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Hilltowns Archives —The Altamont Enterprise, December 7, 2006

Westerlo board’s role challenged by residents

By Tyler Schuling

WESTERLO — A pair of residents have sued the town over a proposed development and have challenged the town board’s right to act as a planning board.

The town board dissolved the planning board in the early 1990’s after developers complained about the length of time and requirements to get approval for projects. Town board members have since assumed planning-board duties.

Residents Paul Baitsholts and his wife, Helene Goldberger, are contesting the planning board’s decision in August to grant approval for a 12-lot residential development located adjacent to their properties.

The project, known as Emerald Meadows, is located along Stewart Road, adjacent to the towns of Berne and Rensselaerville. Properties of New York (PONY), owned by Salvatore Santonastaso (known as Sal Santo), Debra Levatino, and Elliott Fischman, wants to develop the 167-acre agricultural property. The planning board gave preliminary prior approval to the project in August.

Baitsholts and Goldberger filed an Article 78 petition, which allows citizens to challenge their government, in September. They claim the board neglected to address significant adverse environmental impacts to storm-water runoff, endangered plant species, and the condition of Stewart Road before awarding PONY preliminary prior approval for the project.

Westerlo suit

In the summons, Baitsholts and Goldberger are asking the state’s Supreme Court, the lowest in New York’s three-tiered system, to nullify and vacate the town’s negative declaration of environmental significance pursuant to the State Environmental Quality Review Act (SEQRA) concerning the major subdivision of PONY. A negative declaration means no major environmental threat is anticipated so an in-depth evaluation is not needed.

Baitsholts and Goldberger also seek to nullify and vacate the town’s preliminary subdivision plat approval; to declare that the town’s negative declaration of environmental significance and preliminary subdivision plat approval, dated Aug. 22, 2006, is void, unlawful and arbitrary and capricious; to declare that the planning board is illegally constituted; and to restrain and enjoin the town from issuing any further approvals or taking any other action to subdivide and develop the property.

Baitsholts and Goldberger say that the project will result in wastewater and stormwater runoff being directed onto their lands, will substantially alter the view from their lands, and will cause noise, which will be heard from their properties.

Baitsholts claims the water runoff from the development will end up in Lone Goose Pond, which has cottages that he and Goldberger rent out in the summer.

Santo told The Enterprise this week that the largest lot in the 167-acre project is 33 acres, and the smallest is six acres. Westerlo requires a lot to be three acres or larger to maintain its open spaces.

Baitsholts and Goldberger, he said, are alleging that septic tanks, which would be installed, will simultaneously malfunction and pollute the pond. Santo said that Emerald Meadows had three engineers inspect the site for its septic systems — one from the Albany County Department of Health, one hired by the town of Westerlo, and another from within PONY — and all three found no adverse environmental impacts.

In December of 2005, Fischman, the project’s engineer, told The Enterprise, "We did soil tests in conjunction with the Albany County Department of Health and found that all those lots are capable of supporting on-site sewer disposal systems."

Planning board disbanded

In 1992, the town board voted unanimously to disband its planning board, saying that negative feedback from residents and the refusal of planning board members to resign from their positions forced them to rescind the duties and powers of the board.

A petition signed by 300 residents, brought to the board by resident Chuck Wilderman in November of that year, triggered the board’s action. Wilderman’s subdivision required two variances and a major change in the town’s road frontage requirements.

At its December meeting that year, the town board called for the resignations of all planning board members, but, before the planning board was disbanded, only one member, then-recently-appointed Eugene McGrath, had resigned.

Each of the five planning board members said at the special meeting that resignation was given serious thought, but discarded because their work, they felt, was fair and equal.

Roland Tozer, who was then the planning board chairman, told The Enterprise this week that he thought the planning board, which was serving at the town board’s pleasure, was doing a good, "thorough" job. "We never did get a clear reason to why," Tozer said of the town board dissolving the planning board.

