Should CVS/Five Guys project opponent, now on Planning Board, recuse himself?

This photo appeared in the June 11, 2015 issue of the New Paltz Times. The caption read: These folks are spearheading the efforts to keep CVS and Five Guys out of the gateway to New Paltz. Pictured left to right are: Michael Zierler, Julie Lillis, Kevin Borden and Stana Weisburd. They are pictured at the location on North Putt Corners of the potential driveway into the site. (photo by Lauren Thomas)

After Michael Zierler was appointed to the New Paltz Town Planning Board earlier this month, the attorney for a developer asked him to recuse himself from reviewing an application that he’s previously spoken out about during public hearings. That application is the one where Trans-Hudson Management would like to build a CVS and a Five Guys Burgers and Fries — together with a third structure, tenant to be named later — between North Putt Corners Road and the Thruway. The New Paltz Times asked some people familiar with either the planning process, the specific project, or both if they thought Zierler should honor attorney Charles Bazydlo’s request to step away during those deliberations.

In raising the issue, Bazydlo read from public hearing transcripts and letters to the editor that Zierler has signed, including one instance where CVS was called “the Walmart of pharmacies,” and not needed in the community. He maintained that this suggested Zierler had made up his mind before he joined the board. Zierler has stated that he can be impartial and apply the law in this case, and that his participation as a board member allows him to ask questions that ensure this is being done.

“I don’t feel like my previous comments as a citizen ever said anything that was other than about the concerns about this particular site plan or about the process the Planning Board and the applicant were engaging in,” he said when reached for comment. “Those are exactly the kinds of things I am continuing to ask about as a Planning Board member. That perceptual thing is going to be a concern in some people’s minds and in others it won’t be.”

Town resident Mary Ann Tozzi, who supports the project, said, “… if he has a strong opinion about it, no I would not trust that he has the community interest at heart … human nature would direct him to self-interest and not community interest.”

That’s not how KT Tobin, a village resident and longtime observer of the planning process, sees it. “My understanding is that the only grounds for recusal are financial conflict of interest, of which Michael Zierler has none, so I am perplexed as to why this idea is even under consideration.

“Michael is one of our most respected community members, and I believe one of the main reasons why is because of his thoughtful, investigative style. Michael is a scientist, and this is evident in his approach: before taking a position he listens to others, gathers data, analyzes information and comes to conclusions based on evidence. He never rushes his decisions; believe me, I know, it can be agonizing waiting to see where he stands when one hopes he will join your cause!” The fact that Zierler has watched this project closely means he wouldn’t have to “play catch-up,” she pointed out. She speculated that the real reason for the request is because of Zierler’s qualifications, not his opinions. “Clearly, they conducted some intel, and … they do not want someone analyzing their project with the precision [Zierler] has proven himself capable of.”

Ira Margolis, a village resident who was often the lone voice in support of building a CVS at the public hearings, said that he believes Zierler can render a fair decision. “What bothers me more is when the supervisor, who is supposed to represent the town taxpayers, is more concerned with the 65% tax exemption and the businesses in the village than the families of the taxpayers in the town. It was he who made the public comment the he does not want CVS in the town.”

Butch Dener chaired the town Planning Board when the Walmart application was being reviewed for the site now under consideration for Wildberry Lodge. “I was criticized for having an opinion while chair, but it does not take away your constitutional, American, New York rights to have an opinion. [It’s] almost unnatural not to have one. However, you need to have the moral fiber to judge the project on the legal ramifications. During Walmart, everyone wanted me to forgo following the law and turn it down because it was deemed socially unacceptable. It was zoned according to law and I had an opinion that if it passes the process we should approve it, but people didn’t want to hear that. Same thing with CVS. God forbid someone should have an opinion in this town. As long as the person who has the opinion does not stand to gain financially, then you have the right to have an opinion … the only reason to recuse yourself is a financial interest.”

One of Dener’s successors, Toni Hokanson, who ran the board prior to becoming town supervisor, disagrees with his assessment. “If he has already had an opinion about the project, he should recuse himself” from voting at least on the determination of environmental significance, she said, because to form an opinion before all that information is released “sets the town up for lawsuit.”

Another individual who is familiar with the planning process would only comment on condition of anonymity. He speculated that should the case end up in court, a judge would take a “hard look” at any comments Zierler made prior to joining the board.

Zierler doesn’t find those reasons compelling. “I’m just one vote out of seven members,” he said. And while he doesn’t discount the possibility of litigation coming out of whatever decision the board makes, he feels his presence will only strengthen the board’s position. “Whenever you have a contentious project, how you carry out the process is going to have impact on whether or not you are sued. Whenever you make decisions, you’re not going to please everybody. Lawsuits happen when we don’t have good process and defensible arguments in our decision to allow us to say what legally valid reasons were used. What really matters in terms of lawsuits is how the Planning Board carries out the process of reviewing and deciding on this application. I hope to try to improve that, increasing transparency [and] getting more information, so if we do have a suit, we will be in a better position to defend it.”