the pawn shops are suing...enough of the BS already.
Patty Villanova October 16, 2012 at 12:14 AM
Here's a shout out to all of you posting your comments on every side of this and other Peekskill issues- Bravo! Regardless of my own feelings, I salute everyone who is taking the time out of their busy, hectic lives to actually sit at a computer and write something and to take a stand. Trust me- the politicos out there are reading and watching even though most of them (like Klaxton) claim that they never read the Patch or other online media. If you want to see what happens when nobody cares what's going on in their community- look no further than your neighbor to the north, Put Valley where we are in a Dark Age Dictatorship. We have no real news coverage and I only wish that the new Patch editor could find it in his heart to start reporting on my town to see if we could stir up the sheeple from their slumber. Peekskill Patchers- keep up the great work. Never give up your passion. You all can and will make a difference. Don't ever forget - "for evil to prevail, all that's necessary is for good men to remain silent and do nothing."
shakemdown October 16, 2012 at 05:13 AM
i second that motion
Tina Bongar October 16, 2012 at 03:40 PM
Leslie, Very respectfully, $5000 for a consultant is not frivolous, after a developer hit adjoining properties, each with a $50,000 property value decrease because of his ill-advised project (by the Planning Commission) -- the homeowners next to "Corporate Drive" and the Methadone clinic will probably see a greater hit, and therefore ALL OF US will. FYI, when you cite these hired consultants, the City gave them outdated, faulty zoning information on which to make their "analysis." Excessive spending (on Charettes that lead to nowhere like the Cultural Tourism and Retail Study) is not and what's wrong here: what's wrong is that the City Planning and Development Dept, hired these consultants and essentially told them what they wanted the report to say -- according to the consultants (of course this according to City employees "corruptocrats", to borrow from Patty's vocab, who have gone on to exploit wealthier River Towns). FYI, Lee Esther is citing emails that aren't in "the public domain" so obviously your friend is getting some information from her friends at Fourmen (at least I hope Lee Esther is getting paid by Fourmen to disseminate this information). That you think letters, emails, to public elected officials is somehow "partisan" is disturbing -- what other recourse do we have, other than voting, to say what happens with our tax money!!! Especially when it hits residents property values!!! This whole "reading" of neighbors protest letters...
Tina Bongar October 16, 2012 at 03:51 PM
... is partisan in itself. How come no one has brought up the incredibly thoughtful deliberate emails that I received from Cathy Pisani about changing the City's frontage laws? Yes, I (formally) was a registered Democrat who voted for her, and wrote her, because I really felt she wasn't basing her decisions on any quasi social or financial relationships with other business people and/or GOP-ers. More so, I think she -- like Drew Claxton when she isn't bowing to her arrogant party -- makes decisions on what she perceives the Peekskill MAJORITY wants. (Now I completely disagree with her judgement on what this is sometimes but that doesn't distract from my core feeling that they both are trying to represent a majority consensus.) I just don't understand how this makes me partisan, which apparently it does to the Dem's, and I guess the GOP-ers, who suspect me as a "spy." Lee Esther's Fourmen/DMAC employers think I'm a spy -- no I was just questioned by higher law enforcement officials than the Peekskill Police. I'm so sick of this no-sense partisan calling. Okay, so who is going to represent the interests of the homeowners of Peekskill and adjacent to Corporate Drive who have invested money and soul in a better vision of Peekskill? In standing up to the Planning Commission, I'd feel best if it was a sharp land-use attorney who could take apart the joke of a EAF and demand a DEIS, like Linda Puglisi is asking for.
Leslie Lawler October 16, 2012 at 04:21 PM
Tina, ditto on the respectfully, but as Patty Villanova has pointed out numerous times and of which I concur, spending on consultants when we have city staff capable of performing the same functions - and in this case the Planning Department conducted the study ,but did not provide the result wanted, is frivolous and wasteful. I know it's personal because it's your backyard, but it's still frivolous. The study was already conducted but the result was not what you and your neighborhood wanted. The consultant was brought in, and even in their professional opinion, they did couldn't render the single-family zoning recommendation you(pl) wanted. So Mary gave the WNA their wish. The city gave them "outdated" info? Tina, leave this alone in the public forum because you know that's not true. I'd also take caution throwing around statements that you hope people are getting paid by Fourmen.
Warwick Deeping, Borzoi October 16, 2012 at 04:34 PM
The best spy novelists were John le Carre, Len Deighton and Eric Ambler, all of whom, needless to say, were Borzois. Un livre du chien est un bon livre. Le chien qui fume dans Paris a tres bon fromage.
leesther brown October 16, 2012 at 04:46 PM
First Off "Chica" that's LEESTHER... I don't know anyone from Fourmen Construction the one person I met was in relation to the Gateway Project,and he has since passed away so you need to be careful with that slanderous ish you putting out there and as far as you being questioned by higher law enforcement you too initiated that action along with certain elected officials who encouraged it(remember Dave Greener?) got those emails too...I too pay taxes and am just as much concerned with what direction this City that I Love is going in and from the looks of it we have hit a ditch....Check yourself before you wreck yourself....There is so much more..If you ever wonder how an outsider knows all your dirt look at the who's on the inside....
Tina Bongar October 17, 2012 at 01:54 AM
Um, "Chica" "Leesther" -- do you really believe I have a relationship to a "suspicious fire" in my neighborhood, I believe you implied this, but do you really believe this -- or is this a bullying tactic? Oh wait, I need to be cautious here...
leesther brown October 17, 2012 at 02:39 AM
Go head with those tired misleading words!..their real purpose being not to illuminate but to evade...#mendacityevasionignorance
shakemdown October 17, 2012 at 05:11 AM
TINA BONGAR, let me first set you straight, I am no-ones puppet, i am a man who has lived in this city longer then most of the city council (50) years to be exact and i will not let you or anyone else try to silence me. the reason that i made the ( i second that motion ) remark was because JIM Knight and RUTH WELL both sit on the planning board, and they should of recused themselves from the METH CLINIC issue so that it wouldn't look like they were trying to pull the wool over the heads of the people of this city.and no i'm not one of those people who sit behind the computer screen and write stuff and not know what i'm talking about. in fact if it wasn't for my injury i too would be at the council meetings raising hell . IT'S TIME FOR MARY AND CREW TO GO. and if you really want to know who i am, i can sit with you in person, i'm not scare of a little discussion, BUT I MUST TELL YOU, LEESTHER BROWN IS MY FRIEND
leesther brown October 18, 2012 at 02:35 PM
Shakemdown....She don't know herself nothing!....My moms always said..."Dog Bring A Bone....Dog Carry A Bone"...
Jim Knight October 18, 2012 at 10:35 PM
Hi skakemdown, In fact, I do not sit on the Planning Commission. Not only would the city be foolish to allow a married couple to both sit on the same board, a married couple would be absolutely nuts to want to be in that situation. The methadone clinic has never been, and most likely will never be, before the Zoning Board of Appeals (please check out my August post explaining the narrowly defined responsibilities of the ZBA). In the unlikely event it ever does, I will recuse myself, as I have done in the past when an issue I have publicly spoken out about later comes before the ZBA. Jim Knight
shakemdown October 19, 2012 at 04:03 AM
MR. KNIGHT i did not mean to say that you were on the board yourself and for that i'm sorry, as far as the city being foolish to allow a married couple to sit on the same board, the city wouldn't be that foolish but the current mayor and crew would try it if they knew that they could get away with it. the city is not the one doing the foolish and illegal stuff. THE MAYOR AND HER CREW ARE

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