BERNE —  Following a court decision that nullified the Berne Town Board’s decision to appoint Thomas Spargo, a convicted felon, as chairman of the town’s planning board, the town board now wants to expand the planning board from five members to seven, which would clear the way for reappointing Spargo.

At its regular meeting on April 15, held through a video conference, the town board scheduled a public hearing for April 22 — since pushed to April 29 — as required by state law to change the number of planning board members.

Councilman Mathew Harris, who serves as liaison to the planning board, says that the expansion from five to seven members “recognizes that leadership is not confined to a few elected officials. Rather, successful leadership requires mobilizing the knowledge, talents, and perspectives of every segment of our community.”

The decision to expand has drawn criticism from members of the planning board, who have called it a political maneuver to install Berne resident and former New York State Supreme Court Justice Spargo to the board. 

“At a time when fiscal responsibility and a deadly health crisis should trump politics,” planning board member Emily Vincent, a sheep farmer and a nurse, told The Enterprise, “the board is focused solely on placing Spargo, a convicted felon, back on the board.”

On Jan. 1, the Berne Town Board had voted to demote Emily Vincent, a full member of the planning board, to alternate status, which made room for Spargo’s appointment. Spargo was not only appointed to the board, he was made its chairman, despite the planning board’s recommendation to Supervisor Sean Lyons to name planning board member Todd Schwendeman to the position. 

Spargo’s appointment was controversial for this reason, as well as because of his 2009 conviction for bribery and extortion after taking money from lawyers with cases before him, for which he was sentenced to 27 months in prison. 

The Enterprise reported on Jan. 1 that the demotion of Vincent was in violation of state law and editorialized on the subject on Jan. 9.

All members of the planning board, excluding Spargo, signed a letter in February written by member Lawrence Zimmerman that defended Vincent and labeled the town board’s vote “illegal, arbitrary, and capricious.”

Vincent filed an Article 78 proceeding against the town board, arguing that it had violated New York State Town Law by removing her from a position without cause. On March 13, New York State Supreme Court Justice Denise A. Hartman ruled in Vincent’s favor; the supreme court is the lowest level in New York State’s three-tiered judicial system.

When asked about the timing of the decision to pursue an increase in planning board members, Lyons told The Enterprise that the idea was first brought up after Vincent’s filing but before the court’s ruling. 

“I will state that while I did vote with confidence in the board majority’s decision to create a local law to increase membership to 7 members,” Lyons told The Enterprise in an email, “it was not my first choice in regard to answering the judgment, I wanted to begin the appeals process as I did not/do not agree with the court’s ruling.”

Lyons said that he felt the original decision to demote Vincent was practical in nature, and highlighted Vincent’s attendance record in 2019. 

Vincent missed five planning board meetings that year, but she said those absences resulted from a brain tumor that had been diagnosed in the summer and that the planning board chairman at the time was made aware of her circumstances. Four of Vincent’s absences occurred after May. She underwent brain surgery on Jan. 22.

“[The town board] looked at planning board members’ attendance for 2019 and planning board member Vincent’s attendance record in 2019 was the factor in making the decision to move the member to alternate status,” Lyons wrote in his email. “At the time we had no information regarding any health issues with any planning board member, nor knowledge of any requested time off for health related issues for any planning board members.” 

Judge Hartman’s decision did not turn on absenteeism but rather was based on the law requiring a hearing and cause for Vincent to have been demoted.

Liaison view

In a statement that is printed in its entirety as a letter to the Enterprise editor, Councilman Harris portrays the drive to increase the number of members as one that would allow the planning board to operate expertly and intimately for the benefit of the town.

“Before the coronavirus presented challenges to our town,” Harris wrote, “the town board had begun to identify and prioritize the incumbent and emerging issues facing our municipality. Many legacy, unfulfilled issues such as municipal water, hydrofracking, municipal parks and recreation, industrial land use, and commercial business to name a few have made the list.”

Listing also industrial solar, wind, and “other ‘green’ mandates as part of the governor’s energy plan,” along with telecommunications, Harris said that the two things all those issues have in common are that “they must be planned or planned for, and they must be in harmony with the values and character of the town of Berne.” 

Harris then goes on to describe the town’s current comprehensive plan, adopted in 2017, as antiquated, and said that the process of updating it is incumbent upon the town board. 

“I would anticipate an updated document ready for public review and comment to be presented not later than one year from today,” Harris writes. “Some of the issues I have mentioned will take years, and all will require the intimate attention of a planning board composed of highly motivated members focused on bringing these and all of the other issues to successful completion.

