Lawsuit challenges Mid Broadway site
Newburgh businessmen Stuart Sachs and Drew Kartiganer, saying they have been rebuffed and ignored by the City of Newburgh for years, are stepping up to the plate in an effort to stop the City from making what they insist is a major mistake in proceeding with the Mid Broadway housing and market project.
Sachs, an artist and furniture store owner, and Kartiganer, an engineer and developer, have filed an Article 78 procedure that seeks to force the City to reverse action on the Mid Broadway site.
An Article 78 proceeding serves as a uniform device to challenge the activities of an administrative agency in court. It originated in 1937 as Article 78 of the Civil Practice Act, to encompass three legal writs: mandamus, prohibition and certiorari.
Mandamus compels action and only applies to purely ministerial duties. Prohibition prevents the body from overstepping its jurisdiction. The third writ, certiorari, reviews administrative determinations post hearing.
Article 78 cases often straddle the line between these writs.
According to “Understanding Article 78,” a publication put out by the law offices of Kevin P. Sheerin, of Mineola, N.Y., the only applicable questions that should be raised in an Article 78 proceeding are:
1. Whether the body or officer failed to perform a duty enjoined upon it by law, or;
2. Whether the body of officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction, or;
3. Whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed, or;
4.Whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
Sachs said that many times over the decade that he has been in Newburgh, he and others have read letters at City Council meetings, trying to guide the council to a sensible path using best practices and good planning as a guide toward policy decisions.
“As a resident, taxpayer and stakeholder, that is my duty,” he said. “Many times we have been ignored.
“In this particular case, the City’s decision was so egregiously poor and so obviously opposite of best practices and good planning, and specifically opposite to the City’s Master Plan and Future Land Use Plan that we felt there was no overriding public interest in reversing the direction if such a thing were possible.
“The Mid Broadway site is one of the most important and prominent development sites that will guide the future of look, stature and stability of Newburgh, and it should not be wasted on a poorly planned non-conforming project whose only benefit seems to be the hefty profits of would-be developers who invest none of their own money, and considered none of the needs of the community, and saddle the City’s taxpayers with a hefty tax bill to subsidize forever as they ease off with millions in tow.
“This was the moment to stand up and say, ‘No!’”
A lawsuit is costly, Sachs said. And in this type of lawsuit they are asking the court to reverse the action of the City Council for many reasons.
“We don’t ask for money,” he said. “I want to emphasize this because it clarifies my position (and Drew’s) as somewhat altruistic. We are standing up, spending our own money to force the City to do the right thing. It is the essence of Democracy that we have the right to question our government in court. If successful, we hope the City will be guided in the future by the Master Plan and the Future Land Use Plan, and various laws and procedures set up by State law.”
Sachs points out that as neighbors to the site, “we have a very great interest in what is built there.
“What is built on that site must benefit the City and Community, it must bring resources to the City, not suck them out.”
Kartiganer and Sachs in the past have appealed to the City Council’s reason at public meetings, trying to persuade the council to take a different direction.
In November 2013, Kartiganer scolded the council for pre-empting normal Planning Board and Zoning Board procedures and allowing the developers of the Mid Broadway site to take advantage of the council’s “lack of expertise and understanding of the issues.”
“Not one of the City Council has ever served on a Planning Board or Zoning Board – not one of you have any idea of what you have done in approving this project,” Kartiganer said, adding that the council “allowed a developer to dictate every component of this project without ever checking or confirming the viability, credibility or accuracy of what they have proposed or promised.”
David Church, commissioner of planning for Orange County, stated in a letter to the council this past May that “currently and historically all special use permits are awarded by the Planning Board in the City of Newburgh.”
He questioned the wisdom of deviating from common, uniform procedures and have only one type of permit to be reviewed by the City Council.
“No explanation is provided why this deviated process is necessary,” Church stated in a letter to the City that required an explanation of the strange move.
“Such review should stay with the Planning Board,” Church suggested at the time. The City Council went ahead and appointed itself as lead agency in the development.
No explanation for the council’s decision was ever provided to the public.
By ALLAN GAUL