Dear Orange County IDA,

There are three concerns the Newburgh Advocate wishes to bring to your attention.

1. Is the Newburgh Armory Unity Center Grant permissible?

The Newburgh Armory Unity Center (NAUC) at 321 South William Street in Newburgh promises to provide recreational opportunities for the city’s youth. Philanthropist William Kaplan has taken a great interest in the NAUC and promised to donate additional funds of $500,000 to the $100,000 his Kaplan Family Foundation has already contributed.  The NAUC, through its executive director Deirdre Glenn, has proposed that the Orange County IDA provide a matching $500,000 to Kaplan’s grant.

Is it appropriate for the Orange County IDA to make a $500,000 grant to this nonprofit project?

A. According to the Authority Budget Office (ABO), IDAs do not have the statutory authority to give grants to public or private entities.

B. According to the Office of the State Comptroller,

IDAs cannot give gifts/grants of their own monies (see OSC opinion.)  However, they are authorized to accept federal and state [more likely federal] grants (see §  858 and §  858(11)), and subject to the terms of those grants, they may be able to administer those grants.  The “parameters” would be the terms of the grant by the state or federal agency.

C. According to the ABO, there is a prohibition against IDAs either “financing or participating in civic facility projects.”

D. A civic facility project is “any facility which shall be owned or occupied by a not-for-profit corporation organized and existing under the laws of this state or authorized to conduct activities in this state.” (Full definition here.)

E. The Newburgh Armory Unity Center is a not-for-profit.

F. In an agreement with the City of Newburgh, which received council approval July 11, this project seems to be a civic facility:

Section 5.1… It is expressly understood that no land, space, improvement, or equipment is leased to Manager and that Manager shall not acquire any property interest in the Facility whatsoever, other than the Licensed Uses, which shall permit Manager to have the use of the Facility and the right to occupy and operate the Facility in order to carry out the purposes of this Agreement. (In A-F, emphasis added.)

It would be a very unfortunate if the Orange County IDA’s portion of Kaplan’s matching grant turned out to be impermissible and had to be repaid.  To prevent such a calamity, why not have the Orange County IDA ask the Office of the State Comptroller to render an opinion regarding the legality of this grant?

If it is deemed appropriate, the Orange County IDA would be secure to go ahead.

But if it is not appropriate, many people would be spared disappointment, inconvenience and embarrassment.  And if it is not permissible, hopefully there would be a group effort to find a more appropriate governmental or private entity that could assist with the funding of this project and match Mr. Kaplan’s grant.

2.  Philip Crotty and James Petro

James Petro is the Chairman of the Orange County IDA and, since May, has also been serving as an Orange County Legislator.  The Orange County IDA Attorney, Philip Crotty, is also the Treasurer for “Committee to Elect Petro,” the campaign fund for James Petro.

When asked about this situation, the Authority Budget Office responded thus:

In the absence of additional information, the situation, as you describe it in your email, does not appear to violate any provision of the Public Authorities Law.  Mr. Petro is legally entitled to serve on the IDA board and hold an elected county legislative position.  We assume Mr. Crotty is a private attorney who has a contract to serve as the IDA’s attorney.  We also assume that he receives no additional compensation from the IDA or from Mr. Petro to act as Mr. Petro’s campaign treasurer.  We do believe that the potential for a conflict of interest arises should the IDA, or Mr. Petro, attempt to direct other legal business to Mr. Crotty’s private law practice as a result of his relationship with the IDA and Mr. Petro, outside of the scope of services he provides to the IDA under the terms of his contract.

Moreover, it appears that Mr. Petro and Mr. Crotty’s relationship extends beyond their roles with the IDA.  Accordingly, it would be appropriate for this matter to be reviewed and discussed by the full board.  Given this apparent personal relationship, the board may wish to consider seeking new counsel for the IDA to avoid the appearance of any potential conflict or personal favor.  (Emphasis added)

 The Newburgh Advocate hopes the Board will take this to heart and discuss the issue and do what is necessary to “avoid the appearance of any potential conflict or personal favor.”

3. Transparency and non-compliance of OC IDA website

While the Orange County IDA has managed to spend $10,000 to produce a six minute YouTube video, it appears to have done the minimum to have an IDA page embedded in the Orange County Government website.  While some agendas and minutes are posted, there is no list of monthly meetings for the year with their times, dates and locations.  An agenda is never posted in advance of the meeting.