“The formation of a water district,” he goes on, “and the development and operation of a reservoir alone will involve county, state, and federal oversight. Other long-term issues such as the zoning and use cases for the town’s municipal lands and park areas, must be constantly reviewed to provide for the widest possible variety of opportunities for recreation and the enjoyment of our residents.”

Harris concludes, “In the coming days, the town will be holding a public hearing on this draft. The requirements that we must follow to accomplish this will require everyone’s patience, but I am looking forward to your comments and participation.” 

Planning board view

While Harris’s statement touts the expansion of the planning board as necessary in the face of its workload, planning board members Emily Vincent and Lawrence Zimmerman say the planning board is doing just fine as is. 

In a sardonic and sarcastic letter to the Enterprise editor, Zimmerman indicates that the move is not only tone-deaf to the duties of the present board, but outlandish. 

“Your readers will be surprised to learn that the Town of Berne has become a hotbed of development activity,” Zimmerman writes. “New projects have flooded into the town’s planning board at such a rate and demonstrating such complexity that the town board has finally stepped up to the plate and taken bold action.” 

When The Enterprise followed up and asked how many cases are before the planning board, Zimmerman said, “virtually none.” 

State law allows for a planning board to have either five or seven members. The 18 municipalities in Albany County are about equally divided on the number of planning board members, and the number doesn’t appear to be related to a municipality’s population.

In the Hilltowns — of which Berne is the second most populous at more than 2,700 residents — Knox (with roughly 2,700 residents) and Rensselaerville (with 1,800) each have seven members while Westerlo (with 3,300) has five members.

New Scotland, which has approximately 8,700 residents, has five members on its planning board, as does the city of Albany with a population of roughly 97,000.

In two nearby suburban towns, Bethlehem, with roughly 35,100 residents, has five members on its planning board while Guilderland, with roughly 35,800 residents, has seven members.

The village of Altamont, with about 1,700 residents, has five members on its planning board, while in New Scotland, the village of Voorheesville, with about 2,800 residents has a seven-member planning commission.

“To lead this exciting expansion,” Zimmerman chides, “and to bring these long-awaited development plans into fruition, the town board proposes to name Tom Spargo as chair of the planning board. Mr. Spargo apparently is considered the man for the job having been previously convicted in federal court of extortion and bribery. He served 24 months in federal prison for these crimes, further cementing his qualifications.” 

Emily Vincent was no less inflammatory. 

“The current town board has serious looming problems facing it but wants to spend time playing political games,” Vincent wrote to The Enterprise in a text message, describing issues brought forth by the coronavirus pandemic, such as unemployment, the elderly being isolated, and impending declines in town revenue as sales-tax revenues diminish. 

“Additionally,” continued Vincent, naming GOP-backed board members and the town’s Republican chairman, “I feel that Spargo, [Councilman Dennis] Palow, [Councilwoman Bonnie] Conklin, Harris, and [Highway Superintendent and GOP Chairman Randy] Bashwinger are taking advantage of the fact that most of our residents don’t have access to high speed internet and some even [lack] computers and to force a public hearing at this time is taking advantage of the fact that most residents will not have a voice.

“It makes us question the motives of the Town Board and is a blight on Berne’s reputation,” Vincent concluded. 

Timeliness

Before the town board’s first virtual meeting, Lyons had indicated that the board would deal only with critical issues and leave those that warrant public input for a time when the public can convene in person again. 

This week, though, he told The Enterprise that, given alterations to Open Meetings Law by Governor Andrew Cuomo through executive orders and given the ease with which the public can address the board virtually, that timeliness is no longer as important a consideration. 

“At the time of my statement regarding public hearings,” Lyons wrote in an email, “the risk over reward factor was too great when considering holding meetings that the public had to attend such as in the case with public hearings.

“The Governor,” he continued, “only this past Tuesday issued a new executive order that allows public input (comment) at public hearings to include web based meetings, teleconference and write-ins/emails/comments which will allow greater public participation without compromising distancing or meeting attendance guidelines. When I postponed the meetings on the 8th we did not have this provision nor did the Town have adequate means to engage our public in web based meetings, etc.

“Now we do,” Lyons wrote, “and I feel the public has more than enough avenues to engage in a public hearing therefore prioritizing issues based on time sensitivity is no longer applicable. With all that said, I do think this is time sensitive as the planning board will need to have a Chairman [as soon as possible] and the ability to return to some form of normalcy.” 

At its April 15 meeting, the town board had scheduled the public hearing for April 22, but by Tuesday it had moved the hearing to April 29. 

“We felt that we did not provide enough time to properly inform the public of the public hearing,” Harris told The Enterprise.