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May 12, 2013

I am asserting that Paul Schartzberg, as acting chair of the Gardiner ZBA, misrepresented a vote of that body in official documents, and then stonewalled, along with supervisor Zatz in an attempt to distort the truth.  Here’s the timeline to back up my claims.  You decide.

  • In March of 2012, our neighbor Zachary Baum went to the town of Gardiner to get a subdivision of his 14 acre property.  It is a flag lot and does not have the proper setbacks, road frontage, etc. so Baums needed to go before the Gardiner ZBA to get variances to do the subdivision.  Additionally, when the Baums subdivided the larger property 12 years ago to create the current 14 acre lot, there was a condition put on the property then that there would be no further subdivision without having the necessary 250’ road frontage…which they did not have.  When I bought our property right after that 12 years ago, I was assured at the time that the Baums could not further subdivide behind me, and that was a consideration in my purchase decision
  • March 20, 2012 – was the first time Baum was in front of the ZBA, my partner Bill Barrett and I attended that meeting.  A public hearing was set for the April 26  ZBA meeting.
  • April 26, 2012 ZBA Meeting.  Bill and I attended.  I spoke out against the subdivision for a number of reasons.  Mike Beck, Chair of the ZBA, presided over this meeting. The public hearing was left open until the May 24 meeting of the ZBA.
  • May 24 meeting of the ZBA – I was out of town on business, and I asked Bill to  video the meeting using my Flip Video, which he did. Baum was the last item on the agenda for the night. Mike Beck was not present, and Paul Schwartzberg was the acting chair.  Also present for the ZBA were alternate Joe Katz, Ron Cohn, and Peter Beuf, and Margarete Wagner, ZBA secretary. Laura Won Pan had recused herself and left the building.  Of course Zach Baum and his wife were also there. The ZBA closed the public hearing, and went into lengthy deliberations where a number of options were discussed, including setting further restrictions as condition of allowing subdivision.  Finally, a motion was made by Ron Cohn, seconded by Joe Katz to grant a front yard variance of 25 feet and a 50 ft road frontage for a flag lot development, with the condition that there be no further subdivision of the property.  It carried 4-0.  The meeting then adjourned (or at least Bill was told they were “done” when he asked, and everyone got up from the table to leave.  Bill heard Margarete tell Baums that he needed to bring updated maps, (with the condition), to the next Planning Board meeting.
  • June 19, 2012. Baums were scheduled to appear at this Planning Board meeting to explain their request. A public hearing was scheduled for the July 17 Planning Board meeting.
  • The official “Notice of Decision – Area Variance” from the ZBA regarding the Baum application, by town law, is supposed to be filed within 5 days of the date of the decision.  I contacted Margarete Wagner numerous times over the next weeks to request the official document, but it was not officially filed until about 6 weeks later, when it was sent to me by Mike Beck of the ZBA on June 30, saying it was filed with the town clerk on June 26.  Curiously, the official document, written and sworn to be accurate by Paul Schwartzburg as acting chair, contained a record of the vote by the ZBA, but no mention of the condition against further subdivision that was also part of that vote.
  • July 17, 2012 Planning Board meeting, public hearing on Baum.  I attended, but unfortunately there were a number of contentious items on the agenda ahead of Baum, so the room was packed and I could only get a seat in the back.  I did not have good video potential, since the camera audio has limitations, and I was too far away.  When the Baum item came up, I presented a written document, which I also read, about my reasons against the Baum subdivision being granted.  I made mention at the end of the documents that the “Notice of Decision” document was inaccurate, and that it had left out that there was a condition of no further subdivision that was part of the vote.  I had uploaded video of parts of the April and May ZBA meetings, and particularly the last two minutes of the May meeting that covered the actual motion and vote, to a platform called “dropbox”.  I included the link to the video in my document to the Planning Board.  The video was about 17 minutes long.  What I did not know at that time is that the Dropbox platform only allowed for 15 minutes to be uploaded, and it had cut off the last 2 critical minutes when the vote occurred!  This is vitally important to what happened after that.  Mike Boylan, chair of the Planning Board, based on the information about the missing condition in the ZBA ruling, kept the public hearing open until the July meeting, and said he would contact Paul Schwartzburg for clarification about the condition.  Mr. Boylan at that time also asked Zach Baum if he understood that his variances had been granted with the condition, and Baum confirmed that that was his understanding.
