Common Council, Legal Committee transcript: FUTURE HUDSON

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0:06I'm not laughing so I'm not on my So this is the legal committee meeting August August 13th we begin with roll call. We have Jackson present and Channing and Kerr who is not present. And Marcus so all present. This evening Jack Horrigan is going to give us some information on Mill Street. These are documents that were submitted to the full council at our last meeting we did not discuss in that meeting. So Jack is going to go over that I guess you're going to go over the Parkland fees first and then you had submitted two resolutions for consideration.
1:01Correct?
1:02Sure.
1:02Okay. So if you wouldn't mind being close to the mic.
1:08Yeah. Thanks for giving me a bullet.
1:13Yeah, pull it up on the screen.
1:14The public comment?
1:16Begin with um
1:19Parkland status?
1:21Begin with the one that says um
1:23The email is the email that I sent with the
1:26Parkland status.
1:28That's probably the resolution.
1:32Parkland status of Mill Street.
1:34Oh, that's the stuff from last
1:36This is yes, this is something that you had sent to us last year and it has all of the history of Parkland. I don't know if you want to give us a summary just quick overview of cuz this is the basis of one of your resolutions.
1:51Yeah, yeah that's right. So I don't have a great speech prepared today. I really didn't think of this as being Um yeah, so the information that I submitted to council last year that I sent again a month ago is a body of research that I conducted. It's a combination of mostly municipal plans that are on record available on the city website and the deed for the property which is still the record of ownership currently under the city's ownership that contains the Parkland dedication clause. It's in writing from the school district. That's from June of 1983.
2:30Um and then uh there's some photos and stuff in the email, too. Um but really I guess the the law on Parkland alienation is that when a municipality owns land that it uses and puts forward to the public as Parkland, that's either expressly in writing dedicated or impliedly dedicated through its actions, uh that land is subject to an extra layer of protection and any sale or use other than Parkland has to be approved by the New York State Legislature. It's not an uncommon thing for the legislature to do. They do five to 10 a
3:05year. Uh and you can find them. The last one I found was like in Kinderhook from a year or two ago for creating a fire department building or something like that. Um it's just a matter of course. It was not done here for this project. I think the record really thoroughly shows that the land for 100 years has been used as a public park. It began as the ball yard, the playground basically for the Charles Williams School which is up the hill. It's the same kind of relationship with J.L.E. The school is on the hill and then the playground is below.
3:37Uh in the '70s the city kicked up a softball team and I went to the Columbia Green and looked at all these old uh Register Star articles and found this this league was uh in operation throughout the summer from Memorial Day to Labor Day, Tuesday, Wednesday, Thursday games. They had a tournament mid-year, and this went on for 25, 30 years. Um and then since then it's shown up in the municipal municipal plans over and over again as being part Charles Municipal Park. The I think the strongest evidence is that the city itself, when it applied for the funding to build the playground on the north side of the street, um acknowledged that the south side of the street was already parkland, already being used as a as a baseball field. And
4:24so they were awarded money from the state to build that playground on the north side of the street on that basis. So that that other is another kind of written declaration. And then really just in the last 20 years it still is used it is used today. Uh two nights ago there were 10 kids playing soccer on the field. Today there were two kids riding around on dirt bikes. They like to ride up the embankment. Um there was a man who every day went cross-country skiing around when there was snow. It's still in the mind of the public. It's still mowed by the DPW on a
4:56like weekly or monthly basis. So it's still effectively a piece of parkland that the city is in contract to sell having not performed the final act of going through the New York State Legislature.
5:13So um you Ken, by the way, can't be here too much.
5:18Okay.
5:18Um so you presented us with um
5:27Yeah, I guess
5:28You sent us You sent us two resolutions. Do you want to walk us through those?
5:32Yeah, it's if you want me to finish the thought on the parkland piece.
5:35Yes.
5:35There's a case called Gladsky v. Glencoe that says anytime a city enters a contract to sell parkland that it doesn't [clears throat] that and the contract doesn't contemplate going through the state, and they don't go through the state, then the sale can't go forward and the contract is null and void. And that's clear in that case, Gladsky v. Glenwood. So, I think that efficiency alone is enough for the city to remove itself from this contract with Kearney. Um and the resolution that I drafted is really to resolve any ambiguity as to
6:09the status of Parkland. Um because there isn't a The reason this is still an open question is because when I raised this a year ago, the answer from council at the time was there is no um you know, there is no ribbon cutting. There was no official declaration that's on that's in writing. But as I said, it's been in use used this way for 100 years. It shows up in municipal plans over and over again. And really the body of law supports that conclusion. So, I put that resolution together to make that clear once and for all that the status of the land is Parkland, which doesn't mean it can never be built. It just means it has to be built in coordination with the state government. They have to support the project.
6:49So, that's what the Parkland resolution is about.
6:51Any questions on that?
6:54Clark.
6:55I was just thinking that just the fact that the city asked the school district to remove the clause also implies Parkland. Like it's a confirmation. The act of asking for the clause to be removed.
7:09Yeah. Yeah, and so that clause says if the city under doesn't use it as Parkland, then they need and it goes back to the school. So, the city is acknowledging it has been Parkland up until this proposed transaction and wants the school to give them the green light. And like I said, it still is used as Parkland this week. Still owned by the DPW, people's supply yard.
7:34So, what do we want to do with the Parkland resolution?
7:43Let's Trying to sort out which one
7:47Uh it's if you look at the document which may not kind contract and not speak. Uh
7:57I think we should scroll down here.
7:58public comment
7:59Let's scroll.
8:03Can you see that one? 7 16 2015 document There's a communication beginning and then two resolutions.
8:21Yeah, that's the second resolution.
8:22There is the second resolution. Do you have any questions for us?
8:29No.
8:29I'm
8:30reading the analysis tonight and yeah, I'm curious when I said part two is it is it for us to meet with
8:40Do you want to meet with the mayor's office?
