Saying they anticipate a lawsuit over the Kingstonian, city officials say they will no longer discuss the controversial proposed project with an activist group critical of the plan unless attorneys are present.
In response, a coalition of a number of city activist groups released a “group editorial” Wednesday accusing the administration of Mayor Steve Noble of intimidation and bullying.
Corporation Counsel Kevin Bryant. (photo by Hugh Reynolds)
The decision to limit communication with KingstonCitizens.org came after the group hired a lawyer to weigh in on a zoning issue related to the project. The move by Kingston Corporation Counsel Kevin Bryant signals that the city anticipates a lawsuit by Kingstoncitizens.org to block the ongoing review of the Kingstonian.
“These steps are necessary to protect the development of the record in a contested matter which will likely result in litigation,” wrote Bryant in a Sept. 12 letter to Poughkeepsie-based attorney Emily B. Svenson.
The proposed Kingstonian project would occupy two sites at the intersection of North Front Street and Fair Street extension. The $53 million project calls for the construction of 129 market-rate apartments and a 400-space garage at the site of the municipal parking lot. On the other side of Fair Street, a brick warehouse would be demolished to make way for a boutique hotel. The project would also include commercial space and a public plaza. The proposal is currently under review by the city’s planning board.
Kingstoncitizens.org is one of several local groups who have criticized aspects of the Kingstonian project. Concerns expressed have included the project’s lack of affordable housing and the impact of a large, newly constructed building on the character of a historic neighborhood.
At a recent hearing and elsewhere, several members of Kingstoncitizens.org claimed that the project violates the zoning code for the Mixed Use Overlay District where it would be located. In response, the city sought a formal determination of the issue from zoning officials. In a Sept. 9 letter to city officials, Svenson, working on behalf of Kingstoncitizens.org, argued that the zoning code prohibited any new construction — as opposed to adaptive reuse of existing structures — in the MUOD. Svenson’s opinion was submitted in response to an attorney for the Kingstonian’s developers own legal brief to the city’s zoning enforcement officer, Eric Kitchen, arguing that the project should be exempt from a provision in the overlay district’s code which requires at least 20 percent of new residential units be set aside for affordable housing.
In his letter to Svenson, Corporation Counsel Bryant indicated that her Sept. 9 letter constituted “notice of appearance as counsel.” Bryant went on to write that the Code of Professional Responsibility required all further communications between the city and Kingstoncitizens.org regarding the Kingstonian project to take place through counsel. Bryant went on to name several members of Kinsgtoncitizens.org, including the group’s founder, Rebecca Martin, County Legislator Lynn Eckert (D-Kingston), who’s also a former city alderwoman, and Marissa Marvelli. Earlier this year, Marvelli was replaced on the city’s Historic Landmarks Preservation Commission after she clashed with City Planner Suzanne Cahill and Assistant Corporation Counsel Dan Gartenstein over whether the commission could place on the record a recommendation that the Kingstonian undergo a more rigorous environmental review.
“As you are likely aware, the Kingstonian project is currently before numerous City Boards and Commissions and the Kingston Common Council,” Bryant wrote. “Your client has continued to assert an interest and a public position regarding each of the pending applications.”
In her Sept. 17 reply to Bryant’s letter, Svenson called the decision to cease informal communication with Kingstoncitizens.org on the Kingstonian project unwarranted. Svenson wrote that she was only hired to give an opinion on the zoning issue and does not currently represent the group. Svenson also noted that Kingstoncitizens.org is a grassroots, volunteer organization, not a corporation.
Svenson added that nothing in the Code of Professional Conduct bars parties in a potential legal action from communicating with each other. “My written comment on Kingstoncitizens.org’s behalf creates no rationale to limit contact between citizens and their elected and appointed officials,” Svenson wrote. “Particularly in the context of government, it is essential for citizens to be able to speak freely on matters of public interest pursuant to their rights under the First Amendment.”
‘Intimidated, bullied and mistreated’
Rebecca Martin did not return a phone call seeking comment. But in a “group editorial” posted on Kingstoncitizens.org on Wednesday, Sept. 25, the group accused the Noble administration of attempting to steer the Kingstonian review to a predetermined conclusion and using bullying tactics to silence dissenting voices. The post claims that the city’s decision to treat members of Kingstoncitizens.org as adversaries in a legal proceeding effectively singled out and sanctioned them for asking questions about the zoning code.
“From the beginning of the [environmental review] process residents — and specifically those outspoken women who are civically engaged — have been intimidated, bullied and mistreated by both members of the applicant’s team and city staff,” the editorial reads. “All the while our mayor … remains silent about this undemocratic and bullying behavior. We live in a democracy, not an authoritative regime, where citizens have First Amendment rights to play an active role in their government.”
