Berne Planning Board may not even exist, says Councilman Harris

The Berne Planning Board meets on Feb. 6, 2020. From left are members Lawrence Zimmerman, Todd Schwendeman, former Chairman Thomas Spargo, and Secretary Cathy Shultes. It was the last meeting for which Spargo was the board’s chairman as well as the last before it was discovered that the board may not actually exist, legally. 

BERNE — During the time in which Berne citizens supposed to once again discuss a widely criticized law that would expand the number of the town’s planning board members from 5 to 7, Councilman Mathew Harris dropped a bombshell: The town may not even have a planning board to begin with. 

The board has met and issued decisions for nearly half a century.

Harris explained that, while conducting research for the creation of the expansion law, he discovered that, although there are a number of references to the town’s planning board throughout its codebook, there is no law that designates one. This means that the current planning board is not a legal entity, and is akin to a committee, rather than a board, he said.

After repeated attempts, The Enterprise got no response from the New York State Department of State to confirm, as Harris had said in the meeting, that it has no record of a certificate that would grant the planning board its legal authority. 

“While the board made a motion in 1972 to create a planning board,” Harris said in the May 13 meeting, “it did not make a law, nor did they have a public hearing … So here we are. We don’t have a planning board.” 

With that discovery, the Berne Town Board moved to table the expansion law and later introduced a new law that would officially designate the town’s planning board.

The bill itself has yet to be published by the town, but The Enterprise has obtained the first draft, which was the version discussed at the meeting. 

The bill’s first draft states its intent to be the creation of a five-member planning board, with that board’s first members being the members of the current planning committee — as it’s now referenced — who will carry out the balance of their terms.

The present members of the planning committee are Todd Schwendeman, Mike Vincent, Mark Sengenberger, Lawrence Zimmerman, and Emily Vincent. Councilman Harris is the planning committee’s liaison. 

In addition, the bill sets the format of planning board meetings and gives the board authority to review and approve plats and site plans. It also sets the voting procedures and holds the board accountable to the various policies laid out in the town’s handbook, which addresses attendance and training requirements. 


Ulterior motives

The revelation of an unauthorized planning board comes on the coattails of several controversies surrounding the town board’s attempts to alter membership of the planning board before any member’s term has expired. 

Most significantly, the town board voted at its Jan. 1 reorganizational meeting to demote member Emily Vincent to an alternate member. Alternate members of the planning board are not authorized to vote except when a full member cannot vote due to conflict of interest, according to New York State Town Law

To replace Vincent, the town board appointed Thomas Spargo, a former state Supreme Court justice who was found guilty of bribery and extortion in 2009 and was sentenced to 27 months in prison. In addition to appointing Spargo to the board, the town board named him chairman, despite a unanimous recommendation from the planning committee that the town name Schwendeman as chairman.

But because Vincent was removed as a full member without a hearing, the town had violated state law, and a legal challenge by Vincent was upheld by the State Supreme Court. Vincent was reinstated and Spargo was removed. 

Following this, the town proposed its law to expand the number of members of the board from five to seven, which would have created room for Spargo and one other appointment, and would also have increased the terms for all new members to seven years. Planning board terms are staggered so that only one member expires each year, which is meant to insulate the boards from political manipulation. 

The town board’s official stance on the membership number change was that more members would be needed to construct a comprehensive plan for the town that would replace the current, “antiquated” plan, as it was described by Councilman Harris in a letter to the Altamont Enterprise. Berne’s comprehensive plan was adopted in 2017.

This activity around the planning committee has stoked fervent criticism from both residents and the members of the planning committee, who question what motives the town board has for pursuing an appointment of the felonious Spargo so aggressively, especially when the board will have the ability to appoint him at next year’s reorganizational meeting when a position opens up organically. 

In February, before Vincent’s reinstatement, the planning committee — minus Spargo — wrote a letter to the town board, submitted also as a letter to the editor of The Enterprise, that called the board’s removal of Vincent “illegal, arbitrary, and capricious.” The Enterprise had pointed out the illegality of Vincent’s demotion in a Jan. 9 editorial.

Once Vincent was reinstated and the town board proposed expanding membership, planning committee member Zimmerman wrote a fiery letter critical of both the expansion per se and of Spargo.

The appearance that there is no planning board, then, prompted some worry that the town board would overhaul the planning committee and construct a planning board from the ground-up, satisfying not only its desire to see Spargo as chairman, but to install a seven-member board. 

Before the meeting, Berne resident Barbara Crosier, the wife of Kevin Crosier, Berne’s Democratic supervisor prior to the election of Republican Sean Lyons to the post, called The Enterprise to explain the new proposed law and her thoughts on its purpose.

“They’re claiming that the Berne Planning Board was never actually put into town law and so that what is there is not legal,” Crosier said “ ... and that the current planning board members are not legal, and that gives them carte blanche to appoint whomever onto the new planning board, including Tom Spargo, the convicted felon, as chairman.”

New York State Town Law invests in municipalities the authority to create planning boards of either five or seven members, with the terms corresponding with the number of members. If indeed there is no legal planning board in Berne, the Berne Town Board would have the authority to appoint an all-new board, according to the law. 

But when the town board indicated that it would make no substantive changes to the planning board — and even went so far as to name the current members of the planning committee in the resolution introducing the law and setting a public hearing, at Councilman Joel Willsey’s request — residents remained suspicious. 

Willsey is the sole Democrat on a board that had been dominated by Democrats for decades.

“They have something cooking,” Emily Vincent told The Enterprise after the meeting. 

Former Democratic councilwoman Dawn Jordan, who did not seek re-election before her term expired last year, told The Enterprise that she was surprised that the board didn’t take what appears to be a golden opportunity to satisfy its agenda, but that, nevertheless, she does not yet trust the board.

“They may be correct that there was an oversight and the town never properly created the planning board,” Jordan said, “but, unless I see proof of that with my own eyes, I will remain suspicious. I give trust to people on face value at the beginning, and then continue to do so — or not — based on their actions. Between my two years’ experience serving with [Supervisor Sean Lyons] and [Councilman Dennis Palow] on the town board and everything I’ve seen since January, they do not have my trust.” 

Harris and Lyons could not be reached for comment. Questions for the town’s legal counsel, Javid Afzali, were forwarded to Lyons, who did not respond. 

The public hearing for the law is scheduled to be held on June 10 and is expected to be held in person, if possible. The town board has agreed that, after the last meeting, remote public hearings will be avoided to the extent reasonable.

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