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.