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Legal
Issues
Reorganization
of Town Legal Services
Town Board, 3/11/08 work session
The board interviewed representatives of four laws firms who submitted
resumes for the job out tax certiorari council and four firms for the job of
“outside” counsel. One firm was interested in doing both jobs.
Certiorari interviews
Oxman, Tullis,
Kirkpatrick, Whyatt & Geiger (also for outside
counsel)
DelBello, Donnellan,
Weingarten, Wise & Wiederkehr
Huff, Wilkes & Cavallaro
Bleakley, Platt & Schmidt
Outside Counsel
Grace & Grace
Zarin & Steinmetz
Kuczinski, Vila & Associates
Maron & Mazzanti
The interviews lasted approximately 15-20 each with the attorneys reviewing
their previous and current municipal work and explaining the strengths of
their firm. Most had informed the board about their hourly rates which ranged
from $175 per hour to $250 but when asked by board members if they were
interested in working on a retainer basis, they said yes and said that they
would submit figures after getting a better idea of the potential work load.
The town is still deciding how to reorganize its legal services department.
March
25, 2008 Work Session
The board met in closed session to interview several law firms.
April
15, 2008
The board voted 3-2 AGAINST a resolution put forward by Councilman Martorano to hire John Buckely
(the town's current interim town attorney) as the town attorney and a second
person as deputy attorney. Only Councilman Martorano
and Bianco supported the measure. In support of his
resolution, Mr. Martorano noted that eight years
ago the board discussed the pros and cons of in-house versus outsourcing
legal services and it was his decision at the time to support an in-house department.
The board then voted unanimously to appoint John Buckley as town attorney at
a salary of $95,000 a year and waive any residency requirements. The
resolution also states that the attorney cannot do outside legal work except
as related to his own personal circumstances.
The board also voted unanimously to appoint the law firm of Wormser Keiley Galef & Jacobs of White Plains as the town's tax
certiorari counsel. The firm will be paid a retainer of $1700 per month. Time
spent preparing for trials and for trials will be billed at $240/hour. The
firm replaces Roger Sirlin who had been the town's
certiorari counsel for about 30 years. Councilman Bianco
noted that there had been only one certiorari trial in 30 years; most cases
are settled without going to trial.
In a third resolution, the board voted 4-1, with Councilman Bianco in opposition, to hire Wormser
Kieley Galef & Jacobs
as the attorney for the zoning board and planning board meetings at a monthly
retainer of $2,250/month plus $240/hour for preparing for meetings, some of
which may be charged back to the applicants. The firm will also handle
litigation arising out of planning and zoning issues as well as other issues
at the rate $240/hour. If the firm covers town board meetings in the absence of
Mr. Buckley, it will receive a flat $600 per meeting.
In voting against the resolution, Councilman Bianco
pointed out that whereas a full time in house attorny
earning $100,000 would work for the town 40 hours a week, at $240 an hour,
the town would only be getting the equivalent of eight hours a week when it
used an outside firm, adding that it was always an unknown factor if the town
would be involved in litigation. Mr. Bianco also
expressed concern that when the town attorney could not attend board meetings
due to illness or vacation, the outside firm would be paid $600 a day to
cover for him.
Councilman Metz and Martorano both noted that
the appointment of Wormser Keiley
Galef & Jacobs was non
political and that the firm had responded to the RFP. They said that no one
on the board was familiar with the firm's principals.
Councilman Campisi noted that a firm with 30
lawyers provided the town with more expertise than relying on two in house
attorneys. He also said that the town had experienced some problems with in
house counsel but he did not elaborate.
April
22, 2008 work session
The board met briefly with three lawyers from Wormser,
Kiely, Galef and Jacobs,
the firm that will provide legal services for tax certiorari issues, planning
and zoning boards and other legal issues as they arise. One lawyer will cover
the planning board and certiorari work, a second will cover the zoning board
and a third, Dan Pozin, will handle town board
issues.
After Councilman Bianco reminded the attorneys that
Yorktown was a "government of five," Supervisor Peters told that
lawyers that all emails should be copied to all board members.
Councilman Bianco also asked the attorneys to take
a fresh look at the issue of whether the planning board should be requiring
more development proposals to submit Draft Environmental Impact Studies; he
said that in his opinion, more of these studies needed to be done and that
previous Conservation Advisory Boards had taken a more aggressive stand in requesting
that these studies be done.