8:41I'm sorry.
8:42Is it to meet with the mayor's office and have a conversation and see what her experience has been with situations like this or is it to bring it to the full council?
8:52I I think we should bring it to the full council because, you know, I'm being asked to bring it to the full council. So I think we should bring it to the full council. So my suggestion is that we bring it to the full council. So there are people Um I um uh no questions from the what was presented last year from the what was some of the previous resolutions. Um but this is public comment.
9:19You want to speak up?
9:19Sorry.
9:20It's all right.
9:21Um I have no questions in my mind with this is part two. And I think to Jason's point that the that the city asked the school to approve that clause and that it's in the deed that it can be only used recreation and so forth. I think there's a lot of documentation here that this is a park property. Um the process that you're describing um that state process was not followed. So, I think probably taking it to the full council is unfortunate that council or common council isn't here this evening, but I think we need to get input uh on that and possibly also get input from
10:02Andy Card. So, I'm not really sure that talking through the is a I don't know what the next step is.
10:09Actually, I was before that, I wasn't paying attention to this part of the conversation prior to being on the council. So, what was the previous administration's response to like the um
10:22[clears throat]
10:22acknowledgement of this being park land? What was the the rebuttal to that?
10:27The last year?
10:28Meaning the mayor or the
10:30Yeah, the the mayor who presented the project and and or the developers. Like, what act did they have? Reputed company?
10:37I don't remember. Well, Jack would remember.
10:40Yeah, I
10:40Any response?
10:41The response I got when I presented the information to common council was that they uh disagreed because there was no formal declaration. Um no I mean, you can imagine it. Like, there's no sign There's no sign on that side of the field. Um it still lacks improvements. There's nothing over there anymore. There were lights and a backstop.
11:03But, were they speaking from like a a legal opinion?
11:06No, not really a legal opinion.
11:08No.
11:08And and also a case was made um which didn't make a lot of sense that when we were applying for grants for the playground area
11:21Yeah.
11:21that somehow that defined that the park area was the Were you over that conversation?
11:25Right. Yeah.
11:27But, that didn't make any sense because the whole plot in the back of the deed what was submitted that contradicts what was actually in what was submitted.
11:36Yeah, so so when the city applied for that funding, I think it was 2006, they when they received the money, they uh dedicated that land on the north side of the street as park land cuz they got state money to build a park.
11:48Right, that was the basis of it.
11:50Um and the city's response last year was, well, we never made a declaration for the south side of the street, but that the grant application to the state acknowledges that the south side of the street is always there a ball field. And when you look at the plan that was submitted, it included putting money into the south side of the street.
12:06There There's a For me, the where the rubber meets the road is the therefores in your resolution. And there's two things basically that are being asked for. Yeah. One is to make that dedication, which is a bit symbolic or just like Yeah, I I don't know that it's doing [clears throat] that much. To to make the statement is just
12:28Yeah.
12:29It already is park land and it's already park land, but we can do it, but the real meat is the next one.
12:36Yeah.
12:37Where not only does it I think maybe what you're implying, Claire, might going to be there is to then pursue it through the right channels to not be park land or to be undone. But what is being asked of this resolution is to not allow that cuz um because this was done this way, and that's maybe where we need the most legal advice.
13:00Yes.
13:00That we can actually void the contract.
13:03Right.
13:04So that's the biggest item. Um
13:08So I think it's really um uh it really is a question for uh the city attorney and um the town council attorney to have this discussion. Um which I've been trying to arrange up to for a while. Um but I think that's that's where the next step is. I mean it is conceivable that they would now decide, well, in order to fix the situation, now we need to go to the state and get the and go through the process that you outlined. And maybe it's even two years out.
13:46That they would need to go through these steps with the state. That's something for the government to decide to do.
13:53The next step is like further questions that I would ask if our you know, how Grand Manor view the questions of and determinations of park land that get I get the South Side has been considered a ball field. Is that so specific that it's not considered state park area or park land? And because most of our ball parks in the area are privately owned, like does it get that Grand Manor one there's somebody that is looking to make use of the land in a certain way?
14:19I don't think that it does because the deed itself just says park land. It doesn't say ball field. It doesn't say And the new agreement with the school district says recreation.
14:33So it's it's an only for I think what I was
14:37Park and recreation purposes. That's where like it gets weird when cuz if it doesn't say park land and it says recreation, then they can make that argument. So I that's where my mind I would like to ask them that.
14:49Yeah, no, I think I think the next step would I what I suggest is that we have this bring this to the discussion to the full council and then that we get input from our attorneys.
15:03Um both?
15:04Yes. Um so we see where what the next step is. I follow the park land.
15:11Would you mind talking a little bit on the idea of writing the contract because of this?
15:16Yeah.
15:17Glenn
15:18You're talking about the
15:19Glenn Cove versus the city.
15:21the second last the last
15:23The last deal that we had was No, the second the second one. Yes. So yes, it's one resolution but there are two impacts. The first one you named is officially dedicating the site as Parkland and I take your point that it's symbolic because we all agree with this body of evidence but for my position is more than symbolic because when I presented this over a year ago, no one believed me, right? So
15:50[laughter]
15:53So I would I wouldn't shy away from that or discount that because it is meaningful but it didn't declaration. Yes, but the second resolution seeks to void the contract Klatsky v. Glen Cove. The second the second therefore yeah. The second therefore be it resolved in this resolution. It says Klatsky v. City of Glen Cove. That's a case where Glen Cove was seeking to sell waterfront property and the contract didn't contemplate that state legislative approval was even necessary and the court under those conditions found that contract itself was void.