On April 12, 2010, the ABO issued Policy Guidance No. 10-03, “Posting and Maintaining Reports on Public Authority Web Sites,” citing Chapter 506 of the Laws of 2009.

From Page 4 of that report, the following are required to be posted on the board’s website:

Board Meetings:
Post schedule of all board meetings at beginning of the fiscal year
Post meeting notices and agendas at least one week in advance of a board meeting Post all board meeting minutes within 14 days of meeting
Meeting minutes should be maintained on web site for at least two years following the date on which the meeting was held

Additionally, committees must comply as well:

Post notices and proposed agendas of all committee meetings at least one week in advance of meetings
Names of all committees and their members should be posted permanently, and updated as necessary
Post minutes within 14 days of committee meeting
Maintain meeting minutes for at least two years following the date on which the meeting was held

The Newburgh Advocate hopes the Orange County IDA will take some time to review the entire document of requirements as there may be additional items.  Consider creating your own website, as neighboring IDAs in Sullivan, Ulster, and Dutchess Counties all do.

Most importantly, please post your meeting dates and agendas in advance, so that the Orange County IDA is more transparent and genuine when it says it is “open for business.”

But one document dispels the notion that a clerk single-handedly granted Carchietta’s request to wire about $61,000 to his bank each month instead of to M&T Bank, the bond trustee. That form shows that Finance Commissioner Joel Kleiman authorized the switch on July 20, 2009, four days after Carchietta asked for it.

This is a direct contradiction to the information the county provided via Deputy County Executive Jim O’Donnell and Assistant County Attorney Joseph Mahoney at the last Ways and Means Committee meeting (video here.)  Throughout that meeting, Mr. O’Donnell and Mr. Mahoney clearly explained that a female clerk had made the switch.

Also of interest, the county apparently has been consistent in insisting it was justified in its actions:

The papers show that the county’s attorneys have insisted from the outset that Carchietta was entitled to the armory rent, even though the 1996 lease arrangement stipulated that the county should pay only M&T unless the bank said otherwise in writing — an instruction it never issued.

Attorneys for both M&T and the bondholder disputed the county’s view in their own letters, declaring the rent switch a violation of the lease terms.

View the lease agreement and attornment agreement.

According to the article, the FOIL request includes a letter in which the bondholders promise not to sue the county.

“Shut your mouth!” Angelo yelled Monday at city resident and businessman Michael Gabor. Gabor had criticized Angelo and Councilman Curlie Dillard for voting for a controversial labor agreement with firefighters without telling taxpayers why. Angelo responded by accusing Gabor and two other city residents of forcing a developer out of the city more than four years ago. If unearthing an old argument seemed random and unrelated to the topic at hand, it also was a reminder that no battle is ever forgotten in Newburgh.

“I’ll never forgive you for that,” Angelo yelled as Gabor took to the microphone to defend himself.

Councilwoman Christine Bello said Tuesday residents who were fighting to keep their homes after taxes increased 71 percent had every right to criticize the council and demand answers.

“I think some of the elected officials need to develop a sense of humility because being (on the council) is a privilege,” Bello said.

For some reason the council meeting on the city’s site only provides audio of the meeting.
1/16/11 Update: I have had reports of the video working on the city’s site.

