Thursday, March 11, 2010

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....


Terence said...

As you well know, Anton, I voted for this special use permit when I was on the board. I have not yet been completely swayed by your letter, but I would like, if I may, to test my opinion against your facts.

If the notice was mailed July 30, is that not five days prior to August 4? Thirty days hath September, April, June, and November. With thirty-one in July, that make July 30 five days prior to August 4. The delays and assurances of completion that you received are, sadly, not at all unusual, and that it raises a red flag for me; I raised a similar issue with the rush to judgment the last time Woodland Pond was on the agenda. If the affidavit of mailing is indeed from July 30 I think your argument about improper service will fail, but I would not presume that this was actually done on July 30 without seeing those stamped affidavits of mailing. I can't imagine why, if they indeed exist, that they were not immediately produced to settle the matter.

I am interested in the science backing up your claims that purifying oxygen without compressing it leaves it in the same flammable state that compressed oxygen is in. Your assertion is inconsistent with the testimony we received, and I'd like very much to know why.

Your arguments regarding the PB's decision representing a de facto variance because tobacco represents noxious fumes seems logical, but are problem novel legal arguments that will only make a difference if you have to take this to court. I don't have any strong opinion about them per se, but I do have an opinion about the process: you will have to go to court. The fact that you have been stonewalled is nothing new, and it will continue unless and until the village board wakes up to the serious problems going on in building and planning.

Brittany Turner said...

I hope they get their hookah and/or oxygen bar. I can't see how the relatively minor amount of air vented from the building will saturate the surrounding area enough to pose the types of hazards you mentioned.

If this is accurate, it is unfortunate that the VPB cut the Public Hearing notice so close. While 5 days is the minimum, more (when feasible) would certainly better serve the public interest. I guess that's why people need to not only be informed but also vigilant.

As for your FOIL request, it isn't surprising that the documents were not provided. Unfortunate, but predictable. The condition of records management in the VONP is BEYOND atrocious and a major factor in my decision to resign as Village Clerk. Legally, there should be an extensive catalog created by the Village Clerk, who would, theoretically, also maintain those documents, fulfilling FOIL requests for any VONP department in a timely manner. Yet VONP record-keeping remains almost entirely non-existant, disorganized, under-staffed and under-funded. Check out the budget - Records Management gets $12 annually. It's no wonder people simply can't get the information they need. Disgraceful.

Anton Stewart said...

Terence: I welcome reasoned debate on this issue and will do my level best to answer your questions as far as I am able.

Firstly, the question of legal notice. Notice of the public hearing was posted in the New Paltz Times on July 30th. I have a copy of the affidavit of publication and a copy of the actual newspaper itself which proves this beyond any reasonable doubt. The planning board meeting at which the public hearing was to be held took place on August 4th. Again this is a matter of public record and is beyond any reasonable doubt.
Section 212-39 B(2) of the VoNP code 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."
The meeting was actually held on the fifth day following publication of the legal notice. This isn't just cutting it fine, it's falling short of the required legal notice - period.
Mayor Dungan, in an attempt to deflect accusations of culpability, has stated that somewhere between four and a half to four and three quarter days is close enough to five not to make any difference and the Chair of the Planning Board, Ray Curran, echoed the exact same sentiment to me personally, even going so far as to mockingly ask "would it really have made a difference if the notice had been published half a day earlier?" - hardly a concerned or conciliatory attitude, in my humble opinion.
Attitudes and excuses aside, there exists substantial legal precedent which establishes a day as a complete 24 hour period and specifically excludes fractions of days.
As regards our FOIL request failing to turn up copies of the letters/envelopes used to send notice to adjoining property owners (which was the established practice for many years), it's not because the records have been misplaced, but rather that they never existed in the first place. These letters were never sent - even though the clerk of the planning board was still giving assurances that they had been mailed even as recently as January 26th this year.
The VoNP administration now accepts that these were not sent but, in a continuation of its unwillingness to accept responsibility for its mistakes, claims now that the notification letters are merely a 'courtesy' and that they are under no legal obligation to provide notification to adjoining property owners.
Whether or not the VoNP administration has set legal precedent by actually routinely mailing out these notices in the past is matter for the courts to decide - but what is certain is that VoNP administration made another error (although they prefer to call it an unfortunate over-sight) that materially affected the attendance of the public hearing and denied concerned parties a voice.
Nonetheless, the VoNP administration still refuses to accept that they have made an administrative error and will not allow the public to make representations to the VPB. This truly is a slap across the face of democracy.

Post too long... more follows...

Anton Stewart said...

I think what angers me most is that the VoNP administration are so arrogant about this and refuse to accept that they have dropped the ball - the Chair of the Planning Board seldom acknowledges correspondence from concerned citizens and has been quite open with me in that he feels that the Planning Board is not accountable to the public. The Mayor, who, as an elected official, has taken an oath to serve the public trust, has told me that there is very little he can do... even though the Mayor, as part of his job function, is responsible for appointing planning board members.
I personally believe there is much our Mayor should be doing here - but, instead he doing his best to sweep things 'under the carpet' by propagating misinformation and generally playing down the gravity of the situation wherever possible.
I'll stop short of outright calling him a liar, but I will say that he is economical with the truth... like neglecting to mention anything about this to The Community Partnership for a Safer New Paltz, an organization with which he is actively involved.
In my opinion (and I've told him this to his face), the Mayor should be taking a far more active leadership role in ensuring his appointees do their jobs properly and mistakes are rectified not ignored. He should be instructing the Planning Board to reopen this issue and allow the public to be heard. If they refuse to do so, he should be asking for their resignation... and if he's unwilling to do this, he should be tendering his own!
Whether you're for or against the hookah bar doesn't really matter here - what matters is whether you're for or against the principles of democracy and government of the people, for the people, by the people.
If you are, then please join with me in crying foul!

As regards the issues of fire safety and emissions, I've done quite a bit or research on these and will be happy to share this with you... but I'm out of time right now and it'll have to wait for a later post.

So, To be continued...

Terence said...

I agree that my opinion on whether or not this town could benefit from a hookah bar isn't relevant here - I had my chance to weigh in on that, and I did.

Your quotes and paraphrases of Messrs Dungan and Curran ring true to me, as they closely conform to my own interactions with both gentlemen.

I would be very interested in seeing some of the legal precedents regarding the amount of notice, because it would not be the first time during my tenure on the Planning Board that I received bad legal advice. Do you know that the previous secretary informed me it would be illegal for me to serve on two planning boards simultaneously, while in fact state law provides for just the opposite? My attempts at getting advice from the planning board's attorney were finally stopped by an email in which she informed me that I would have to funnel my requests through the chairman so she could be sure she'd get paid for the work.

The Chairman ignored as many of my communications as he did yours, Anton, so that avenue for legal redress was closed to me.