  • On August 7, there was an email to Mike Boylan from Paul Schwartzberg, in response to request for clarification of the ZBA decision in the Matter of Baum and in particular the question about if there was a prohibition of future subdivision as a condition.  Schwartzbergs’ reply was “The ZBA discussed imposing such a condition but decided it was not necessary, as none of the three lots  that would result from the subdivision could be further subdivided to create an additional new  lot that would conform to the zoning code’s area requirements.  As a consequence, a prohibition on future subdivision was considered unnecessary.  Should the Planning Board determine such a restriction is necessary or desirable, the ZBA’s decision would not preclude the Planning Board from imposing such a restriction.”  The email was forwarded to me by Mike Boylan.  Now Schwartzberg was lying about the vote.
  • On August 12, I forward Schwartzberg’s email with a reply from me to the Gardiner Planning Board secretary Margarete, Mike Beck, copying Mike Boylan.  I again questioned how the reality and video of the vote could differ from the written decision which was then verifed by Schwartburg.  I included again the dropbox link of the video, still not realizing the critical vote had been dropped.  I got no reply or explanation.
  • On September 1, I emailed Paul Schwartzberg again, having finally realized that the critical piece was left off the video upload.  I then took only the final 2 minutes of the meeting with the actual vote, and uploaded that to Youtube.  The email copied to Mike Beck, Mike Boylan and Margarete Wagner.  I again asked him how the video, which I’d linked to, showed the vote containing the condition, yet he continued to insist that it did not.  I simply wanted an explanation….this was where Schwartzberg if having made a legitimate mistake, had an opportunity to walk it back and correct it.
  • On September 4, Schwartzberg replied.  He copied Mike Boylan, Mike Beck, Laua Wong-Pan, Joe Katz, Peter Beuf, and Ron Cohn. – basically the entire ZBA.  He wrote “My recollection, and the recollection of the ZBA members present at the vote (as well as the ZBA secretary) is that while the matter of restricting further subdivision was discussed, it was subsequently rejected as there would need to be an area variance to subdivide any of the three lots that would remain after the present subdivision.  A restriction as a condition of a variance therefore seemed unnecessary as the landowner would not be able to subdivide anyway without additional action from he ZBA or some other event taking place (such as acquiring additional land from an adjacent family member)  that would allow him to subdivide and create an additional lot that conformed to zoning.  In writing the decision I was only the messenger – the decision was circulated for review and approval by other ZBA members prior to its filing.  After you first raised the issue, the question was again circulated and was subsequently discussed at a ZBA meeting.  Again, all the members agreed that our decision did not restrict further subdivision.  After that meeting I wrote the response to the Planning Board. I have listened to the video as best I could hear and it does seem to show a subdivision restriction as part of the resolution.  However, the video appears to end while the topic is still being discussed.  Please provide a full tape so we may determine whether the decision was modified subsequent to the tape’s ending or if the filed decision and all the ZBA members recollections did not reflect the motion that was ultimately voted upon.  Upon review of that tape we may determine what, if any additional ZBA action is appropriate.”
  • He clearly had viewed the Dropbox video, not the new YouTube video of the vote, and probably felt he was in the clear.  Instead of signing off as a ZBA member, he put his title as “Attorney at Law”, possibly meaning to intimidate me?  I wrote back again the same day, saying that while there was a great deal of discussion, the video contained the final motion and vote and resent the 2 minute video.  That was the last time I heard from Paul Schwartzberg until I saw him at the Ethics meeting on February 26, 2013.
  • At some point in time here, my dates are fuzzy, I realized I’d never requested a copy of the ZBA minutes for the May 24 meeting, which I then did.  The minutes also did not contain the condition of no further subdivision as part of the vote.  One document might be an error, but not two.
  • At the next September Town Board meeting, I brought the issue up informally during the “Privilege of the Floor”, as a potential problem, and  town board member Carmine Mele volunteered to look into it.  I got an email from supervisor Zatz on October 4 asking for specifics about the date of the ZBA meeting when the vote took place, and I supplied them. I head nothing after that.