16:41So that's the same situation that we have here. The contract that was drawn up in January and May of 2023. At that time the city which was rushing to sell this property didn't know that there was a deed restriction. It should have known that the public treated it as Parkland but it didn't it hadn't done a title search. And you look at that contract for May of 23, there's no description of the property. There's a description of State Street as a deed but no one had done a title search. So the the deed was
17:12uncovered when the developer did their own title title search and the contract of course then doesn't require didn't know that it needed state approval. So, that's the holding of that case and
17:26that was the in the contract it was that the developer had to do a deep search and if there was any issue they would have to bring it to the city. Otherwise, it would be assumed that there was no default. Correct? So, it's a 60-day search in the contract?
17:43Yeah. And then
17:45Do you have Do you have a copy of that?
17:47Of the Glencoe contract or the
17:49No, I'm talking of of the deed that was uncovered during the final
17:52Oh, yeah. It's in the county records.
17:55Yeah.
17:55Yeah.
17:56So, I mean that's really what
17:58Yeah, they the developer found the deed. Under the contract with Hudson, if there were defects then the city could choose to cure them or not. I think the city in response tried to get this whole
18:10That is exactly what it
18:11Right?
18:12Mhm.
18:13to release the reverter.
18:15Yeah, but that
18:15That's the only part.
18:16It doesn't actually happen till closing. Like it never They didn't go through a process where they were going to remove that restriction and it's off the deed now. Like it's still on the deed. It's still in the deed. Yeah. If it were to be cured, it'd be cured at closing.
18:30Uh yes.
18:32I believe the school has the has stopped They were engaged in some activity related to this and they stopped. And then the outcome of of the current situation.
18:45I I don't know.
18:46I I I'm not I don't know I don't know what happened to me. Uh
18:50I I guess where I'm
18:50Here would have the facts.
18:52I'm stuck on this a little bit.
18:54Yeah.
18:55Glencoe the the courts nullified the
19:00Yes.
19:00the contract between Glencoe and Blasky.
19:04Yeah.
19:05And what we're asking you to the council to void the contract. In a way following that law Keith law.
19:13Uh yeah, in effect doing what the court would force the city to do.
19:19I see your approach.
19:20If if someone litigated it to that
19:22We're taking a bold step that really may happen through the article 78.
19:28Yeah. It's true. Uh it's not at the request of the court in that case.
19:33It isn't.
19:34No.
19:34You didn't mention the parkland issue is not
19:36Oh, the parkland issue is. Yeah, we're looking for a dedication, a declaration of parkland, finding from the court that based on this body of evidence, the site is parkland and it was not alienated properly.
19:47But if that court were to follow what Ski versus Planning Board they could come to the same They could do the same as the previous court.
19:56Uh I suppose they could. I don't think we We haven't asked them to void the contract on that basis. And again, I think what we've all learned from the last 2 months is that Common Council controls the contract, controls the sale of real estate, and it got into this position because it sold real estate without knowing the nature of the real estate it was selling. The contract doesn't account for that and it was Yeah, there are several versions of the contract that the council never really
20:23The signed one we never The one that
20:25fully reviewed or
20:26The one that was signed the council never saw.
20:28I thought that too.
20:32But yeah,
20:33not the same one.
20:34Right.
20:35Substantive difference.
20:38Do we Do we have the committee want to have an opinion on that or do we just want to take it to the council and describe it?
20:44I I would like to hear what Mr. Dow has to say and I [clears throat] also like the opinion of um Andy Howard.
20:59Yeah.
21:00Yeah, I would like to go over this before. So, I mean, um I placed on you um I agree with this. Um I hear your thing about the council declaring the contract uh uh void. Uh is that something is that an action we should be taking? Uh and that's where I think we need to get legal advice.
21:24Cuz it I'm not saying personally that I mean I I think I'd like to
21:27Yeah, but
21:28personally but whether we should.
21:30I would do.
21:30What I'm saying.
21:31Yeah. Uh any other comments from the committee? So, we will send this to the full council and this time I will not ignore it on the agenda.
21:40[clears throat]
21:41Well, no, but for that do we need to wait for the legal advice? Should we get that legal advice before we bring it to the council or they're going to
21:49going to be
21:50They're going to do the same.
21:50I I I only heard today that he was out of town. So, um
21:56But you know what I mean? Like if we don't have their opinion
21:58Yeah, no, I agree with you. Um I think what that we need to have um a attorney-client session.
22:05In the first place.
22:05Um all right. Uh so, what I can do is connect with family and with uh Cameron to see when he's going to be back and maybe a former meeting that we will bring this. Uh I think probably Monday's too soon um because I don't know if Cameron probably back at the end of this week or I really have no idea when he's coming back. Cuz all I know is that he's not here too much. All right. But I think that's what we'll do. Any other comments from the committee?
22:37Okay.
22:37Yeah. If I may just one more thing.
22:39I'm just
22:40curious how you would take it. You know, I did guy research. I did 10 years in New Jersey in [clears throat] the 2008. But anyway, I don't know how you go back to a deed and take a force what they call a world tour or anything. Very a deed restriction. The deed restriction where I don't know how you would undo that historically. I don't know that a new school the school board can actually go ahead and take a start document that was memorialized put in place.
23:11I don't know how you undo that. I mean there's the done where outside of that requirement. You know, just another example of fighting the start of the deal or point.
23:23So I did just want to say on the Parkland resolution, it's mostly whereases laying out the record and history of the property. The two requests are to declare it officially.
23:32[clears throat]
23:32The second request is to terminate the contract on that basis. I'll give you the case. I haven't read it in a month, so I'm sorry I can't go into more details, but it is directly on point. I'll make sure Mr. Dallas sees it as well. And if you if the council is willing to move on that first request of an official declaration,
23:49Yeah.
23:49then I there's nothing stopping me.
23:51see any issue with that myself. Um I have a question regarding my home also. Um So the land called can you speak to describing it was um waterfront property, right?
24:04Yeah.
24:05So are there different rules about waterfront versus um parkland?
24:11They sort of merge. There's this uh general city law 20 section four or something like that refers to waterfront and park property and it all is kind of in the same level of protected status. And then the doctrine of parkland alienation is mostly through court decisions, but they sort of reach the same place that only the state legislature can authorize the sale of one or the other.