The editorial was credited to the following: Martin, Eckert, Marvelli, Tanya Garment, Ted Griese, Laura Hartmann, Melinda McKnight, JoAnne Myers, Giovanna Righini, Rashida Tyler, Sarah Wenk and Theresa Lyn Widmann.
Martin, who founded Kingstoncitizens.org, was a strong supporter of Noble’s 2015 campaign. Since then, however, she has expressed frustration with some of his administration’s actions. Kingstoncitizens.org, meanwhile, has walked a fine line between seeking information and transparency on the Kingstonian project’s review process and expressing outright opposition to the plan. The group has steadfastly demanded that the project get a “positive declaration” under the state’s environmental review law. That would trigger a number of requirements for studies and public input that would likely take years — something that Dennis Larios, an engineer for the Kingstonian proposal, has indicated would likely mean the project’s demise.
This week, Noble downplayed the breach with the community group, saying that Bryant’s letter was standard procedure when litigation appears likely. Noble added that the gag rule on city officials speaking to the group only applied to the Kingstonian project and he remained open to discussing other issues of concern with Martin and her compatriots.
“Many issues are divisive, we’ve tried to be open and transparent, but when things get into litigation, it’s going out of our purview and we have to take the advice of counsel,” said Noble. “I still think we have done amazing things in this city, but people out there will disagree.”
The ‘activist’ group is just that, folks who would rather destroy a major economic and housing opportunity
in Kingston than see it succeed. The ‘activist’ group has interest in working to find quality solutions. They are rogue, they are h@ll-bent on disrupting what is an otherwise high-quality project that is eagerly participating in all historic, environmental, traffic, and visual impact evaluations. The ‘activist’ group would rather see Kingston continue to be a city that has struggled for more than 40-years since IBM closed by keeping us – in large part – as a welfare city. We deserve better than the lies these ‘activists’ are trying to sell.
The developers in good faith just yesterday presented a series of important new design improvements based
directly on public input and feedback. The developers are local folks, they own Herzog’s, one of our highly
valued local businesses.
These aren’t money-grabbing outsiders, they are paying more than 95% of the project cost with private funds.
They’ve revised much of the building to look and feel very similar to the Senate Garage across the street.
They’re providing a public gathering space that ties directly to our Uptown streets.
There is no valid reason what so ever why the ‘activists’ are fighting this, other than to hold all of us back for twisted political reasons.
It is sad.
It is sick.
This should be approved and shovels in the ground ASAP.
You are dead wrong on this one. It isn’t the first time that the City of Kingston has tried to push a project through without proper oversight. The empty hole on Abeel Street is one such project.
Help! Help! I’m being repressed!
You brought the first knife to the fight, Ms. Martin.
Please have a seat.
Good for the city of Kingston. A bigger bunch of bullies than this would be hard to find. Always with their swaggers on display. Bravo, City of Kingston. Enough of this group thinking its brilliance, and understanding, and vision override that of every elected and appointed official in this city, as well as any residents with an idea they don’t cotton to. The audacity, to think that they know better than everyone, all the time, though how often have judges found them wrong? And, just an aside… I was under the impression Miss Marvelli was replaced after a judge excoriated her capricious and arbitrary dialogue and decision on the ICC project, which she followed up with a TL:DR letter about how the judge was wrong and she was right, no?
First, voicing concerns about certain aspects of a proposed development and seeking a positive declaration are not the same thing as being anti-development. The goal of both raising concerns and seeking a positive declaration is to make the project better. And contrary to Larios’ comment, a positive declaration doesn’t kill a good project; rather it weeds out the bad ones; That is how the process is supposed to work. To attack members of the community for speaking up is both counter to the goal of public input and unnecessarily polarizing. Remember, this is not a private project…it involves public lands and public monies in a historic district.
Second, the facts are the the City has mishandled the application process, been wrong in correctly zoning the property and been wrong in applying the law…and that’s not coming from community “activists”, but from NY State and Ulster County agencies. Moreover, while the board is supposedly independent and waiting for all reports and studies to come in, the Mayor is on the record from last March stating that the project would get a negative declaration. That is blatantly inappropriate and possibly illegal, in addition to being hypocritical.