"I’m surprised they haven’t been sued more often," Tozer said. He said the board members don’t know about planning and they rush things along, relying on the town’s attorney to guide them.

Tozer, who said he is friends with Baitsholts and Goldberger, said that, since the dissolving of the board, he’s been disillusioned. Tozer also said that the town board uses land-use regulations as a power base, and that, by "helping people," the board makes friends and wins voters.

The state law is set up so that appointed planning board members have long terms to be shielded from voter backlash.

In December of 2005, nearly a month after the Emerald Meadows project was proposed, Councilman Ed Rash presented proposals he said he’d been formulating throughout the year. Rash said that his proposals weren’t a reaction to anything specific. Rash, concerned with preserving agriculture, proposed Westerlo change its minimum lot size from three to five acres for a single-family home and from five to seven acres for a two-family home. Rash also proposed setting aside green space to be protected; creating a right-to-farm law; researching light pollution; and including activities such as hunting, training animals, and operating all-terrain vehicles on the list of accepted uses for property.

Westerlo is the fastest-growing of the Hilltowns, closest to the Catskills, where New York City residents often vacation.

Rash told The Enterprise Tuesday that the town board members also serving as the planning board have streamlined the planning process and made the process more convenient for applicants.

Aline Galgay, the town’s attorney, when asked by The Enterprise this week if she thought the members of the town board were knowledgeable about the planning process, said, "Absolutely." She has come under fire from some residents for running their meetings. (See related story.)

Legal history

Baitsholts and Goldberger so allege in their suit that the current planning board is illegally constituted, and state law prohibits members of a town board to also serve on a planning board.

The summons cites the state’s Town Law § 271 (3), which says, "No person who is a member of the town board shall be eligible for membership on such planning board."

Neither of the plaintiff’s nor their lawyer would comment on the case to The Enterprise.

Three informal opinions from the state Office of the Attorney General say town board members are able to serve on a planning board.

One, from 1993, says, "We have previously found that a town board may perform the functions that otherwise would be performed by the planning board." The informal opinion was addressed to John W. Caffry, the village attorney for Argyle (Washington County). Caffry contacted the Attorney General’s Office because the village was concerned it would be unable to find members to serve on its planning board.

The opinion states, "We believe that the zoning articles for towns and villages are substantively the same. Thus, we believe that village trustees may perform the functions that normally would be performed by a planning board. This would not constitute a violation of section 7-718 (3) of the Village Law. That provision prohibits dual membership of an individual on the board of trustees and on the planning board."

The office recommended the village amend a section of Village Law using its home-rule powers in order to not violate the dual membership prohibition.

Another informal opinion, from 1979, says, "Town Law § 271 has to do with the creation of planning boards and appointment of members." It says a town may adopt legislation to authorize special-use permits and site plans to be reviewed and approved by a board made up of the five members of the town board and the five members of the planning board.

A decade later, the Attorney General’s Office issued an opinion to the town of Milford, which states, "In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible."

The opinion cites Ryan v. Green, which states, "In that case, the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices." It later says, "The town board is not required to establish a planning board. Instead, the town board may perform the functions that otherwise would be performed by the planning board. It follows that there is no incompatibility between the duties of planning board member and town board member."

Board backs Galgay

By Tyler Schuling

WESTERLO — The town board is backing its attorney, Aline Galgay, despite some residents calling for her dismissal.

Tuesday night, a handful of residents and the five board members discussed Galgay’s role within town government, and each board member supported Galgay, who has been the town attorney since 1997. The town board makes the appointment annually at its January re-organizational meeting. Galgay also serves as the zoning and planning attorney.

Galgay told The Enterprise yesterday that she will seek re-appointment. She also feels she has strong support from residents.

A small minority opposed her on Tuesday night, she said, but the remaining residents at Town Hall were in support of her.

"I would stay with the town attorney," Councilman R. Gregory Zeh, said after Supervisor Richard Rapp asked for the board’s input.