24:36Okay.
24:37Yeah.
24:38All right. All right. So let's go to the other one that you sent us. So this is the uh parkland. So the other one uh relates to um the Carroll property located in Block 22 before. So what what through it.
25:00Yeah, so I wanted to just you know, the I think the last 2 months we've all learned a lot about the whose authority is whose in the city government. Um, by the discovery of this contract extension. So, my research, my position on this is that the extension that was signed by the mayor that it is not that wasn't approved by common council. It's a material change to the contract. Contract had a closing date which is past. The mayor's extension wasn't approved by common council. And based on the resolution that council passed last month uh, it I'll be
25:37provided but it uh, reasserted its authority to review any substitute changes to real estate contracts. So, that begs the question of what is this what is this extension do if it was a substitute change that wasn't reviewed or approved by council? And in my opinion it's just a piece of paper right now. It's it's unenforceable. It doesn't mean anything because it wasn't approved by council. So, if that's the case then May 3rd is still the deadline. We're long past May 3rd. That puts Kearney in a technical default
26:10because it hasn't closed on the Mill Street property but more importantly they never pursued State Street. And they never pursued Rossman Avenue. I think Rossman Avenue was
26:23That one was canceled.
26:25Right, but they they never The whole spirit of selecting Kearney as the developer was under this scattered site housing development
26:34I thought it was four and we're doing four.
26:35plan. And the legislative authorization to sell any city property to Kearney is conditioned on development of all three sites. And then [clears throat] the contracts are drawn up so that the sites are bound together based on that plan.
26:49Except that there were two contracts.
26:51Right.
26:51One for Rossman
26:52Mhm.
26:53and one for Millan State.
26:54Right. So, Millan's
26:56Millan State
26:56Millan State are bound in contract.
26:58in joint contract. The Rossman one, I don't have any documentation on this, but what was explained to us at that time, you remember this, was that the slots, the two slots that they had, there was an issue with the size of the slots and what they were planning to do.
27:15Yeah.
27:16Because they were going to have a they this was a uh rent-to-own type situation and the home owners were going to have a secondary unit, which would be a rental unit. And that would be to assist in the public covering cost of mortgage and all of this. That was the whole strategy of the thing. And there were issues with, I believe, with the size of the lots with Millan and State related to funding the project.
27:46I I I all I remember about that was that there was some kind of technical hitch and then it fell apart.
27:52Our contract did our contract went away. Why Rossman was handled in a separate contract, I do not know.
27:59Yeah.
28:00Um I When we were looking through trying to find all the documents related to this, um I expected to find either one contract for all three or three contracts. And I didn't expect to find one for Millan and State and a separate one for Rossman, but that's what we
28:19Mhm.
28:20Um
28:21So, we have a contract that binds Millan State and the legislative authorization for all of them requires development of all three. So, the failure to even pursue State Street or pursue Rossman is
28:34That to me is the more um uh compelling argument. Um With regard to the date, uh what I have been told, again we would have to get legal advice on this, is that when you have a um on or before the effective date, that there needs to be additional language uh, saying um time being of the essence or something like that. That to make that date truly a final date.
29:13Time is of the essence.
29:13But if it's on or before and it's not specified that this is uh, time limitation, then on or before can be interpreted more broadly. Uh, which would mean which is like putting to one side a minute, uh, whether or not we've got to review and approve the amendment, um in that scenario, that amendment would be okay because that on or before is fuzzy language too. Please rate forward hearing this to me, but in the law um if it's not um that's what I can tell. Uh, so the amendment if it had gone through a different process, then there might not be any question about it.
29:55So, uh that to me is I that's still fuzzy to me and I think we need legal advice on that. But the fact that nothing was done with State Street, uh, as you lay out here that they didn't pursue funding for it. Like all of those things are in the are in the contract that they are to make uh, due diligence to get funding and so forth.
30:17Yes.
30:17And then if they fail to do so, uh, that then their this this contract is is is you know, null and void.
30:26So, if there's nothing else left but a tied up empty lot on State Street, that's that could that could be a scenario here. Regardless the real physical result of this could be just
30:38Mhm.
30:39State Street is owned by Kearney and the city can do nothing with it.
30:42That's right. But they had no money exchanged hands.
30:46No, nothing was sold. Nothing was sold.
30:49Yeah.
30:50Um
30:51But but the the I'm trying I'm trying to find my hearing aids here.
30:56One question I asked to Jack and I wonder if you had time to think about it was the reason May 3rd didn't work is because of the Article 78.
31:07Mhm.
31:08And that I I guess that feels wrong in a way. That that knowing the contract um in your in your interest and your neighbor's interest yet at the same time your Article 78 is the one that caused it to go beyond the May 3rd date. And I'm not personally again offended by it cuz I do want to try to get out of this but it feels like a a legal loophole. Like like a tactic. A tactic to force the contract to not be closable past May 3rd by filing an Article 78 and
31:54forcing it to go beyond May 3rd.
31:56Yeah. Yeah, I take your point. Um the Article 78 um there is no judicial order, there's no restraining order, preliminary injunction, there's no automatic stay. I hate to say this out loud but technically the city could sell Mill Street right now. That would be an outrageous thing to do but it could and then if the development were built based on the preliminary site plan, the lawsuit would face the problem of being moot, right? Because of the building that had been built. That's an extreme course of events.
32:29Uh I think the city is in a position of effectively crossed defaults. The city can't sell Mill Street because the plan that was put forward and rubber stamped is inadequate for that site. And is justifiably being challenged in court. But meanwhile, the developer who promised to build two other sites has made no effort to build either of those sites.
32:51That was two years ago, wasn't it?
32:52Yeah. Or or provided any explanation or update or anything.
32:57Yeah, I do think I wonder if this scenario is any different if this extension had been signed before May 3rd May 20th. I I don't
33:05Yeah.