Legal
Representation at Planning and Zoning Boards
March 24, 2009, work
session
Ms. Goldberg explained that when the board hired Wormser
Kiely last April to cover Planning and Zoning
boards, it was with the understanding that over and above the basic retainer
fee, additional legal costs associated with the meetings would be charged
back to applicants. Apparently, no mechanism has been put in place to recoup
these costs and the town has $60,000 in bills outstanding. The comptroller
has met with Wormser attorney Dan Pozin, the planning director and building inspector,
supervisor and town attorney in a effort to resolve
this issue. Ms. Goldberg said that there was some confusion over the board's
initial direction and that she was only looking out for the town's interest.
She said that some of the department heads felt that the Wormser
attorneys didn't have to look at everything.
Councilman Metz said that he had been making calls on this issue since last
April, sometimes as often as twice a month, asking if the system was in place
and had gotten no response. He said that this is not an issue that came out
of the blue. He said that board's intention was that the charge back plan was
designed for the large applicants and not for the homeowners who wanted to
put up a deck. In defense of the additional legal review by outside counsel,
Councilman Bianco said that maybe the town wasn't
always doing things properly and that maybe more review was needed.
It was noted that Mr. Pozin had raised the issue of
whether the town's code permitted such a charge back and that it could be
challenged. Councilman Metz acknowledged that the bills were for work that
had already been done but asked what work was included in the retainer.
Town Attorney John Buckley, whose job it was to review and sign off on the
bills submitted by Wormser Kiely,
said that for the most part, the billing seemed appropriate. He added that
department heads were not used to doing business this way (working with an
outside attorney as opposed to an in-house one) and that they had to get used
to new state-of-the-art ways. However, he said that the issue did need more
attention and that the process had to be “tweaked” more. Councilman
Bianco said that this was an issue for the board to
decide, not the department heads.
See also a discussion of Wormser Kiely legal bills for tax certiorari work, at Tax Issues/Budget
Issues/March 24, 2009.
April
29, 2009, work session
The board reviewed draft legislation that would establish an escrow account
for the purpose of charging applicants appearing before the planning board
and zoning board whenever the town's outside attorney who advises these
boards provides legal assistance over and above what is covered in the basic
retainer for attending the meetings. The draft is modeled after a New Castle
law.
Citing Section 168-3 of the town code that deals with escrow accounts for
subdivision, site plan and rezoning applications, Town Clerk Alice Roker said that a new law might not be needed, but
Building Inspector Bill Gregory told the board that that section did not
apply to the types of legal fees being discussed. Planning Director John Tegeder also said that a new law was needed in order to
establish an escrow account at the front end of the review process.
He also advised the board that because Yorktown already had laws that
established certain fees for applicants before the planning board and zoning
board, the New Castle law wasn't always applicable to Yorktown.
Mr. Gregory said he would review the New Castle law and strike out the parts
that were not applicable to Yorktown. He also advised the board that to
decide what types of applications the new fee would apply to. Councilman Metz
said that when the board first voted on the charge back plan in April, 2008,
it never intended for homeowners coming before the ZBA for variances for
decks would have to pay an additional fee.
Mr. Tegeder told the board that there has to be
clearer instructions to the outside attorneys so that they do not commence
legal research, which would incur additional costs, without first being asked
to do so.
Also at issue was whether the town should include having an attorney attend
every ZBA meeting when it renews its contract with Wormser
Kiely. The current renewal contract, still in draft
stage, would have an attorney attend only planning board meetings. Councilman
Bianco questioned the wisdom of not having an
attorney at ZBA meetings, noting that it was the ZBA that gets sued the most.
He added that it makes no difference at the planning board because that board
never says no. Councilman Metz responded that there were three attorneys on
the ZBA and that he had spoken to the chairman, Gordon Fine, an attorney, and
that they had no problem with an attorney being called in only when they
anticipated a problematic application. Mr. Gregory will also review the need
for an outside attorney at ZBA meetings.
May
26, 2009, work session
The board reviewed new draft of legislation that would set up an escrow
account system for charging back legal services performed by Wormser Kiely in conjunction
with the firm's representation at Planning and Zoning Board meetings. The
draft had been prepared by Town Attorney John Buckley.
A remaining issue was whether the escrow requirements should be applied to
applicants before the Zoning Board. Councilman Metz stated that when the new
system went into effect in April, 2008. it was never
the intent of the board that the average homeowner coming in for a variance
for a deck or small setback change would be charged. He said the escrow
account should only apply to commercial developers, although it was pointed
out that the town has also initiated variance applications. He also suggested
that the escrow account be limited to requests for zoning changes but it was
pointed out that the ZBA does not handle zoning changes.