From: Jane Johnston
Sent: Thursday, June 12, 2008 4:26 PM
To: McKean, Elizabeth
Subject: FOIL Request
Records Management Administrative Office
Elizabeth McKean, RMO
123 Grand Street
Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:
(1) Please email the following records if possible:
1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh for the years 1985 through 2008.
1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh for the years 1985 through 2008.
1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh for the years 1985 through 2008.
1.4. Invoices submitted by the National Development Council to the City of Newburgh for the years 1985 through 2008.
1.5. Invoices submitted by William Loewenstein to the City of Newburgh for the years 1985 through 2008.
1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh for the years 1985 through 2008.
1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass.
1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007.
1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008.
(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).
(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.
If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
A. Jane Johnston
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From: McKean, Elizabeth
Fri, Jun 13, 2008 at 9:49 AM
To: “Vitek, Lorene”
Cc:
Subject: FOIL Request – City of Newburgh
Lori,
As City Clerk and FOIL officer, would you please process Jane Johnston’s FOIL request below, distributing the requests to the relevant departments.
Thank you!
Betsy
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From: Jane Johnston
Mon, Aug 18, 2008 at 11:51 AM
To: “McKean, Elizabeth”
Cc: “Vitek, Lorene”
Subject: FOIL Request – City of Newburgh
Dear FOIL officer:
As of June 12, 2008, when I made my initial request, I have received no further communications regarding my FOIL request apart from the message below.
According to FOIL, I should have received a response within five business days:
§89. General provisions relating to access to records; certain cases.
3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.
(b) All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.
I hereby request a response to my FOIL request.
Sincerely yours,
A. Jane Johnston
[Quoted text hidden]
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From: McKean, Elizabeth
Tue, Aug 19, 2008 at 8:18 AM
To: Jane Johnston
Subject: FOIL Request – City of Newburgh
Jane,
Lori Vitek is the FOIL Officer, and she will be in touch with you; she is working with the Corporation Counsel.
Betsy
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From: A. Jane Johnston
Sent: Monday, August 18, 2008 12:59 PM
To: dos.dl.InetOpenGov
Subject: what to do about a FOIL request that’s been ignored
I filed a FOIL request via email on June 12, 2008, to the City of Newburgh and have heard nothing back since then.  I just sent a request for a response and quoted the section 89, paragraph 3, about “within 5 business days” in hopes that this will garner a response.  What recourse do I have, though, apart from continued requests for a response back?
Kind regards,
A. Jane Johnston
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From: Mercer, Janet (DOS)
Wed, Aug 20, 2008 at 10:16 AM
To: “A. Jane Johnston”
Cc: lvitek@cityofnewburgh-ny.gov
Subject: what to do about a FOIL request that’s been ignored
Dear Ms. Johnston:
I have received your inquiry concerning your inability to obtain a response to your Freedom of Information Law request directed to the City of Newburgh.
The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, (89(3) of the Freedom of Information Law states in part that:
“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…(
It is noted that new language was added to that provision in 2005 stating that:
(If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.(
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request.  When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied.  However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access.  That date must be reasonable in consideration of the circumstances of the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon (the circumstances of the request.(  From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, (84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.”  Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure.  As the Court of Appeals, the state(s highest court, has asserted:
“…the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom.  By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception.  The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
(The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the  materials fall within one of the exceptions to disclosure.  Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL((Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see (89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with (89(4)(a), which states in relevant part that:
“…any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”
Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
I point out that the person designated to determine appeals by the City of Newburgh is Geoffrey E. Chanin, Corporation Counsel.
In an effort to enhance compliance with law, a copy of this opinion will be forwarded to the City Clerk.
I hope that I have been of assistance.
Janet Mercer
Committee on Open Government
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 – Fax
Website:  http://www.dos.state.ny.us/coog/coogwww.html
++++++++++
from: Vitek, Autumn
to:
date: Fri, Aug 22, 2008 at 12:41 PM
subject: Your FOIL Request dated June 12, 2008
mailed-by: cityofnewburgh-ny.gov
Dear Ms. Johnston:
Your communication regarding your FOIL request is received.  I apologize for the delay in this matter, which has resulted in part from the efforts of City staff to locate the records you have requested.
I have urgently requested that any contracts and/or related paperwork which may exist between the City of Newburgh and William Lowenstein and/or Community Initiatives Development Corporation, and including invoices as you have also requested; and also the disclosure statements you have requested, be forwarded directly to me as soon as possible.