33:06I don't know if I agree with this still.
33:07No matter when it's signed. The issue with their failure to do anything to move forward on State Street is not sure.
33:14And I agree with Marvin, your point about the timing. The difference between May 3rd and extension on May 20th is justified on or honor before. That gives some grace period. I think the mayor's extension is unenforceable. But it's a side issue. For other reasons, yeah. Not for being late, but for not being approved by council.
33:34Yeah, that's
33:36So, this one again, I think both of these what we need I don't I'm going to come to you. Uh both of these I think what we need to do is have um an attorney council session. We have uh city attorney um and a council attorney both of those and give us some advice. Do you have any comments on this matter?
33:55No.
33:56Um processing and I'm also like prior to society, I'm also stuck on the the clause from the school district when they sold the land and how, you know, our opinion in doing something separate than what is in that sale could also put us in a liable situation um because it's different than what that contract that sale with the school district says. So, I think that's something that we also need to keep in the front of our minds cuz that was set up for more legal action on top of what was already there.
34:29Could you say that again in a different way?
34:31Uh maybe.
34:33[laughter]
34:33You spoke very low there.
34:34Um
34:37the terms of the sale or the um saying that you couldn't use the land the city it would forego unless they used the land for parkland recreational.
34:48That one so but that the city
34:51Give me the record.
34:52Yeah, the city basically they deeded it to the city
34:56with right conditions with the condition and if the city now declares that to be official parkland where it didn't already have that designation, that makes me nervous that that would open us up to like the council aggressively intervening with blocking the project from happening and that would open us up to further litigation on top of what's already being litigated. Does that make sense?
35:19I understand. Okay.
35:21Yeah. So to just the point that Jason brought up about the Article 78 and just to be totally transparent, I'm not in favor of the most recent project. So I'm just want that clearly understood in my position, but in terms of the Article 78 that the argument that Jason brought up about how it could be unfair and tactic and whatever, I you you that's making the assumption that the Article 78 is the only compelling argument that could stop that from closing. Yeah, there are a number of so if you don't actually know that the Article 78
36:01really have that impact and isn't just part of a whole mishmash of other unresolved issues. So I think the whole picture, you know, speaks towards this project and I'm not a supporter of the project,
36:16Right.
36:16you know, not going through.
36:20Are there any hands raised online?
36:22No.
36:22Okay. Anything else for us tonight?
36:25Um no, I don't think so. I just I guess the last thing I want to say is that when we got that rain uh the other day, our street flooded, the intersection was impassable, the road was closed for most of the day.
36:37How long did it How long How long did the flood
36:40Most of the day. I mean, you could ask DPW to know exactly when they closed and opened it, but I can tell you that from my neighbor's uh door camera, the like the flash of the flash flooding was 15 minutes. It went from rain rain rain going in this direction to flood coming this direction that overflowed into her front doorstep in 15 minutes.
37:01Yeah.
37:01And I mean, it was in the hour of 6:30, so it's at the time when people were leaving their house to go to work, but you know, it's not a surprise. I don't support this project. I think there's a number of reasons. To Lloyd's point, there's a number of reasons to get out of this project, and I'm presenting you with a few, and there are a few others, and there's a few beyond that, like the payment to the school never being authorized, which I think is a something the council needs to address.
37:25That's correct.
37:26Yes, Mr. Mayor.
37:26Do you know about that?
37:27Yes. One last point if I may. I I I think you can go ahead [clears throat] with the motion to declare it as parkland, and I think that's an action that can be taken today, whether it's
37:38No, it's not ordered.
37:39No, it is not.
37:39Well, we referred it back to the board and recommended
37:43We we will seek legal counsel.
37:46Fair.
37:46[clears throat]
37:47Um, proceed accordingly. Thank you so much.
37:50Thank you. Thanks for having me.
37:53All righty. So, um Next, we have three um amendments to code that we got from um Nick Fox, our new uh code enforcement officer. Um Sorry, can we I'm sorry, but can we not have conversation? Um We can begin with uh 93 which is building permits.
38:29Okay.
38:30Uh we have 10 here.
38:34Okay.
38:34Excuse me?
38:35Shouldn't we have 10 here for this?
38:39We're reviewing it. It's going to go to the full council. We're just looking at this to see if anyone has any major questions.
38:47I do.
38:48Okay.
38:48Yeah, no. Unless I have any other questions for you.
38:51But it would be great to have a lawyer here to answer the questions. Just like
38:56I don't dispute that, but here we are.
38:58Okay.
38:59Um okay, so the demolition thing
39:03[clears throat]
39:04um what what do you want us to do here? Um
39:12It's a 93.
39:13Excuse me, again, 97.
39:1597?
39:16What, 97 or 93?
39:17It's a 93.
39:18I'm sorry. Hang on a second. I'm talking about the document It's but I'm sorry, it's supposed to be 93. 93.
39:29I don't have the code in there, man.
39:31What? Uh the the one that the one that goes with um What's the name of the document that goes with the 93 code?
39:42There's two. There's There's the city code, building permits, and then there's the amendment.
39:48Right, but I What's the electronic name of the amendment to 93?
39:52Building permits
39:53chapter
39:53Excuse me?
39:54Building permits CH93.
39:57That's that's the current uh
39:59City code chapter 93 amendment.
40:01That's what I'm looking at, I think.
40:04Where's that?
40:05In your documents, not in the email.
40:07No.
40:08Okay.
40:09Okay.
40:11So we need to process
40:13So I'm going to have to I'm going to have to go and find
40:16I thought they
40:17I'm sorry.
40:53City code chapter 93.1. So, what What this is about is for large projects to have an additional language. We're just adding language to the current chapter 93. Um, to allow for having a third-party reviewer for complex projects who would be uh the the payment would be by the applicant as an escrow, but it addresses the fact that um we have a very small code enforcement department um sorry. Um, something like [clears throat] you know, possible um the the hotel that's being built on mine important zone. Is that what you're talking about in
41:50City of Milpitas?
