When Democracy Fails - What's Next?

Two hundred and thirty four years ago, our fledgling republic was founded on the democratic principles of government of the people, by the people, for the people with liberty and justice for all.

The word 'Democracy' is of Greek origin (dēmos ‘the people’ + -kratia ‘power, rule') and ancient Greece itself was, perhaps, the best known example of a civilization governed by 'direct' or 'pure' democracy - where, quite literally, the country was run by those who chose show up and get involved.

In the United States, like most other democratic societies, a system of 'representative' democracy is employed - where elected officials are charged with the duty of government and entrusted to make decisions in the best interests of the people.

To aid in the administration of government, it is normal for some of these elected representatives to appoint certain executive responsibilities to unelected individuals in the form of cabinets, panels, boards and committees.

Examples of this model can be seen at all levels of government - from the President right down to the local village level.

And it's at the local level of the Village of New Paltz, specifically in the elected office of Mayor and his appointed Planning Board, where I feel that democracy is currently failing.

My concerns center on the approval, by the Village Planning Board, of a special use permit for a Hookah Bar & Oxygen lounge and the plethora of administrative errors surrounding it.

Mistakes will always be made - what matters is that those mistakes are corrected. However, when an administration, rather than acknowledging that errors were made and working to rectify the problem, instead does absolutely nothing to remedy the situation and even goes so far as to suppress information and obfuscate the issue in an attempt to deflect the rising tide of awkward questions and publicity, it's time for this particular Gadfly to cry Foul!

As a citizen and neighbor of the proposed hookah /oxygen bar I will admit to being vehemently opposed to it for a number of reasons. But, for this installment, rather than focus on emotive and subjective issues, I felt I should be objective and deal with the failure of our administration to do its job properly.

Rather than spend a great deal of time re-telling the discussions I've had with various members of the Village administration, allow me to simply quote the most recent letter I sent to Ray Curran, Chair of the Village Planning Board:

Dear Mr Curran,

Thank you so much for the time and courtesy you afforded to me when we met at the close of the Village Planning meeting on Tuesday 16th February.

If you recall, we spoke briefly about the proposed Hookah Bar & Oxygen Lounge at 184 Main St., New Paltz and, although you indicated to me that you felt there was no reason to revisit the granting of a special use permit, you did promise me that you would speak with the building inspector to see if new information has come to light which was not available at the time the board made their determination.

I fully appreciate that the board is under no legal obligation to reconsider this issue at the behest of members of the public, or even acknowledge their concerns, but I do feel that the board arrived at their decision without being aware of several key facts which would undoubtedly have had a bearing on the board's decision had they been aware of them at the time. As such, I implore you to reconsider your position and allow this unfortunate situation to be revisited, thoroughly examined and properly resolved.

I am aware of your concerns that the village may be subject to litigation if you should elect to withdraw or modify a special use permit that has already been granted. However, Section 212-39 B(3) of the Village Code states: "In all cases the Planning Board shall retain continuing jurisdiction" over any special use permit that is granted. As such the board is legally entitled to revisit this issue at any time.

Moreover, it could be reasonably argued that the board is in dereliction of its duty to "protect and promote public health, (and) safety", as detailed in Section 212-2 of the Village Code and § 7-700 of the Village Law, if they fail to review any special use permit which potentially presents a risk to public health as soon as they become aware that such a risk exists.

From careful review of the circumstances surrounding this case and the documentary evidence available, it is apparent that the Planning Board were not in possession of certain key facts at the time they rendered their decision. To wit:

1) The board was unaware that proper notice of the public hearing had not been given. Section 212-39 B(2) states that, "Public notice of said hearing shall be printed in a newspaper of general circulation in the Village at least five days prior to the date thereof." At the time the meeting was held on August 4th, 2009, the board was not made aware that Legal Notice of the meeting had not been published until July 30th, less than five full days prior.

Additionally, the board had no knowledge that legal notice of the meeting was not mailed to the owners of adjoining properties as is the established practice. Even as late as January 26th this year, assurances were still being made by the board's clerk that these notices had indeed been sent out - although a Freedom Of Information Law (FOIL) request made by us failed to produce the required copies of the stamped, addressed envelopes used to send the notices and it is the testimony of all adjoining property owners that no notice was ever received.

Had the board been aware of this fact on the evening of August 4th, 2009, I am certain that, as Chair, you would have moved that the public hearing be postponed and adequate notice given of the rescheduled hearing in order that any public concerns might be properly considered.

It is my opinion that this fact, in isolation, is reason enough for the board to revisit the approval of the special use permit.