Please note that your request includes records going back to 1985.  Some of these records may be in the City’s archives in secure storage, while others may not have existed or may no longer exist.  By copy of this letter I am asking the City’s Records Management Officer to ensure that any such records which may have been transferred to our archives be identified and copied so that they may be provided in response to your request.
We will also determine if the volume of paper involved in fulfilling your request is so large that another format, such as CD or floppy disk, would be a preferable medium.
Thank you for your patience.  If you would like to speak with me personally about your request, please telephone me at (845) 569-7335.  I hope to be able to fulfill your request, at least in part, within the next two weeks.
Sincerely,
GEOFFREY E. CHANIN
Corporation Counsel
GEC/av
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From: Jane Johnston
Fri, Aug 22, 2008 at 1:49 PM
To: “Vitek, Autumn”
Subject: Your FOIL Request dated June 12, 2008
Dear Mr. Chanin,
Thank you for your reply.  I appreciate your efforts and look forward to hearing from you.
Kind regards,
A. Jane Johnston
[Quoted text hidden]
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From: Jane Johnston
Fri, Aug 22, 2008 at 4:26 PM
To: “Mercer, Janet (DOS)”
Subject: what to do about a FOIL request that’s been ignored
Dear Ms. Mercer:
I just wanted to thank you again for forwarding your opinion to the City of Newburgh.  I received this email from the Corporation Counsel today and am happy to report that it looks very promising that the request will soon be answered.
Kind Regards,
A. Jane Johnston
[Quoted text hidden]
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From: Jane Johnston
Mon, Sep 15, 2008 at 7:59 AM
To: “Vitek, Autumn”
Subject: Your FOIL Request dated June 12, 2008
Dear Mr. Chanin,
It is over three weeks since I have heard from you and I am wondering if I could receive an update on the status of my FOIL request.
Kind regards,
A. Jane Johnston
[Quoted text hidden]
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[MAIL PACKET RECEIVED SOMETIME AFTER ITS POSTMARK OF SEPTEMBER 12, 2008, with the following cover letter]
September 11, 2008
A. Jane Johnston
Re: Freedom of Information Law (“FOIL”) Your Request of June 13, 2008
Dear Ms. Johnston:
In reply to your Freedom of Information Law (“FOIL”) request, dated June 13, 2008, please find enclosed copies of three contracts between the City of Newburgh Industrial Development Agency (“IDA”) and Community Initiatives Development Corporation (“CIDC,”) dated September 1, 2005, September 1, 2006, and September 1, 2007.
Please note that your FOIL request sought records involving the City of Newburgh, which is a completely separate and legally independent entity from the IDA.  We have conducted a search and so far have not found any contracts between the City and CIDC; however, on the premise that you would have an interest in these contracts involving the IDA I am forwarding same to you.
Regarding your other requests, would you please provide more descriptive details concerning a “Disclosure Statement” of William Hauser dated on or around January 29, 2006 regarding Den Cass?  We do not maintain a separate file for such documents.  To what would such statement be related?  Perhaps such a document rests in some other file related to a specific project.  Please keep in mind that Den Cass was a private organization, and that Mr. Hauser is a private independent contractor, not a City employee.
Also, any further descriptive information you could provide concerning your request for “disclosure statements” of William Loewenstein would also be helpful to us in identifying the requested records.
Thank you for your cooperation.
Sincerely,
Geoffrey E. Chanin
Corporation Counsel
GEC/dt
Enclosures
W/out enclosure
cc: Robert H. McKenna, Director of Planning & Development
Lorene Vitek, City Clerk
A note regarding the above letter of Mr. Chanin’s: by coincidence, I was reading through the city council proceedings of the year 2004, a hefty volume available to the public at the Newburgh Free Library.  I was amazed to come across Resolution 199-2004 or August 9, 2004: “A resolution authorizing the city manager to enter into an agreement with Community Initiatives Development Corp. for the assistance in the implementation and financing of economic and housing development in the City of Newburgh.” By curious omission, this resolution is NOT listed in the index of this volume preceding the resolutions; those two pages, 47 and 48, are missing.  Did Ms. McGrane sign the contract that is attached to the resolution with CIDC?  If she did, and if she were billed by CIDC, then it is curious such records could not be found.  Of course it is entirely possible that Ms. McGrane chose for some unknown reason not to sign the contract and enter into consulting with CIDC, in which case there would be no records.  As it stands, of the three contracts Mr. Chanin provided with this letter, dated Sept. 1, 2005, Sept. 1, 2006, and Sept. 1, 2007, only the 2005 contract has a signatory for the Newburgh IDA: Robert McKenna.  The 2006 and 2007 contracts are ONLY signed by the CIDC representative.
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Subject: FOIL Request
From: Jane Johnston
Sun, Sep 21, 2008 at 8:34 PM
To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”
Dear Mr. Chanin,
Thank you for your letter of September 11, 2008 in response to my FOIL request of June 13, 2008 (your noted date).
Thank you for enclosing the CIDC recent contracts.  However, this does not entirely satisfy my original FOIL request, and I am happy to provide further details to aid you in producing the documents.
I would sincerely appreciate your timely attention to this matter.
I have amended the original request with additional details, highlighted in yellow:
(1) Please email the following records if possible:
1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.4. Invoices submitted by the National Development Council to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.5. Invoices submitted by William Loewenstein to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass. Provided in Mr. Hauser’s capacity as the city’s consulting engineer, this document indicates that Den Cass has no relationship to the firm of McGoey Hauser; any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.
1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007. For the years indicated, any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.
1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008. Any documents, if they exist, stating other groups, firms, or employment Mr. Loewenstein was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.
(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).
(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.
If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
A. Jane Johnston
Newburgh, NY 12550
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From: Jane Johnston
Sun, Sep 21, 2008 at 8:48 PM
To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”
Subject: FOIL request
Records Management Administrative Office
Records Management Officer
123 Grand Street
Newburgh, NY 12550
REQUEST FOR RECORDS BY EMAIL
Dear Records Access Officer:
(1) Please email the following records if possible:
On July 24, 1986, there was a public hearing at the City Council meeting regarding an Urban Development Action Grant Application for the construction of professional office space at 298 Broadway in the City of Newburgh, New York, which was then approved and submitted.
1.a. The original, completed UDAG application.
1.b. Any correspondence from 1986 regarding this UDAG application, including correspondence with Dan Marsh, William Loewenstein, NDC, Community Development Group, the federal government, and/or other parties.
(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).
(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.
If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
A. Jane Johnston
Newburgh, NY 12550
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From: Vitek, Lorene
Mon, Sep 22, 2008 at 1:21 PM
To: Jane Johnston
Subject: FOIL request
FOIL ACKNOWLEGMENT.doc
35K
September 22, 2008
A. Jane Johnston
Re: FOIL Request– UDAG Application
298 Broadway
Dear Ms. Johnston:
Your request for certain records and materials from the City of Newburgh pursuant to the New York State Freedom of Information Law (Public Officers Law, Article 6, known as “FOIL”) has been received and are hereby acknowledged.  We are identifying and collecting the records, which is the subject of your request.
Under State law, the statutory fee which the City of Newburgh may charge in connection with the production of such records is .25¢ per page for 8½” x 11” photocopies; and/or the actual cost of reproduction of certain other materials and records as stipulated in Chapter 163 “Fees” of the City of Newburgh Code.  If the fees to be charged in fulfilling this request could amount to a significant sum, the City of Newburgh will notify you of this fact before taking any action, which would incur such costs.  You will then be invited to come to the City offices to inspect the subject records to select which of them you wish to have reproduced.  This will spare you unneeded and unintended expense.
Please convey any questions, comments or problems you may have to the City of Newburgh Freedom of Information Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550.  In the event your request, or any portion thereof, is denied, you may appeal such denial in writing by sending such written appeal to the City of Newburgh Freedom of Information Law Appeals Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550.
Yours truly,
Lorene Vitek
City Clerk
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From: A. Jane Johnston
Sent: Friday, October 10, 2008 12:25 PM
To: dos.dl.InetOpenGov
Subject: Question regarding timely response to FOIL/further information
Dear Committee,
On June 12, 2008, I made a FOIL request to the City of Newburgh that was not responded to until the Committee member Janet Mercer’s opinion was sent.  In September I received an answer to this request, denying in part due to lack of identifying information.  On Septmeber 21, I sent an email, which should have been received Monday September 22, providing the additional information to identify the records in question.  Three weeks have elapsed since this email and I have received no response or acknowledgment.  Is the law the same regarding these secondary requests as the initial requests?  Many thanks for your insights regarding this issue.
Kind regards,
A. Jane Johnston
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Subject: FOIL Request
From: Jane Johnston
Wed, Oct 22, 2008 at 9:26 AM
To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”
Dear Mr. Chanin,
One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.
Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days.  I will also forward you the opinion from the Committee regarding FOIL requests.
Please let me know if I should take this to understand that my requests have been denied; in which case I will then take appropriate action.  It is my hope that this is not the case, and that my requests will be fulfilled.
I am sending this by email, as per our verbal conversation some weeks ago; if it is preferred or necessary that I follow up in writing please let me know and I will do so.
Sincerely yours,
A. Jane Johnston
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Subject: FOIL request
From: Jane Johnston
Wed, Oct 22, 2008 at 9:27 AM
To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”
Please note my preceding email; this was my second FOIL request.
Kind regards,
A. Jane Johnston
On Sun, Sep 21, 2008 at 9:48 PM, Jane Johnston wrote:
[At this point I resend the two original FOIL requests]
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RE: Question regarding timely response to FOIL/further information
Wed, Oct 22, 2008 at 2:06 PM
From: Mercer, Janet (DOS)