Lastly, the City Corporation Counsel Kevin Bryant’s letter to limit communication and chill the speech and access of the members of KingstonCitizens.org was disingenuous, antagonistic and utterly unsupported by law. He should know better. The law in the State of NY is settled that “a lawyer for an organization represents the organization as an entity and does not thereby automatically represent any of its constituent individuals. See New York Rules of Professional Conduct (“Rules”), Rule 1.13(a). As a general proposition, when a lawyer is engaged to represent an entity (whether it is a corporation, limited liability company, partnership of any type, trade association or other organization), the client is the entity alone. Ethics opinions, comments, and case law interpreting the rule make that clear. Comment 34 to N.Y. Rule 1.7 explains that “[a] lawyer who represents a corporation or other organization does not, simply by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary.” Accord ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 390 (1995). Case law also holds that, as a general matter, a lawyer who represents a corporation does not represent the individuals who work for that corporation. Cohen v Acorn Intl. Ltd, 921 F Supp. 1062, 1064 (S.D.N.Y. 1995), “a law firm does not represent the shareholder of a corporation, even a close corporation, simply by virtue of its representation of the corporation itself.” See also, MacKenzie-Childs LLC v. MacKenzie-Childs, 262 F.R.D 241, 249-51 (W.D.N.Y. 2009); Doe v. Poe, 189 A.D.2d 132, 135-36 (2d Dept. 1993). See also, Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (2013–14 ed.) §1.13-7(a). als of Clients, 37 J. Leg. Prof. 153 (2013).
Niesig v. Team I, 76 N.Y.2d 363 (1990), remains the guiding light in New York. There, a lawyer representing a personal injury plaintiff sought to interview an employee of the defendant corporation who had witnessed the accident but was not in a position to render the corporation liable or vicariously liable for it. The Court of Appeals found such contact permissible, setting for the criteria now in N.Y. Comment 1. It decreed that such contact is allowed unless the person is an employee (1) whose conduct in the matter at issue might be binding on the entity, (2) whose acts or omissions would be imputed to the entity for purposes of liability, or (3) whose role was or is to implement the advice of counsel. More recently, in Muriel Siebert & Co. v. Intuit, Inc., 8 N.Y.3d (2007), the Court of Appeals stated the rule as: “ex parte communications with non-managerial employees are permitted, but adversary counsel are prohibited from directly communicating with employees who have the power to bind the corporation in litigation, are charged with carrying out the advice of the corporation’s attorney, or are considered organizational members possessing a stake in the representation.” (For ease of reference, we refer below to such prohibited employees as “Managerial Employees.”)
The Court of Appeals’ delineation was designed to “safeguard[] against clients making improvident settlements, ill-advised disclosure and unwarranted concessions.” Niesig, 76 N.Y.2d at 368, 370–72. The Court has sought to strike “a balance between protecting represented parties from making imprudent disclosures, and allowing opposing counsel to unearth relevant facts through informal discovery devices *** that have the potential to streamline discovery and foster prompt resolution of claims.” Muriel Siebert, 8 N.Y.3d at 51-11.” The above is from http://www.newyorklegalethics.com/when-you-can-contact-others-who-are-or-were-represented-by-counsel-part-ii/
Bottom line, there is a statutory process to handle applications for such proposed developments which includes public input, timeline, notice, etc. But rather than follow the process in an independent manner as intended by law, the City has made efforts to aid thecdevelioers and deter public input. Regardless of where you stand in a specific project, the City’s conduct is not acceptable.
You have way too much time on your hands
Well explained Barrister.
There is no threat of a lawsuit, and no one is trying to stop the project. This is sloppy reporting.
“Mixed Used Overlay District”? Who makes this stuff up.
There’s no such crap in the tax rolls? Lot’s of other crap, but not Zoning Board slough? Weird thing about Zoning Board meetings is that they don’t allow for public-comment, they never have public access television broadcasts, and the lawyer gets all the cities’ work, here there and everywhere. (“I want her everywhere, And if she’s beside me I know that I’ll never care, Cause to love her is to need her…”)
The City attorney’s advice to public officials to cut off communication with individual residents associated with KingstonCitizens.org is unfounded, threatens the required public review process, and defies basic principles of good government. We urge public officials to reject that approach.
In any permitting process, there is the potential that litigation could arise after decisions are rendered. Developers can sue. Neighbors can sue. A city must not circumvent public discourse because of that possibility. Instead it must strive to conduct a thorough and proper process.
Kingston’s responsibility to carefully and publicly vet each proposed development project is only heightened for a once-in-a-generation project like the Kingstonian. Public officials should make it a priority to engage in dialog with various constituencies and points of view, to ensure the best outcome for the community.
As a member of KingstonCitizens.org, I would like to clarify that we have not suggested any intent to sue the City over the Kingstonian project. We have raised questions and provided perspectives designed to ensure a transparent, fair and participatory process.
Apparently the City’s fear of a lawsuit arose because KingstonCitizens.org had a lawyer submit a comment on a technical zoning matter related to affordable housing, a critical need in Kingston. Citizens should be free to engage professionals to help them understand and participate in public processes without being quarantined as potential litigants.
I intend to continue to participate in the public decision-making process in this city that I love. I hope that elected and appointed officials will remember that the privilege of their positions comes with the responsibility to listen to and raise up the voices of citizens, not push them away.