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Jan 30, 2019 10:25 AMPublication: The Southampton Press

Schneiderman Sees Room For Improvement In Southampton Town ZBA Procedures

Southampton Town ZBA Chairman Adam Grossman. VALERIE GORDON
Jan 30, 2019 11:11 AM

After months of criticism from local community members and environmentalists about the process through which the Southampton Town Zoning Board of Appeals reaches its determinations, Southampton Town Supervisor Jay Schneiderman this week said he sees room for improvement in the board’s decision-making process.

In recent months, following the approval of a luxury golf course resort in East Quogue, the regulatory board has been accused of violating the state’s Open Meetings Law, which requires public boards to hold all deliberations in public.

The ZBA members generally do not deliberate at all—a process that Mr. Schneiderman said differs largely from its counterpart in East Hampton Town, and one he now says he would like to see change. The supervisor said that the board should have more public deliberations, possibly in the form of a work session, and should include dissenting opinions in final written decisions.

Additionally, the supervisor said that the board’s practice of having board members, instead of assistant town attorneys, write minor and routine decisions should change—all decisions should be written by an attorney, he said.

Mr. Schneiderman also suggested that the ZBA may be too lenient in approving applications and recommended that the regulatory board deliberate with the town’s Planning Department before granting relief from the town code.

In a recent lawsuit filed against the town, environmentalists Dick Amper and Bob DeLuca noted the ZBA’s lack of public deliberation before issuing decisions and said that the board disregarded certain sections of town code when approving the Lewis Road golf course resort proposal. They argued that the ZBA board members were abdicating their responsibility as appointed board members to be publicly transparent.

While Mr. Schneiderman said he continues to disagree with the position that the ZBA’s decision was in violation of the state’s Open Meetings, or Sunshine Law, he did agree that deliberation is healthy for a government body—and is largely missing from the ZBA process.

The ZBA members rarely deliberate on applications, in a policy that dates back years. Rather, the ZBA holds a public meeting to hear from those in support of or opposed to a proposed application, and at a later date publicly votes on a written decision. Depending on the complexity of the application, that decision is either drafted in advance by Assistant Town Attorney Kathryn Garvin, or by a single ZBA member assigned as lead to the case.

Typically, for a controversial application, Ms. Garvin sends a private email to each individual board member, asking where they stand on an application, and board members respond with a simple “yes” or “no.” Then, the written decision, which is strictly derived from the testimony submitted by attorneys arguing in favor of or against the application, is prepared by the attorney, and a public vote is held.

Both Mr. Schneiderman and ZBA Chairman Adam Grossman have agreed that since the board does not typically engage in deliberations, there is nothing to be made public—and therefore the board members remain in compliance with the letter of the Sunshine Law.

The executive director for the State Committee on Open Government, Robert Freeman, argued that the decision-making process does not comply with the spirit of the law, however, which states that the public has a right to see not just the final decisions but all discussions and deliberations that led to them. He said that controversial topics before government bodies should be discussed publicly—the point of the state’s Open Meetings Law.

Mr. Schneiderman said on Friday that he intends to sit down with Mr. Grossman, as well as Ms. Garvin and Southampton Town Attorney James Burke, for a closer look at the current process.

As a former member and chairman of the East Hampton Town Zoning Board of Appeals, he said that the board should consider holding public work sessions, similarly to the East Hampton ZBA, to discuss the ins and outs of an application prior to voting.

“I think, in general, it’s healthy to hear other people’s opinions—you learn from other members and their perspectives, ” Mr. Schneiderman said.

He admitted that it would take longer to reach a decision, but, more times than not, it would be a better decision in the end.

Work sessions would also eliminate the need for Ms. Garvin to poll the board members individually via email in the event of a controversial decision.

“I think that you end up with better decisions by having that deliberative process,” he said. “In the case of ‘The Hills,’ had they had a deliberative process, would it have led to a different decision? I have no idea.”

On Friday, he suggested that Mr. Grossman observe the East Hampton Town ZBA’s deliberative process at a work session to gain perspective. However, the supervisor stressed that he would not be instituting his recommendations statutorily—the decision to change procedure would fall under the purview of the chairman.

Mr. Grossman intends to take full advantage of that. On Tuesday, he said that while he is open to suggestions, he does not feel a separate work session is necessary for board members to publicly discuss applications. “I don’t see us doing things that way,” he said.

