times union readers

Over at the other blog, I write about how a small business person takes risks, has to deal with planning and zoning, workman's comp, payroll, and a whole lot of crap and cannot pass the buck. When Mitt Romney claims he was chief executive but not in charge, I don't feel a lot of sympathy.

Hello people coming here from the article by Chris Churchhill in the Times Union. A couple of years of struggle cannot be broken down into 800 words but Chris did as good a job as anyone could have, so thanks. And he was completely fair to the town. A well-balanced piece of journalism.

Here a couple of points that don't fit in the article. The town spent as much as $200,000 hiring the biggest law firm in the capital district in an illegal executive session, Whiteman Osterman and Hanna to work as special counsel in zoning and planning and special prosecutor against me in town criminal court. The town and the law firm wanted to close my business and put me in jail on false charges. Town officials harassed me (page 122, paragraph 414), threaten to beat me up, said good, yes, beat him up, told me to get out of town, observed my house every day before dawn with video cameras, made other threats, and more incidents,  and the reason for all of this cannot be clearer. Here is the town zoning officer saying why they did this himself. They told me I had no right to appeal anything they did.  The town raised taxes 18% to pay for all of this. More on the Whiteman, Osterman and Hanna thing here at page 78, paragraph 265.


By the way, the idea that there can be loud barking at more than 1000 feet defies the laws of physics. They should have charged me with kidnapping Santa's elves: it's more likely. The town cronies know there is no noise but voted against me on the noise charge anyway. You can tell it is not loud right there from your computer. (At page 107, paragraph 368.)


So now, is five lawsuits too much of a response to all of this? Well, what are the lawsuits about? Well, keeping my business open, getting information, Freedom of Information, stopping cronies from running businesses prohibited by the zoning law, assessment corruption, and the town attorney stealing a lot of money. Five is no where near enough, since there is so much crap to try to put a stop to!


Another thing: I said I sent in 100 FOIL requests -- those requests are mostly to every town in Columbia and Greene Counties for attorney invoices, not to Stuyvesant. I have only sent Stuyvesant about 20 requests over two years. I can hear the spin from the town side already about the 100 FOIL requests!


I built sound proofing. The town revoked my permit after the work was done anyway. I tried mediation. The town said no. I tried to cut a deal. The town agreed, but not in good faith. Here is the neighbor who is supposed complaining. 


So thanks for stopping by the blog. Comment, say hello, thanks. Here is the zoning officer of the town of Stuyvesant explaining why they hired the biggest law firm in the capital district, Whiteman, Osterman and Hanna, to close down a family business and put the operator in jail on false charges, right from the horse's mouth:



And yes, the town attorney did steal $10,000 from the town and a whole lot more from the county, that would be: Tal G. Rappleyea, a man who has as many as fourteen (14) jobs in 2011 and 2012. He is or was until early 2012 an assistant county attorney, claiming work 6 hours per day at $27 per hour. Rappleyea was in 2011 or is in 2012 the designated town attorney for Durham, Ashland, Athens, Prattsville, Lexington, Germantown, Cairo, Stuyvesant, Austerlitz, Copake, Chatham, Greenville, and Jewett.

New York structural malfuction

There is an article in the Register Star today about the suit against the town and a business owned by a town official being tossed out by the judge. I'll post the decision if anyone wants to see it, but essentially, the judge didn't buy my argument that standing should include more than the local effects of the business, that there needs to be a rational application of the law to apply to all in order to allow those living under the law to know what is and is not allowed. The judge sided with the town that the issue should be considered narrowly.

Courts probably don't want to have to deal with every case of insider dealing that the system of local control and 1200 jurisdictions creates in New York. There is no other mechanism to deal with insider dealing, though.

I know that these small towns should not have town courts and town highway departments. You simply spend too much money for too uneven a product, including complete incompetence and corruption, patronage and abuse of criminal justice, in many instances, by allowing 1200 jurisdictions to administer justice and buy equipment and hire workers. If you reduced the number of jurisdictions, they would be easier to police. If you get rid of town court and town highway departments, you could save boatloads of money and get better justice and better roads.

Speaking of police, I also know that a county of 65,000 people should not have 6 police forces, like Columbia County. Comstat, used in the New York City to put resources where they are needed, lead to an 85% reduction in crime over 20 years with no increase in spending. That's what this rural area needs: the ability to allocate resources based on hard data regardless of arbitrary political unit, "Hudson" or "Philmont" even Columbia County. If there is a crime wave in Philmont, take officers out of Hudson. You could save a lot of money and get a better product.

