Open meetings law violation raised
By Terry Duffy
Monday's regular meeting/final audit session of the Lewiston Town Board saw a fair amount of discussion from residents - far beyond the range of the expected financial matters.
Topping the list was what went on at a recent Town Board executive session about French Landing.
Ellen Correa, a resident of the nearby River Walk subdivision, was among those who raised this issue to departing Supervisor Ron Winkley and Councilman Bill Conrad, and the other Town Board members that night.
Just what went on at that executive session?
"On Monday, Dec. 14, this board adjourned your work session to go into executive session," Correa said. "As part of that closed session, you met with the developer of French Landing and his attorney. It was quoted in the Sentinel ... to 'update the board on the project.'
"I believe this meeting was in violation of New York state open meetings law, which states that closed executive sessions can only be held for certain and specific purposes, including issues of public safety or law enforcement, litigation and some union or personnel issues."
The resident continued, "According to New York state law, updating the board on the French Landing development does not fall under the criteria you are allowed to discuss at a meeting that is closed to the public.
"I am among a group of Lewiston residents that is extremely concerned that the Town Board is negotiating behind closed doors regarding a development that has ramifications for all residents. Why did the update regarding the project need to be held in secret, because the discussion with the developer should have been public."
It was a question Winkley and board members were not necessarily anticipating. Winkley referred the matter to Town of Lewiston Attorney Brian Seaman, who said the discussion involved what he called a "threatened litigation" matter associated with French Landing.
"That particular matter, it was brought to the board's attention ... just prior to the meeting," Seaman said. "There was some threatened litigation, as my understanding of it. It was actually my co-counsel, Mr. (Mark) Davis, who said he's been in contact with an individual who had threatened some litigation. ...
"So the executive session, just so the record is clear on it - nobody from Mr. Wolfgang or Mr. DeCastro, his attorney, was involved in the initial part of that executive session. ... There was some consultation with Mark Davis and the board concerning some threatened litigation."
Seaman continued, "That was consultation with attorneys, outside of the scope of the public officers law. ... It's permissible. There was a very brief period where in an attempt (was made) to settle the matter prior to litigation being instituted."
Seaman added that, "Wolfgang and DeCastro were consulted for "probably less than two to three minutes."
He said the executive session was conducted this way to see if the resolution could be done prior to litigation. And again, Seaman said he didn't feel it was an open meeting violation.
That account didn't appear to satisfy resident Nancy Correa, who again raised the public meetings law conflict and also questioned why a substantial amount of land clearing was going on at French Landing without issuance of a property improvement permit (PIP).
Resident Paulette Glasgow joined in, again telling Winkley and the board "there was no mention of possible litigation."
Conrad defended the board's action on the executive session matter.
"Open government is clumsy sometimes," he said.
Conrad explained that, as part of government negotiations, discussions often take place in unplanned situations. "There were no backdoor negotiations. ... We try to keep things as open we can," he said.
As far as the lack of a PIP issued to clear trees and prepare the lands, Winkley told the residents that none was necessary at the time of the work. He referred the matter to Town of Lewiston Engineer Bob Lannon of Conestoga-Rovers & Associates.
Lannon said that issuance of a PIP covers four components: sanitary sewer, storm sewer, waterlines and paving. "Those four items of infrastructure, which ultimately become the property of the town, are the subject of a PIP," he said.
Lannon explained, that as part of this, several items are required of the applicant (Wolfgang), including a hold harmless agreement, insurance certificates and performance bonds. All have been reviewed by Seaman and submitted to the town.
"Insurance certificates have been provided, the hold harmless has been signed, and the performance bond has been provided," Seaman said.
Lannon said what remains is a handful of administrative items, including submission of engineering plans; water system improvements, which received recent approval from the Niagara County Health Department and are still subject to DEC approval; and sanitary sewer improvements, some of which are also subject to ultimate DEC approval - namely inflow/infiltration concerns to be handled by the developer.
Final concerns involve the submission of fees.
"There are several of them," Lannon said.
Included are recreation fees - $250 per lot times 27 lots; plus an engineering review fee of $1,000, a construction observation deposit of $52,120, a swift compliance inspection fee of $1,150 and a permit application fee of $100.
Lannon said none have been submitted thus far.
"Absent the submission of the fees and the final approval of DEC, we're ready to issue the PIP permit," Lannon said.
As a motion to accept the PIP was presented, Councilman Bill Geiben inquired as to any gray areas remaining. Lannon said there were none.
"(Of) the other areas required, that is (expected) as the project progresses," Lannon said. "There are other items, but to kick it off, this is what's required."
Despite this, at least one resident - Glasgow - did not appear satisfied with the board's, Seaman's or Lannon's explanations over the executive session and French Landing.
"When has a correspondence never been read into the minutes ... as an official record of the meeting?" Glasgow asked. "You do not table a record of the meeting. Correspondence has to be read into the record."
Interestingly, that's just what happened regarding the executive session that followed Monday's board meeting. Deputy Town Clerk Carole Schroeder, on Tuesday, emailed the following, fully accounting for the events from Monday's executive session that followed the board's regular meeting/final audit.
"As per Councilman Bill Geiben, I was asked to listen to the tape of the meeting to clarify executive session issues. He asked that I forward the same to the newspapers," Schroeder wrote.
She revealed on "matters to be discussed" an update on ongoing litigation; consultation with attorneys regarding possible, pending litigation; employment of a particular individual; and a collective bargaining issue.
"This will be noted in the minutes as such," she wrote.