2) Having listened to the audio recording of the Planning Board meeting on August 4th, 2009, it is apparent that the board were misled by the applicants as to the significant risk of fire caused by smoking in the presence of an oxygen enriched atmosphere. The applicants led the board to believe that, as there were no oxygen tanks on the premises and the hookahs would be prepared in a part of the building separated by a fire resistant door, there would be no risk of fire. Indeed, members of the board went to great pains to ensure that the special use permit required that the fire resistant door may not be removed from the building as an ongoing condition of the permit.

However, the applicants neglected to inform the board that hookah smoking and oxygen delivery would actually occur within the same room in close proximity of each other.

As a matter of course, smoking is normally strictly prohibited where oxygen is in use. This is not because oxygen is flammable itself, but because it is one of the three requirements for a fire to begin and, as an accelerant, oxygen dramatically increases the speed at which things burn once a fire starts.

The oxygen concentrators which the applicants were proposing to use are still capable of producing 90% to 95% pure oxygen. Even at an output as low as 2 liters per minute, the oxygen delivered will saturate clothing, fabric, hair, beards and anything in the area. Even normally flame-retardant clothing can burn fiercely when the oxygen content is increased - all that is required is a source of ignition, for which the smoldering charcoal/tobacco mixture in a hookah would definitely suffice.

Add to this the fact that the building utilizes propane for heating stored in a 500 gallon above-ground tank (again, not known to the board at the time of the meeting) and the potential for disaster is immense.

As it is now clear that a very real and present danger to public safety may have been inadvertently created by the granting of this special use permit, it is essential that the board suspend or revoke the permit with immediate effect and that the hookah and oxygen bar not be allowed to operate until the board is able to fully satisfy themselves that it poses absolutely no risk to public safety - drawing upon the expertise of a suitably qualified fire prevention officer or the New York State Fire Marshal should it deem necessary.

3) At the time the board approved the special use permit they were not made aware of the nature or quantity of the emissions the proposed hookah bar is likely to produce.

The smoke produced by just one gram of Hookah Tobacco contains levels of the Polycyclic Aromatic Hydrocarbons (PAHs), Phenanthrene, Fluranthracene and Chrysene, far in excess of the recommended maximum exposure level. The typical amount of Shisha (Tobacco Mixture) smoked in a hookah is in the region of 2 ounces (50 grams) and, by its very nature, the proposed hookah bar will have several hookahs in operation simultaneously.

The substances detailed above are known by the US Department of Health & Human Services Agency for Toxic Substances and Disease Registry to be carcinogenic (cancer causing) and their emission by a commercial entity is strictly regulated under New York State Department of Environmental Conservation's (NYSDEC's) Air Permitting and Registration Program.

Although the board did require that the applicants install a filtration system rather than just vent residual smoke from the building into the open air, they were not aware of research, commissioned by both the US Surgeon General and US Center for Disease Control, that has determined there is no ventilation or filtration system currently in existence which can effectively remove these carcinogenic contaminants from secondhand smoke.

As such, by approving a special use permit which allows a business to produce noxious and toxic fumes, the board has, in effect, granted a variance to the applicants, allowing them to operate without compliance to Section 60-3 of the Village Code which states, "The emission from any stack or premises within the Village into the open air of such quantities of dust, soot, cinders, fly ash, noxious acids, fumes or gases so as to cause injury or detriment to persons or to the public, or to endanger the comfort, health or safety of any person or the public or in such manner as to cause injury or damage to business or property is prohibited."

The Village Planning board is not authorized to grant a variance. Therefore the special use permit should be revoked and the matter referred to the Zoning Board of Appeals.

In summary I would just like to add that I have concentrated solely on facts that I believe were not available to the board at the time the permit was approved. I have purposefully not mentioned the emotive issues of the nature of the business itself and the proximity to the New Paltz Middle School although, in hindsight, these really should have been discussed by the board during their deliberations.

I appreciate that the board is under no legal obligation to act upon or even respond to my request, although as Chair of a body authorized and tasked in Section 212-2 of the Village Code "to protect and promote public health, safety, morals, comfort and the general welfare", I believe you have a moral obligation to address this issue.

You are certainly aware that this is not the first time I have written to you regarding this matter, nor I am the only person to have done so. As such I implore you to reconsider your position and allow myself, along with other concerned members of our community, to address the planning board at the next scheduled meeting.

In closing, I must impress upon you the need to act swiftly, as the new owners have been working on the building virtually round the clock in an effort to get open as soon as possible - quite possibly believing that you would be less inclined to revoke their permit and close them down than you would be to prevent them from opening in the first place.

I thank you for your kind attentions to this matter and very much look forward to receiving your prompt reply.

Sincerely yours,

Anton Stewart

To be continued....