In terms of the town assessor, real estate taxes should, ideally, be largely replaced with other taxes, as property taxes are expensive to collect, inherently unfair, cause distortions in development, and punish farmers, retirees, and poor towns. But if we can't get rid of assessment, we should get rid of the local assessment office and standardize the system in larger units with layers of accountability by people who do not know each other. You can save a lot of money, or better yet, get rid of the tax all together and replace school funding with a better mechanism.

But what about zoning and planning, the issues at the heart of the case that was dismissed? My answer to this problem is more complicated and I'm still chewing it over. I know that letting many small towns around control zoning and planning has lead to nothing good and a lot bad. I know that the power in these boards, if there will continue to be boards, has to be more dispersed. I'm thinking...

FOIL

On Feburary 8, 2012 I sued the Town of Stuyvesant to get photos of the Hook Boat Club, invoices for Whiteman, Osterman and Hanna, cancelled checks for Tal Rappleyea and some other stuff. After I sued them, I got everything I wanted. Today I got the judge's decision. Since I got everything I wanted, if the case is dismissed, fine with me. I sued. I got what I wanted. I won.

When the court says "given that petitioner has received all the relief to which he is entitled, the matter must be dismissed as moot" that means I got the documents. So case dismissed. I won.

Moral of the story:
If you send in  FOIL request, you had better be prepared to sue to get what you want to see. I am prepared to sue and I did get to see what I am entitled to see.

Here is the Register Star (written a few days after I posted the decision here on my blog). If you read the article you wouldn't know that I 1) did not get the documents until I sued; 2) got them after I sued. That's all you need to know. In my opinion, I won the case before the judge's decision.

And the Register Star story refers to Robert Freeman's Committee on Open Government talking about Melissa Naegeli a year and a half ago, or whatever it's called. Here is the man when he came to Stuyvesant.


Pending litigation: "neither a member of the public, nor an adverse party, forfeits rights to disclosure of government records once a government agency becomes involved in litigation” Orange County Publs. v. County of Orange, 637 N.Y.S.2d 596, 602 (N.Y. Sup. Ct. 1995) as per matters of Farbman & Sons v New York City Health & Hosps. Corp., supra; Matter of Burke v Yudelson, 51 AD2d 673, 674 [4th Dept 1976]).

Definition of privilege: Only communications that have as their purpose the obtaining by the client, or the providing by the attorney, of legal advice or assistance, come within the privilege (matters of King v Ashley, 179 N.Y. 281 [1904]; Kenford Co. v County of Erie, 55 AD2d 466, 469 [4th Dept 1977]; Stefano v C. P. Ward, Inc., 19 AD2d 473 [3d Dept 1963].)

Letters and memos are different than invoices (matters of Steele v New York State Dept. of Health, supra; Mahoney v Staffa, supra; Matter of Austin v Purcell, supra). The court recognizes that not all communications between attorney and client are privileged (matter of Priest v Hennessy, supra, 51 NY2d, at 68, 69.). In particular, “fee arrangements between attorney and client do not ordinarily constitute a confidential communication and, thus, are not privileged in the usual case” (supra). Indeed, “[a] communication concerning the fee to be paid has no direct relevance to the legal advice to be given,” but rather “is a collateral matter which, unlike communications which relate to the subject matter of the attorney's professional employment, is not privileged” (matter of Priest v Hennessy, supra, 51 NY2d, at 69.)

Definition of attorney work: Respondents’ denial of the FOIL request cannot be upheld unless the descriptive material is uniquely the product of the professional skills of respondent's counsel. The preparation and submission of a bill for fees due and owing, not at all dependent on legal expertise, education or training, cannot be “attribute[d].. to the unique skills of an attorney” (Brandman v Cross & Brown Co., 125 Misc 2d 185, 188 [Sup Ct, Kings County 1984]). In Westchester Rockland Newspapers v Mosczydlowski (supra), as cited in Orange County Publs. v. County of Orange, 637 N.Y.S.2d 596, 602 (N.Y. Sup. Ct. 1995 a FOIL exemption for material covered by CPLR 3101 (d) was allowed in attorney invoices: “legal issues researched, which bear upon the law firm's theories…; conferences with witnesses not yet identified… in ongoing litigation” (also see, De La Roche v De La Roche, supra, 209 AD2d, at 158, 159.).