  • On October 21, I then emailed Carmine and copied Zatz, Rich Koenig (another town board member), Beck, Schwartzberg to get an explanation update, and the reply from Carmine was “Pam, we have spoken to the ZBA and while they feel there was a subsequent broad action to lift the bar on future subdivisions, they recognize the confusion set up in the record and should be preparing a clarification memo for the town board. I will share that as soon as I see it. In addition, you should be aware, but if not will state here, that the ban against future subdivision is in place from the planning board.”
  • I did know that at the August Planning Board meeting, they had put the condition in place on the Baum subdivision when they approved it.  It still didn’t explain why they were doubling down and saying that it was never included in the ZBA vote. I waited for the “clarification member” to the town board, which never arrived.
  • Novemer 24, I again wrote to Carmine asking for an update, and got no reply.  At some Town Board meeting, not sure of the date, I asked about it again in the “Privlege of the Floor”.  Carmine said he had listened to the video, and to him it clearly contained the condition in the vote. He spoke to some ZBA members and got some vague info about the ZBA members having discussed it at a later time when they decided it was not needed.  No action was taken by the town board.
  • Mike Boylan, who I’d made aware of my severe frustration, and particularly since I’d never once been contacted by the ZBA chair Mike Beck about the issue, asked Mike Beck to call me.  Beck did some time the first week in December to my recollection.  We had a long (hour) discussion.  He had viewed the video, and seen the documents and double down by Schwartzberg about the vote, and could not explain it.  He asked me what resolution would make me happy.  I said the “truth”, and that the official records be changed accordingly.  I let him know that my next steps were to file an Ethics Complaint against the 4 ZBA members.  He implied that they were aware of this, and that even if I did, they would claim that they changed their minds later about not needing the condition after all.  To me, that would be just as bad, because they would have had to do that in an illegal board meeting.    He said that he would speak to the ZBA members and see if, at the next ZBA meeting in December  (third week of the month) he could have them come up with language to change the records that I could agree with, and that he would get a draft to me.  I assumed that this would be done, but the meeting was cancelled, and I heard nothing more from Beck.
  • That was the last straw.  On December 26, I filed with ethics complaint with the town clerk, and copied Mike Beck.  The complaint, against the 4 ZBA members who voted, charges that “In a May 24, 2012 “Notice of Decision-Area Variance” in the subdivision application of Zachary Baum, the above members of the ZBA deliberately mis-stated the true outcome of a vote, leaving out that the vote included a condition to be placed on the applicants recorded documents against further subdivion.  When in September 2012 the ZBA members above were asked by the Planning Board to verify the outcome of the vote, they all once again confirmed that no condition was part of the resolution.  However, a video of the May 24 vote showing that the resolution contained a condition and is found here “  Within hours, Mike Beck got back to me with an email having suggested language changes…however none of them were what actually happened, and it indicated that the vote was 3-0, not 4-0 the way it actually took place.  Did I mention that sometime during this fiasco Peter Beuf quit the ZBA?  Since his suggested language clearly was not acceptable, I didn’t bother to reply.
  • On December 28, I got an email from Carl Zatz.  He asked if I wanted to add to the complaint that the town had done some investigation into the matter, and I said no, since there was nothing formal done and no resolution anyway…..and to leave the complaint as is.  He said he was forwarding it to the Ethics Committee chair, Jon Simonson.
  • In mid January, I got a call from Simonson, saying the Ethics Committee needs to meet once a year and have an organization meeting and they were planning for Jan. 30.  I said to count me in, and asked if he had received the complaint from the town, which he had not.   I called town hall about a different matter, and spoke with Michelle Mosher , town clerk, and asked if the complaint had been filed yet.  She checked with Zatz, who was there and I could hear in the background, that no he had not yet, but would do so.  When I learned from Simonson days before the Jan 30 meeting that he had still not gotten the complaint from Zatz, I asked Carmine Mele to personally refer it to the Ethics committee, which he did.  I felt that I as an “officer’ of the town on the committee myself could technically refer it, but wanted to make it as official as possible.  I believe that if Carmine had not sent it to Simonson, it never would have been sent from town hall.  The Ethics law says that the Town Clerk is supposed to forward it, so Carl will probably throw Michelle under the bus if anything is made of it.  Makes you wonder how many other ethics complaints never see the light of day.  I’ve been on the committee since Feb 2010, 3 years ago, and there have not been any complaints to investigate in all that time?