Instead, he proposed having open discussions at the end of monthly board meetings, “which, in fact, is something that may well be happening shortly,” he added.

“The process can always be analyzed and looked at,” he continued. “It’s a healthy thing for a board from time to time to review its operations to see where they can make improvements, and this has been an opportunity do just that.”

While the decision to make improvements to the board’s deliberative process will ultimately be up to Mr. Grossman, Mr. Schneiderman said that he is not willing to compromise when looking at the board’s common practice to allow board members, rather than the attorney, prepare written decisions. “That’s bad practice,” he said. “I want to stop that.”

Mr. Schneiderman stressed that all decisions, not just those that could potentially lead to litigation, must be written by the assistant town attorney. “That’s something I feel very strongly about,” he said. “The zoning board members are not equipped to write their own decisions.”

However, according to Mr. Grossman, writing ZBA decisions has been part of the job description for the past 17 years. In fact, he said that fewer than 20 percent of the board’s decisions—typically, they are those that are controversial or highly complex—are currently written by Ms. Garvin.

Instead, each application is assigned a lead board member, who is then tasked with writing the decision based on consensus. Depending on the complexity of the application, he said, decisions can take anywhere from two to five hours to complete.

“And that’s just for one,” he said. “If Jay wants to change that, it would require a lot more work on the town attorney’s office.”

Southampton Town Attorney James Burke and Ms. Garvin did not return phone calls this week.

While Mr. Schneiderman said he felt strongly about who writes the final decision, he was more lenient when considering whether the written decisions should include dissenting opinions.

In the case of the Lewis Road golf course resort, five members of the ZBA voted in favor of the project, and two—Mr. Grossman and board member Helene Burgess—were opposed. The written decision dove deep into the rationale behind those in favor of the 18-hole golf course in East Quogue. But community members were not informed of the reasons that led to Mr. Grossman and Ms. Burgess’s opposition—and they have declined to discuss their votes.

Again, Mr. Schneiderman pointed to his experience as a former member of the East Hampton Town ZBA, noting that in cases where voting was not unanimous, those opposed would write a dissenting opinion to be included in the written decision. “I think that’s important to the decision,” he said.

He added that if the decision was to be challenged in court, there would be no confusion as to why or how the decision was reached. Also, those opposed to a proposed project—board members and the public—could read the decision and “know that they were heard,” Mr. Schneiderman said. “That their argument didn’t fall on deaf ears.”

Additionally, he said dissenting opinions could also offer what he called a “historical perspective.” He explained that regulatory and legislative boards often refer to previous decisions when faced with similar applications.

However, while Mr. Schneiderman said that transparency was important, he explained that dissenting board members would not be required to include their rationale in the final decision. “Really, it’s up to the member,” he said. “I like to hear both sides of an issue. I think the public wants to know, too.”

Mr. Grossman was supportive of the idea, but agreed that it should not be required and solely up to the discretion of each board member.

On Tuesday, he again declined to offer his rationale behind voting against the golf course application. “I don’t necessarily want to jump right now to starting that change in process via telephone call,” he said. “When we’re talking about an application that’s already in court, that gives me a little bit of pause. Beyond that, we’re absolutely open to suggestions in terms of making changes.”

Mr. DeLuca referred to those changes as a matter of responsibility.

“The point is that it’s good government for the public to see the way decisions are made,” he said earlier this month. “I would like to know what my colleagues were thinking, because it might inform my decision. It’s just good practice to have discourse.”

He added that Mr. Schneiderman, as well as the rest of the Town Board, should be just as interested in ensuring that their appointed regulatory board members are doing their due diligence.

“How could they know that if the only thing that they know is that someone gets an email and responds ‘yes’ or ‘no,’” he asked. “That open discussion adds credibility to the process.”

Mr. Grossman said that he was “not glued” to the ZBA’s current practices: “I’m open to suggestions.”

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Jay do us all a favor and don't run in November and go work for the ZBA so we as tax payers don't have to let you make big decisions and horrible ones for us. I pray this guy does not get re elected. He thinks he is mr. powerful and can overturn whatever he wants and just give give give to his business buddies. Guy makes me sick
By watchoutnow968 (56), Southampton on Jan 31, 19 8:44 AM
Thank you Jay !
By marybmary (54), east hampton on Jan 31, 19 10:33 AM
Monday morning quarterback. Typical politician...
By knitter (1941), Southampton on Feb 6, 19 8:56 AM