A second issue was the need for outside legal counsel to be present at all
ZBA meetings. Councilman Bianco noted that for 90%
of the board's hearing, no one showed up to challenge an application. Some
applications, however, may require legal advise. Mr. Buckley said that based on
conversations he has had with the chairman of the ZBA and the Building
Inspector, the town will only have an attorney at the meetings if the ZBA
sees a problem or an issue looming at a cost of $240/hr that would come off
the monthly retainer. He said that 90% of the board's decisions were routine
and handled in a “cut and paste” fashion.
Regarding the Planning board, the draft states that the monthly retainer with
Wormser Kiely will
provide 8 hours of service, 3 hours each for work sessions and regular
meetings, plus two hours of preparation. Planning Director John Tegeder will monitor any additional legal work that needs
to be performed at a rate of $240/hour. Small applications (with fewer than 3
lots) would be charged $500 and larger ones $1,000. Both escrow accounts
would be subject to replenishment as needed.
Gulitz lawsuit
May 27, 2008, work session
In a last minute addition to the agenda, Supervisor Peters announced that the
insurance company that provides the town coverage against lawsuits has
notified the town that it will not cover costs associated with the Kyle Gulitz lawsuit charging anti-Semitism in the highway
department. The board then voted unanimously to have the town's
outside legal counsel file a lawsuit against the insurance company. Details
as to why the insurance company decided not to cover the lawsuit were not
provided.
August 5, 2008
The town approved resolutions retaining the law firm of Bleakley
Platt, LLP to challenge the denial of coverage for the Gulitz
lawsuit by the town's insurance company and the law firm of Oxman, Tulis, Kirkpatrick, Whatt & Geiger, LLP to
defend the Gulitz lawsuit. Both firms will be paid
at the rate of $240/hour.
Winery/Old
Stone Church lawsuit
June 17, 2008
The board approved a resolution hiring its outside counsel, Wormer, Kiely, Galef and Jacobs to
handle the law suit filed by the owner of the Winery at the Old Stone Church.
On the motion of Councilmen Bianco and Campisi, a copy of the complaint will also be sent to the
District Attorney. (Note: For background on the dispute, see: Winery/Old Stone Church
November
18, 2008
The board authorized the hiring of Brian Sokoloff
of the law firm of Sokoloff & Stern to continue
his representation of Councilman Bianco in the Old
Stone Church/Winery lawsuit. The board had previously authorized the hiring
of Mr. Sokoloff when he was with a different firm.
Mr. Sokoloff will be paid $240/hour.
March
10, 2009, work session
The town approved a resolution authorizing the law firm of Bleakley Platt and Schmidt to bring a declaratory
judgment against Landmark Insurance Company for its fialure
to defend the town and individual board members in the Old St. George Winery
lawsuit.
March 17, 2009
Not on the published agenda for the meeting, the board voted 4-0 with
Supervisor Peters abstaining, to send a tape recording that the winery owner
had submitted to federal court as part of his case to the Westchester
District Attorney and the NYS Attorney General for review. Supervisor Peters
abstained because he was mentioned onhe tape. The
board did not provide further details about the contents of the tape.
Town Attorney John Buckely said that he has advised
board members not to discuss the lawsuit with constituents who have asked
questions about the lawsuit.
June 2, 2009
The board passed a resolution directing the town's outside counsel, Wormser Kiley, to seek both
temporary and permanent injunctive relief against the Winery for the possible
illegal use of the premises. Counsel will be paid $240/hour.
Miscellaneous Legal Issues
Freedom of Information Law lawsuit
August 5, 2008
During Courtesy of the Floor, Susan Siegel (the person writing this summary)
informed the board of her intention to file an Article 78 lawsuit challenging
the town's denial of her FOIL (Freedom of Information) request.
Group home litigation
August 5, 2008
The town board amended the April 1, 2008 resolution retaining the law firm of
Grace & Grace to challenge the Evergreen Street group home by adding the
Marcy Street group home to the issues that he will be litigating.
Sewer back up litigation
June 23, 2009 settlement re sewer back up. For details see Complaints subject page.
February 16, 2010
Resolution
Request from
the Town Board
Approve payment of $170,907.58 in settlement of Adrian Lawsuit. This is Court ordered refund of $150,000 paid to Town in
anticipation of approval for a project
that was never approved. Includes $20,907.58 in interest which covers up to
12/08, so additional interest will be owed.
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