41:51Yes, exactly. Um, so this is a situation where we're adding language that allows for use of a third party which would be selected by the uh code enforcement department. I think it's very important that it not be something that the developer has to select. There has to do somebody that um our code enforcement officer chooses as a consultant.
42:16I think that was great except that I would love to have
42:20We understand that. We got We got the message.
42:23Okay. Um I have some experience with this and um special inspectors are often hired by the applicant. And they write a report that gets sent to the code enforcement. So, for example, be a specific trade, the electrical. So, instead of needing to even go through the city and us to collect kind of like the way the um planning board collects escrow. Um it's on the applicant to hire their own plumbing, electrical, whatever trade you want to designate, they hire that um engineering company, so to speak, writes um They They They write a report.
43:19Now, I am I I'm not comfortable with that in that I don't because the client in that situation is the developer. And uh I don't I question the independence. I understand
43:33is a field.
43:34I I understand that there are ethical standards of independence. I get that. But at the end of the day, the client is the developer. And the report is for the client. And I would really prefer to see an independent assessment. And still you could still do the same thing you're talking about now, but be the applicant's thing, but it has to be a uh company or an inspector that code um chooses, not the developer chooses. But I I think that my like that is very important. But I've written a lot of reports for clients that are, you know, independent. And it's a very difficult thing to maintain true independence
44:20when
44:21The money's different.
44:23you're being paid by the person for whom you are doing a independent review.
44:28Yeah.
44:28It's a very difficult thing.
44:30Yeah. I think it makes Well, Nick Nixon charge of this suite. He do as much work as he wants. But I I've more I've seen it more as specific trades.
44:41No, I can't agree.
44:42I don't I don't know that I would want to see a general overall like Nick be replaced by a company that um inspects the entire property.
44:53Perfect.
44:54Like trade by trade, but not general overall building.
44:59So, uh in terms of um
45:02But I didn't talk to Nick about it.
45:03Yeah. Um
45:06No, no. This would eliminate if he could still do that.
45:13I I think that what you're talking about could be accomplished here if this were uh made more specific. Cuz at the moment it's kind of like it's very general that the third party review is um it doesn't say for a focused review.
45:31Yeah.
45:32Is this what you're getting at?
45:34Or or if he doesn't intend it to be the entire project,
45:37Mhm.
45:38then maybe that's at least say that's what he intends.
45:41But okay, that would be pretty difficult.
45:44Yeah, I don't know companies that do that. I don't know There are no companies that do trade specific special inspections.
45:54So, again, this is one where um I think what we want to say to the full council, is this is some of the questions that we have here. Should this be trade specific? Uh are we talking about
46:13Does it need to go to full council yet?
46:14Should go back to safety.
46:16That's what I was saying.
46:18clarification
46:19Maybe maybe we should
46:20really legal about this? Is it just
46:22Yeah, I think that's
46:23I think it should go back to safety committee and ask Nick to break it down and explain to us like what else is in the field and what what are you basing this on? Have you seen other entities that do this large of a scale of an inspection or are you specifically asking for these local areas to be taken off of the code enforcement staff?
46:44Why don't you
46:44In these in these large scale projects.
46:46Only in the only large scale projects.
46:48Okay. So, I think that's a good idea. With some this one I don't know if I got this done. This one is Let me get my numbers
46:54So, refer it back to safety.
46:56Let me get the numbers up.
46:57Review and inspections is 93.
46:5993
47:02Goes back to safety.
47:04And that's the third party. But
47:08Yes.
47:09I find this quite interesting because while I'm not in favor of a city manager, it seems like we need some city centric point of view. [clears throat] Uh you know, where cities you know, input onto whether you know, this fits actually in and works within the overall city because there are many projects. So, it's kind of interesting in the term I'm not really in favor of a city manager, but I do think that the city manager would oversee and and see if this further development fit within and
47:42and that could actually work.
47:44We need a city planner.
47:46That's what I mean. That's what I mean.
47:47Can we stay on topic with
47:49I don't but I don't even I don't think so. I think that this is like this makes a lot of sense for him seeing what his department can handle and I think he if he just spelled out exactly what he's looking for, it doesn't need another layer of
48:03Okay. I would just say I'm just anticipating that a bigger
48:09I want something much bigger than what these large projects are. They don't fit.
48:15That is the question. Do they or don't they?
48:18But I think yeah, I think this body is this is what this process is for. I think it's doing it.
48:29So, the vacant building this is number 91. Um Let's see. Uh so, in my discussion um with Nick on this one, one of the concerns that he had, which he talked about at safety, was that the order in which the way this is currently written, um there are three choices for the property. The first choice that's listed is demolition. And so, this is really more a question of um reordering the priorities. The demolition should be not be the first call. So, that I don't think that
49:24as I read this, I'm not seeing it as um changing the options that an owner has, but more a question of um establishing what is the hierarchy here, and the demolition should be what you're looking at as a last resort. You know, that other options should be looked at first. That's how I read this.
49:48So, there's also big emphasis on plan. Whatever the person whatever the owner's going to do.
49:54Mhm.
49:55That that they inform the city
49:58Mhm.
49:58code enforcement
49:59Mhm.
49:59Yeah.
49:59about that plan.
50:00Mhm. I guess my only question there would be then like you know, if for example if the owner doesn't have a long specific plan that's not going to turn into something large like what is the approval process of like what does that entail like?
50:23I think they just want something like okay because this is such a uh you know, multiple choice sort of the place is falling down essentially. We can't rehab it. We can never rehab it. We should just take it out and and you get them the plan and what they're doing for that moment. And maybe I don't know. I guess
50:48The plan he wants to plan
50:50Yeah.
50:51flatten it
50:52Yeah. Exactly.