"She does an adequate job. She does a good job," said Zeh. "So I would keep the town attorney." Zeh later called for a show of people in the audience opposed to Galgay. Out of 40 to 50 residents, nine raised their hands.

The Citizens Against the Reappointment of the Town Attorney, led by Michael Sikule and Eugene McGrath, presented a proposition calling for the town to seek outside counsel at the town’s November meeting, citing conflict of interest. The group also sent a letter to the Enterprise editor, "Who elected the town attorney"," written by Sikule and McGrath, in October, which said, "It seems obvious from attending any meeting — town, planning, or zoning — that it is the town attorney who seems to be doing all the talking, interrupting elected and appointed officials at will, correcting them without any sense of protocol or respect to the board chairperson, making comments directly to the audience without having them evaluated by the chairperson, and addressing applicant attorneys without deference to the chairperson."

Tuesday night, McGrath distributed a list among board members of town attorney salaries in neighboring towns.

He told The Enterprise yesterday that the list was compiled of all the information he could obtain about nearby towns — whether their town attorneys live within the town or are hired on a consulting basis, how much each attorney for the towns are paid, and the population of each town.

"If there are twice as many people [in a town], the town attorney should be paid twice as much," McGrath said.

Tuesday night, Zeh didn’t agree with McGrath’s reasoning. Zeh said that population doesn’t dictate salary. "You have to look at population density," he said. Zeh added, "There are a lot of subjective figures here."

Galgay is earning $18,000 this year for her combined work for the zoning board of appeals, the planning board, and the town board.

The proposition, which does not have a signature page, states: "In a town the size of Westerlo, the chances for a resident who practices law in Westerlo to have legally represented individual residents who ultimately need to come before the various town boards are extremely high. In the instance of Westerlo, this has happened repeatedly"The same applies for board members, other elected or appointed officials or town employees who have received individual legal services from a resident attorney on, for instance, real estate matters, wills, etc. and who ultimately need to come before the various town boards."

McGrath said that there have been instances where Galgay should have recused herself.

A resident who identified herself as a friend of Galgay said that she needed legal counsel and, when she took up her case against a neighboring town, Galgay recused herself. "She couldn’t help me," she said.

Kim Slingerland, the supervisor’s clerk, spoke in favor of Galgay.

"I worked with her every day," said Slingerland, who prepared paperwork with Galgay for the town’s water district. Slingerland said that Galgay could have charged for her services, which would have amounted to at least $75,000, and Galgay "did it for nothing." Town Clerk Gertrude Smith also spoke in support of Galgay.

"We’re not talking about her abilities and qualifications," said Sikule.

Sikule said that Galgay’s practice within the town and involvement in real estate, puts her in a position to have a conflict of interest.

"You’re asking for someone to be dismissed," Councilman Ed Rash said to Sikule.

Rash later said the board asks for Galgay to describe legal matters to them in layman’s terms. "Some construe this as her running the meetings," he said.

"The decisions are the board’s decision," Zeh said. Zeh added that the townspeople elected the board members, and that board members ultimately make decisions. "Hold the other five people accountable. The town attorney does not vote," he said.

Westerlo resident Bill Bichteman said that Galgay’s personality is such that, when issues are brought before the board, Galgay "can’t help herself."

"I rely on the board to make a decision," Bichteman said. He also questioned whether Galgay was needed at town board meetings. "The perception," he said, "is that Aline is directing traffic."

The town will reappoint its officials at its reorganizational meeting at 7:30 p.m. on Jan. 2.

Other business

In other business, the town board:

— Approved a contract with the city of Albany, as a member of the Solid Waste Planning Unit that uses the Rapp Road landfill. The town will be paying $52 for each ton of garbage and $50 for each ton of recyclable materials;

— Resolved to have Central Hudson cut a pole down and cut limbs out at Schlegel Road and Route 411;

— Approved continuing its existing contract with the Mohawk and Hudson River Humane Society in Menands for stray dogs; and

— Set its meeting to pay end-of-the-year bills for Dec. 28.

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