Quick Note: This is the second installment of a three-part series examining Walworth’s Blue Heron development controversy, the legal limits of a townwide moratorium, and what residents can realistically do to change future development policy. You can read Part I here, and Part III here.
One of the more troubling ideas being repeated during Walworth’s development controversy around blue Heron is that the town should terminate the employees, consultants and Planning Board members associated with the project.
The theory seems simple enough: Residents don’t like the outcome, so remove the people involved and replace them with people expected to produce a different one.
But that’s not really how any of this stuff is supposed to work.
Residents have recourse when they dislike the direction of their town. That recourse comes through elections, public participation, comprehensive planning, zoning amendments, and sustained involvement in local government.
It doesn’t come through manipulating a legally established process until that process produces the preferred result.
Walworth’s Planning Board exists under New York Town Law and the town’s own code. Its members are responsible for reviewing subdivisions, site plans, special-use permits, and other land-use applications according to the standards the town has adopted. Pretty standard stuff.
They’re not appointed to decide whether they personally like a project. They’re intended to determine whether an application complies with the law.
People don’t seem to understand that about the whole review process.
Under New York Town Law, a Planning Board member may generally be removed for cause and after a public hearing. Members can also face consequences for failing to meet properly established attendance or training requirements.
But “cause” isn’t the same thing as political disagreement.
Cause could include misconduct, some kind of undisclosed conflict of interest, chronic nonattendance, refusal to perform required duties, or serious incompetence supported by real evidence.
But voting to approve a project that meets the town’s standards isn’t cause, even when the Town Board, neighbors, or a large group of residents hate the outcome.
New York’s attorney general has warned municipalities against restructuring boards as a backdoor way of removing members who otherwise could only be removed for cause.
That means the town couldn’t simply abolish or change the Planning Board as a pretext, appoint a preferred group, and pretend the legal problem disappeared.
A wholesale purge could trigger an Article 78, demands for reinstatement, and most importantly for taxpayers, substantial legal fees.
It could also damage the town’s position in any lawsuit brought by the developer.
Imagine the record that would create.
Residents oppose a project. The Planning Board applies the existing law. The town removes the planning board members who didn’t deliver the desired result. New members are appointed with an expectation that they’ll stop the project.
That’s not a strong legal position. It’s evidence that the town would be manipulating a process to reach a predetermined outcome.
Even beyond the legal exposure, it’d send a destructive message to every volunteer serving on a municipal board: Follow the code until the crowd gets angry, and then follow the crowd.
That’s not how land-use review works.
Board members shouldn’t be pressured to approve bad projects. They also shouldn’t be pressured to deny legally compliant ones.
Their obligation is to the town’s code and the administrative record — not to the loudest person in the room.
The same basic problem exists with calls to fire the building department or other town employees.
Towns often have authority to reorganize departments, replace some appointed officials, or discontinue consulting contracts. But it can’t simply walk into a meeting, point at everyone associated with a controversial project and tell them they’re finished.
Public employees have rights based on their civil-service classification, length of service, appointment terms, union status, and a host of other things.
New York Civil Service Law provides due-process protections to many public employees. In nearly all cases, an employee can’t be disciplined or removed without written charges, evidence of incompetence or misconduct, and a hearing.
The idea that the town can fire an entire department because residents dislike a Planning Board decision is detached from reality. The town also can’t eliminate code enforcement as a basic governmental function.
Walworth could restructure how those services are provided. It could replace individuals when legally permitted. It could contract for certain functions.
But it can’t create a vacuum where building permits aren’t processed, inspections stop, certificates of occupancy can’t be issued, unsafe structures go unaddressed and state building codes aren’t enforced.
This is the conceptual failure at the center of the “fire everyone” argument.
Removing people doesn’t invalidate the law they applied.
If the zoning permits a subdivision, and the applicant satisfies the applicable standards, replacing the Planning Board with people who dislike the proposal doesn’t create a lawful reason to deny it.
It creates a different board with the same law.
The town can enforce its standards rigorously. It can deny an application that fails to meet an applicable requirements. It can even amend its zoning prospectively after careful study.
What it can’t do is decide that one property owner must lose, then purge the people involved until someone delivers that result.
That’s not accountability. It’s an invitation to litigation.
Comments
Nothing yet. Say the first thing.
Sign in to join the conversation.