  • January 30 – the organizational meeting, where the rules were discussed, and the complaint introduced.  Since I had no conflict of interest, I didn’t need to, but I announced that I’d voluntarily recuse myself from the active discussion, deliberation, and vote, just to keep the appearance of being above board.  Right from then, certain members not only demanded that I not participate, but that I leave the meeting altogether.  Jon said that they needed to keep the meeting open and public, based on the open meeting laws.
  • So, at the next meeting, February 6, in the “public” meeting, they took my “testimony” and Bill’s, since he was the only member of the “public” in attendance.
  • Another meeting was scheduled for February 19, when I was in Phoenix on business.  They were to invite Margarete Wagner, Joe Katz, and Ron Cohn to testify. Bill attended and they voted immediately to go into executive session, and had Bill leave.  They did let him know that there would be another meeting on February 26.
  • When back from Phoenix on Feb 25, I emailed Jon for verification of the next meeting date, time, place, etc., and also mentioned that I would like copies of the audio testimony taken at the 2/19 meeting.  He emailed back, saying in essence that the committee had voted me off the island, so to speak, that on the opinion of the town attorney Paul Keller, I should not attend any more meetings as they would be in executive session, and that I should not be there.  No offer of the audio was made.  He said if I felt differently then I could attend the 2/26 meeting and state my case, and the committee would vote on a decision.
  • I went to the 2/26 meeting, and demanded that it be “public” first before they went into executive session to hear testimony from Schwartzberg and Beck who were already there.  An agenda that I had not seen, I assume it went out to the full committee except me, said the committee intended to deliberate and vote that night.  I insisted on reading minutes that had been sent to everyone else but me previously, so that they could be corrected and voted on.  They then went into executive session, and I voluntarily left.  That was a mistake on my part.  However, I was thinking if that the committee ultimately voted to take further action, possible criminal, then my keeping away was the right thing to do.  However, at this point, I just want to hear what the three remaining ZBA members, particularly Schwartzberg, have to say about the matter. It was clear that I was being left off of emails sent out to the committee.
  • Well, did I mention that I was voluntarily recusing myself from some testimony, voting, etc….but not to give up my rights as a committee person.  I called and spoke next day with Robert Freeman, one of the expert attornies at the Committee for Open Government, and expert on the open meeting law.  He confirmed that I had no conflict of interest, that I had every right to be in all meetings including executive session, and to have same access to materials and recordings as every other committee person.  I emailed Jon Simonson the same.
  • Since the 2/29 meeting, I’ve emailed Jon twice asking for results of the meeting, next steps, and copies of the recorded testimony with no response.  I have two calls into the committee secretary (who I know personally), who has not responded.
  • On March 6, I got a lengthy email from Jon Simonson, basically saying that in his opinion,  I had no rights to the ethic committee information, and my response was  “Thank you for your detailed response.  With all due respect, Open Meetings Law Section 105 Conduct of executive sessions, (2) states “Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.”  My voluntary recusal to participate in deliberations, take part in the actual vote, and ultimately attend when witness interviews took place did not extend itself to written minutes, written decisions, audio recordings or any other actions of the committee in or out of executive session.  If the committee feels otherwise, please point me to the point of law you base it on.  Therefore, I look forward to being included in all committee email correspondence.”  I never got a reply to this email explaining on what basis in law they were relying on.
  • On April 15, I formally appealed to the town board based on my rights under the Open Meetings Law. While the town board, by law had 10 working days to respond to my appeal, they didn’t act until the next town board meeting on May 7, at which time they denied my appeal to access the records.  Carl Zatz read out several documents during the meeting, which I have requested copies but have not received them as yet.
  • The Town Board received the formal decision from the Ethic Committee sometime in early April.  Of course I do not know the results as I’ve been left out of the communications.  The town board will keep all of the results of the ethics board deliberation secret.  However they do have to act based on that decision at some point.