50:54make a make a lot of money. So what I'm saying is
50:57If they don't have that kind of plan or if they're if it if they're not looking to demolish but they don't have that much of a plan, what's the step in between them not being able to present a plan and having the vacant building? Like what is the the course of action that code enforcement would take?
51:15Well, he shows fine.
51:17We do we do have a there are 50 70 lots like I'm giving you the exact number. Yeah. We cannot have We haven't been enforcing it but you are not supposed to have a building that is vacant for You have to pay a fee if you don't have a vacant building.
51:32But there's there's something in there that is really strange to me. It says something about indoor the the doors being locked in the proper way or
51:42Yeah, that's correct.
51:44But what if the door is locked and fine with that, but it sit sat vacant for 7 years?
51:51There There are supposed There are There are fines associated with that, which which we have not imposed.
51:56It's not even here.
51:57Okay.
51:59But, I think he's saying he's got a way to prove a building is vacant. He I don't know if that's defined well enough in here, but he's mentioned um either been reported by neighbors
52:13Right.
52:13people who know it's vacant.
52:14Right, but if 91.3A addresses an owner shall register with code enforcement not later than 30 days after any building in the city becomes a vacant building, or not later than 30 days after being notified by code of the requirement to register. So, that where he is just changing the language in the in that section where the order of um what you should be doing in his mind was kind of backwards, because I mean it should not be the first option that you're thinking of.
52:47But, it it only starts with a letter from him saying, "I think your building's vacant."
52:51Oh, well, that's already
52:52Yeah, you can respond saying, "It's not vacant."
52:54Yeah, but that's Right, and that's everything above 91.3A is unchanged. That's where the registration process and and registration terms and minimum palms uh provided by code enforcement. Um and that the information that has to provide um and then it goes into section C where has these three choices where he wants to change the order of which those choices are being considered. So, I think this one I think is following that. Did you go to the full council? Or do you I don't think this needs direction.
53:31No, I I don't I The only legal question I have is about whether those fines that you you mentioned the civil fines were um considered tax or whether
53:42I mean if if what I was proposing Ken had a problem with it being if if we did payment in lieu of parking, we changed the code so that there are requirements about parking for development and then we you know, we had not a fine, not a tax, but we had a suggestion of here's here's an alternative to what to the building things. He still considered that a tax. So, why wouldn't he consider this a tax? But I don't know. Well, well,
54:21Instead of them being fines, could they be liens?
54:25Oh, okay, that's another thing.
54:27Cuz that could give a lot of strength.
54:29Yeah.
54:31I think that's the only place I got any legal advice.
54:34Want to do that.
54:35So, that's regarding this.
54:36We do have to get them to review all of this. Yeah, I don't think
54:40I don't think we can do this from that side.
54:41No, we can't do that.
54:42Okay. Um Can I just speak on this?
54:47Sure.
54:50So, I ordered the city on the vacant housing registry somewhere around beginning of the year and I got a response surprisingly enough that they had no records of any vacant properties. So, that was kind of interesting and uh coincidentally, there is another initiative that the county is embarking upon with Chris Brown and Partners for Progress where they're identifying county wide properties that have I guess three different classifications of disheveled or you know needing local properties and vacant in different levels. We don't have all the particulars, but there is a county wide effort that's been initiated and you may want to mediate with that.
55:39Mhm. That's all I have to say.
55:41I I think this would be very helpful and I think Nick has made a good effort to get the ball started on collecting that vacant list that is missing.
55:48Yeah. And there is actually a list of vacant homes.
55:51I'll pull it up here.
55:52So, I I don't I don't know what you know back in your department, but I know that there is a list.
55:58I'm pulling it
55:58It has been discussed in council.
56:0291-2 is what I was talking about.
56:05Oh, I just pulled it up.
56:07Oh, sorry.
56:07I'll just read it to you. It's very easy.
56:10But he's not remembering them.
56:12No, I know, but he should is what I'm saying. Is a building or a portion of the building which is unoccupied, unsecured, unoccupied secured by other than normal means, unoccupied unsafe, unoccupied has multiple housing or building code violations, illegally occupied. So, not nowhere here does it say that it's unoccupied yet secured.
56:43Uh I I went through that with him when he was working on this. Um
56:47Why is that?
56:48No, let me read it cuz I was focused on the amendment. Okay, he explained why that is the way it is right now. Um
57:03Does there
57:03All right, just a moment.
57:05And buildings that are secured.
57:07So, um There are definitions of unoccupied and unsecured. And a vacant building is any of the following combinations. It's unoccupied and unsecured. It's unoccupied and secured by something other than normal means.
57:27That's what I just read you.
57:29Yes, I know, but why not secured?
57:33Unoccupied and secured.
57:36That is not That I believe does not require registration.
57:41Why? So, that's what I'm asking.
57:47I know an example of that is 111 Green Street was purchased by a corporation 2 years ago.
57:54Mhm. And it's sitting empty and the lock on the door.
57:57Looks like a regular house unless you go up to
58:00I can explain the answer to you.
58:03I And the one that I talked to you about is falling apart, but it's secured. So, um
58:10I own a property. I am an attorney. It is secured and in the proper fashion. Um I am not living in it. It's in the market. I maybe I'm going to sell it 3 years out. I think Sorry, I think that that's property values are going up. I think I'm going to sell this a couple of years from now. I actually have the rights as a property owner to do that. You cannot force me to use my property. That's why unoccupied and secured
58:42But, I'm I'm You asked
58:44I I know, but I'm going to say something that is very valid and the longer a property sits without someone living in it, the more likely it is to completely disintegrate and fall apart.
58:58That's fine, but I'm explaining to you the logic as to why they're not included in this category because you cannot compel somebody.
59:08But, could there be a time period?
59:10I don't think you can compel people to do that.
59:13I'd like to cuz that's it it hurts neighborhoods.
