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BRIEF FOR THE PETITIONER,
MARCH GALLAGHER, ON BEHALF OF CARES
APPEAL NUMBER I-11-08-01
ZONING BOARD OF APPEALS

    I. The Zoning Board of Appeals has jurisdiction over the Gallagher request for interpretation.

    March Gallagher, on the behalf of CARES, is an appropriate party to seek an interpretation by the Zoning Board of Appeals. Such a request must be properly filed and the Gallagher interpretation was filed on a form proscribed by the ZBA. See Interpretation Request [Exhibit 1]
    
     A. The Zoning Board of Appeals has original jurisdiction over questions of interpretation.

     State law limits the jurisdiction of the zoning boards of appeals to appellate only jurisdiction, "unless otherwise provided by local law or ordinance." Town Law ~ 267a(4) (emphasis added). The Town of Saugerties has otherwise provided in that Zoning Law provides the Zoning Board of Appeals with original jurisdiction on questions of interpretation. "The Board of Appeals shall, upon proper request, interpret any provisions of the Law about which there is uncertainty, lack of understanding or misunderstanding, ambiguity, or disagreement." Zoning Law ~7.4. The Planning Board's failure to vote on the lead agency question demonstrates a lack of understanding. Accordingly, the Zoning Board of Appeals has original jurisdiction over this question.

     B. Interpreting the lead agency decision as an official act or duty of the Planning Board would not be issuing an     advisory opinion as the question is still live at this time.

    The Town Supervisor has sent a request to the Commissioner of DEC asking DEC to return the lead agency question to the Planning Board.
1 See Helsmoortal letter dated, August 23, 2001 [Exhibit 2]. SEQRA allows the re-establishment oflead agency where there has been a failure in the basis ofjurisdiction of the lead agency. 6 N.Y.C.R.R. ~617.6(b)(6)(i)(b). Chairman Creen's unilateral action undermines DEC's jurisdiction. DEC may well retum the lead agency question; therefore this issue is live and ripe. If DEC responds by returning the question, the Planning Board will be required to once again to consider whether or not they wish to assume lead agency. An interpretation that such a decision is an official act or duty of the Planning Board would ensure that the Planning Board undertakes the proper course of action the second time around, namely taking a vote.

1 The Planning Board voted unanimously to support Mr. Helsmoortal's letter at the August 21, 2001 meeting. See Planning Board Minutes dated August 21, 2001 [unavailable, as not yet filed with the Town Clerk as ofFriday, September 07, 2001].

    C. The ZBA interpretive power has no effect on the SEQRA process.

     Contrary to the position taken by the applicant, this question of interpretation does not ask the Zoning Board of Appeals to do anything that directly affects the SEQRA process, nor does Petitioner argue that this appeal stays any SEQRA proceeding. Regardless of the SEQRA process, this Board may interpret Saugerties Zoning Law. The State Environmental Quality Review Act procedures for seeking a change in designated Lead Agency are not at issue here.

    II. The Chairman acted unilaterally to have a consultant forgo lead agency status on the Shott project.

     On June 4, 2001 Scott Ballard of the DEC wrote to the Saugerties Planning Board asking if the Town of Saugerties wished to be lead agency on the Shott mining proposal in the state environmental quality review process. See Ballard Letter, dated June 4, 2001. [Exhibit 3]. According to the minutes ofthe Planning Board, the Board discussed the lead agency matter and referred it to the town consultant, Shuster and Associates, to review. See Planning Board Minutes, dated June 19, 2001 [Exhibit 4].
     June 29, 2001, Shuster and Associates sent a letter stating "[a]s per the request of the Chairman of the Town of Saugerties Planning Board . . . [t]he Planning Board does not wish to be Lead Agency on this project." See Shuster letter dated June 29, 2001 [Exhibit 5]. Chairman Creen concedes that a vote did not occur regarding the lead agency question. See State Raps Planning Chief on Mine Move, Kingston Freeman, Aug. 26, 2001, at A5 eMy failure, there was no one there but the board, I didn't do a formal vote of'aye.") [Exhibit 6].

    lll. Interpreting the lead agency decision as an "official act or duty" of the Planning Board will ensure compliance with the Open Meetings and Freedom of Information Laws.

   The Planning Board's failure to vote on lead agency decision violated the Open Meetings Law. Chairman Creen's unilateral action robbed the public ofits chance to participate and oversee the Planning Board's actions. "It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public offrcials and attend and listen to the deliberations and decisions that go into the making ofpubiic policy." Open Meetings Law ~ 100. The minutes ofthe June 19, 2001 meeting demonstrate that the Planning Board discussed giving the Consultant a chance to review the lead agency question and make recommendations. The Chairman acted unilaterally. A spokesperson for the Department of State recently stated "it's not within a chairman's unilateral authority to decide if a board is eligible to be lead agent . . . a majority ofthe board is required." See Freeman article at A5.
     The Planning Board has also violated the Freedom ofInformation Law by failing to file the minutes ofits meetings on at least two occasions. "The Open Meetings Law requires Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from Ñ the date of such meeting." FOIL ~106(2). Specifically, the minutes of the June 19, 2001 meeting at which lead agency status was discussed were not made available to the public until five weeks after the meeting. Then again, in preparation of this brief for the Zoning Board of Appeals, CARES found that the minutes of the August 21, 2001 meeting were still not available as ofFriday, September 07, 2001. See Donaghue letter dated September 7, 2001 [Exhibit 7]. An interpretation by the Zoning Board of Appeals that the lead agency decision is one that requires a vote will encourage compliance with the Open Meetings and Freedom ofInformation Laws.

     IV. The lead agency decision must be properly handled regardless ofthe likelihood of DEC granting Saugerties the lead agency role.

     Any opportunity the Town has of being made the lead agency is a decision that deserves due process. Other towns have assumed lead agency in mining cases.2 The Town could have sought co-lead agency. Furthermore, a request for lead agency sends a signal to DEC about the levelof involvement of the Town. Even if DEC usually takes lead agency in mining applications, the important thing here is that the decision-making process did not follow the law.

V. The petitioner respectfully requests that the Zoning Board of Appeals interpret Saugerties Zoning Law to include lead agency status decisions in the definition of "official act or duty" of the Planning Board.

Respectfully submitted,

March Gallagher

2 For example, the town of Warwick is currently serving as lead agency in the SEQRA review of a mining permit. See Town of Warwick Planning Board's Findings Statement regarding Dick's Quarry Mine, Inc. available at www.questionthequarry/.com/body_findings.html [Exhibit 8].

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