The big question is…why?  Why would some members of the ZBA, and I believe it was specifically Paul Schwartzberg as acting chair, do this, and why would they not correct the record when they had the chance?  What happened between the May 24, 2012 ZBA meeting when the vote was taken and 6 weeks later when the decision was filed?  Why the stonewalling by Carl Zatz/Town Hall? As usual the big issue is not the lie itself, but the cover up.  I have documents and all emails to back up what I’ve stated here.

As a practical matter, this is done. All that remains is whatever action will or will not be taken by the town board. But, I believe that official of the town have tortured the facts and stonewalled in getting anything resembling the truth out.   You decide.

3 Comments leave one →
  1. Rad Beranek permalink
    September 30, 2013 1:32 am

    Well, it is now news that the small towns in the Upstate area get populated with a carpetbagger type people and they take quickly to upper Connecticut / Rhode island corrupting localism. Gardiner and even New Paltz used to be described as sleepy communities, before drugs hit the SUNY hard and made it ranked nation-wide with Berkeley and Madison.
    That generation of junkies is now in charge, 25 years later, to give you a perspective. And the paucity of intelligence in the area can be proven easily : there is no public protest or perhaps a debate over the puerile pronouncements by Mr Rodriguez, Ms Rice, the Superintendant and Ms. Zimet before all. It all seems to be about some studied histrionics that has been approved by a communication professional agency as congenial to these voters. So now we have this whirl pool of names on the ballot every couple of years – I miss Nadine Lemon the most, by the way. But all these ^atzes? Give me a break = if there is a super who owns a liquor store In town, he should be corrupt, no?
    Well, if you have no questions of your own, you are probably benefiting from the elected corruptees, or you have no mind of your own.

    • k lynn permalink
      October 18, 2013 8:17 am

      i tried to enter the corruption i have proof they won’t let me post it i am liveing in a house with no certificate of occupancy that zats and vance condemmed but said they didn’t i have a copy of sticker i don’t even have heat a kerosene illegal freestand no baseboard in any room

    • GardinersRight permalink
      October 27, 2013 2:40 pm

      Many months ago, after Carl Zatz supposedly sold or got out of the wine shop in the hamlet and it changed names, I asked him point blank in a town hall meeting if he had any financial interest in the property. This was in relation to his conflict of interest in voting on anything having to do with the sidewalks in the hamlet. He flatly and categorically denied any. However just today, I picked up a marketing piece for Enthusaistic Guest House and B&B”, which states there is a “Wine Shop Suite, abovet he wine shop in Gardiner’s hamlet, on a road that is gate-way to the cliffs…”. This B&B suite is rentable for $255/night plus taxes. I would say that this is a conflict of interest for sure.

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