59:16It does, but doesn't that fit into what we were just asking about the other like that's the plan, right? That's similar where if you set a time
59:25No, you see now you see this is the issue here is that um a building that is unoccupied and secured in a normal fashion is not considered a vacant property. It's not registered. You can own the property and have it sit there
59:41That's the problem.
59:42so long as it is a problem so long as you secure it.
59:46Right.
59:46Right. So, it's not a problem. You're paying your taxes. There's no There's no code violation going on with this property. It's all fine. It's just that
59:55You know, because as as a city I I would say like the timeline matters because
1:00:01Okay, but
1:00:02you may own the property, but what is it doing?
1:00:05So, that's we can we can bring that up for advice from uh legal but
1:00:11That's what she's asking.
1:00:12That's fine. No, we can get advice on that, but what I was answering was the rationale of why that is not considered a vacant property.
1:00:20Probably that it Because I feel owner's rights. Okay, I get it, but you're you're actually doing something that like Jason says destroys the neighborhood. Also, you know, makes a real problem for people.
1:00:36But I I also think that there's a you know, and that when I when I asked him the very same question, um do I think it is a good thing or a moral thing to do to have a property and have it sit vacant when people out don't have homes? No, I don't.
1:00:50Well, that's I mean that's our role as council members. If we get the legal advice that we if we as council members and representing our constituents think that in the character of this city it's something that we need to do something about, then
1:01:02So, we can we can get advice we can bring that up as, you know, what are our legally what can we do in this in New York with regard to a property that is maintained, no code violations, things like that. We can do that. And that was actually That's exactly what I was going to ask you.
1:01:20You were told that it has a code violation for the retaining wall at the front is falling down. to the amendment that the one that he is proposing which is changing the order. Do we have any problems?
1:01:43The mayor
1:01:44So, this we think should be done but on that So, this we can send forward.
1:01:48Yeah, but we might also
1:01:51What can we do but the They can tell
1:01:54They can tell security.
1:01:55On our two parking
1:01:56Yeah.
1:01:57Okay, what what authority do we have? Okay.
1:02:13I'm taking an aspirin on the way.
1:02:15Sir?
1:02:15So, while you're taking an aspirin I'll get this company. I have a
1:02:19Oh, yeah. I'm doing I'd like to have you listen to him.
1:02:21Yeah, yeah. Let me concentrate.
1:02:23Okay, go ahead.
1:02:25It seems to me what we're doing is creating another classification of property that we're looking at handling in another way. I don't know what you'd call it. You know, unproductive property or something like you're non-contributing and I think this is largely what we experienced with Galvin and a lot of the complaints about Galvin. So,
1:02:46I just thought of another one that's number 12 Park Place just down from Grove Street. The building has been sitting for years theoretically for sale but just empty.
1:02:55Mhm.
1:02:57It's the firehouse.
1:02:58Next to the firehouse, the next one.
1:03:01Between the firehouse
1:03:02Between the firehouse [clears throat] and the
1:03:03I think the firehouse is on contract.
1:03:05in the hotel.
1:03:06Mhm.
1:03:08Okay, so one more?
1:03:08One next is 97. Um Trying to find that one. Uh, this is demo. Uh, chapter 97 is demo codes. Anyone to Let me see what he wanted to do on that one. And then under demo. So, in this one, um, when he was going through this, um, the current language, uh, if there's no party wall, puts the onus on the property owner whose building is not being demolished. So, I'm demolishing a building, my next door neighbor's property, um, it's his problem to figure out the security of his building that might result from my demolition, which makes no sense.
1:04:15So, this this This is to change that scenario. The other thing that's in the current code, uh, does not speak to, um, the condition that a site must be left in if you are demolishing a building and not building anything on top. So, this is where we have situations in different parts of the city where something is demolished and the lot is left like it's basically a pit and nothing is done with it. So, what he was trying to accomplish here, um, was to, um, put it on the person doing the demolition, uh, to be responsible for,
1:04:54uh, the safety of the buildings that that might be impacted. Uh, and so that's why it says, "In all cases involving demolition of a building or structure, it shall be the responsibility of the property owner and or contractor." The The previous language specifically said, um, that if there was no parking wall, it was the responsibility of the person who had the house next door, which is crazy, but and the other addition that he wanted to was relating to the side itself to add language that it be backfilled,
1:05:30drainage, no exposed foundations so that you do not have basically a flying property. So, I think I didn't have any issues with with any of those.
1:05:41I I don't either except that I can in my mind envision a couple of places where there's only two walls left of the original foundation and they are actually acting as retaining walls for other properties and then there's nothing on another side. So, in that case, it I mean, would you backfill it so that it's a hill? I don't know.
1:06:10I found out that he knows
1:06:11Do you know what I mean?
1:06:12Well, Victor in the one at 7th and State and that is has that situation.
1:06:18Yeah.
1:06:18But, I think in that case, Nick would see that as being backfilled, fence taken down, and then what is retaining would actually be underground now.
1:06:29Yes. But, it would it would then become an incline. It wouldn't be a
1:06:35No, no, that would make it flat in that case. It's a pit right now. Fill in the pit is what he's saying and then the fences could come down.
1:06:43That's part of what he's trying to address here is that people
1:06:45No, I get it. I get it, but I'm just worried that people are going to look at language and go, "Well,
1:06:52Well, theoretically, if you demo that retaining wall, you're going to damage the neighbor's property.
1:06:56Exactly. That's what I'm saying.
1:06:58So, you have to have a good plan for your demo. Still, I don't I don't think this could go through without
1:07:05So, can we take this one to the full amount? Okay.
1:07:08I'm second.
1:07:13Okay. Anybody on the line? Ronald? Any other Any other Sorry?
1:07:21It was so boring even Ronald left.
1:07:23[laughter]
1:07:24I'm good. Thank
1:07:26So, can we have a motion to adjourn?
1:07:29Second.
1:07:31Excellent. We are adjourned. Thank you.

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