To: “A. Jane Johnston”
October 22, 2008
M E M O R A N D U M

TO:             Persons seeking written guidance or opinions concerning open government laws
FROM:   Robert J. Freeman, Executive Director
We have received your correspondence in which you raised questions and/or requested a written advisory opinion involving the interpretation of New York’s open government laws, and we apologize for the delay in response.
For a variety of reasons, we are unable to prepare written responses to your correspondence as quickly as we would like.  Awareness of open government laws has increased, due in part to the desire for greater accountability and the enactment of amendments to both the Freedom of Information and Open Meetings Laws.  As a consequence, the staff of the Committee on Open Government is receiving more telephone, email and other written inquiries than ever before, and we are asked with greater frequency to provide training and education to government associations and agencies, public interest groups, students and news media organizations.
Notwithstanding the growth in interest in open government laws and the service provided by the Committee, its staff now consists of an Assistant Director, Camille Jobin Davis, our office manager for thirty years, Janet Mercer, and myself.  In view of the backlog of requests for written responses, we are often unable to respond in writing for several months.  To serve you efficiently, we are offering an opportunity to obtain verbal responses to your inquiries.  If that is acceptable, please phone the Committee, and we will speak with you immediately or soon after receiving your call.  If you continue to want a written response, please so inform us by phone, fax or by transmitting an email to janet.mercer@dos.state.ny.us.  If we do not hear from you within 3 weeks of your receipt of this memorandum, it will be assumed that a written response is no longer desired.  Please note that answers to your inquiries may be found in the thousands of advisory legal opinions indexed by subject and available on our website.
It is gratifying that so many have developed an awareness of the importance and utility of our laws relating to the public’s right to
know and seek the guidance from the Committee on Open Government.  However, the interest in those laws has become so overwhelming that we are unable to provide detailed written responses to inquiries as efficiently as we would like.
Thank you for your consideration and forebearance.
RJF:jm
Robert J. Freeman
Executive Director
Committee on Open Government
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 – Fax
Website:  http://www.dos.state.ny.us/coog/coogwww.html
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Subject: FOIL request of October 22, 2008
From: Vitek, Autumn
Mon, Nov 10, 2008 at 3:44 PM
To:
Dear Ms. Johnston:
I am in receipt of your FOIL request dated Wednesday, October 22, 2008.  I regret the delay in replying to your request.  Your have requested records from the year 1986.  Specifically, you have requested copies of the original UDAG application for a grant in connection with the construction of professional office space at 298 Broadway in the City of Newburgh; and any correspondence in connection with such UDAG application, including but not limited to correspondence with Dan Marsh, William Lowenstein, NDC, Community Development Group, the federal government and/or other parties.  If such records are on hand and available in the Office of Economic Development in City Hall, we will provide them to you in approximately ten (10) days or less.  If they are in electronic format, they will provided to you in such format.
If the records are still in existence, then they may be in storage in the City archives.  If so, they must be requested and, if found, retrieved from such storage.  This process may require approximately four (4) weeks.
I will keep you advised of the status of the retrieval of the records you have requested.  Thank you for your communications and understanding regarding this matter.
Sincerely,
GEOFFREY E. CHANIN
Corporation Counsel
GEC/av
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Subject: FOIL request of October 22, 2008
From: Jane Johnston
Mon, Nov 10, 2008 at 3:55 PM
To: “Vitek, Autumn”
Dear Mr. Chanin:
Thank you very much for your email today.  I was about to compose a letter in expectation that my request had been denied, so I am greatly relieved and thankful that the request will be honored.
I greatly appreciate your efforts, and the efforts of all involved in finding the relevant records.
Kind regards,
Jane Johnston
[Quoted text hidden]
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Subject: FOIL request of October 22, 2008
From: Jane Johnston
Mon, Dec 1, 2008 at 5:28 PM
To: “Vitek, Autumn”
Dear Mr. Chanin,
More than two weeks have passed since I received this email.  I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.)  Please let me know what the status is of this.
Kind regards,
A. Jane Johnston
On Mon, Nov 10, 2008 at 3:44 PM, Vitek, Autumn wrote:
[Quoted text hidden]
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[WRITTEN PACKET MAILED TO CORPORATION COUNSEL]
December 13, 2008
Geoffrey E. Chanin, Esq.
Corporation Counsel
City Hall, 2nd Floor
83 Broadway
Newburgh, NY 12550
Via Certified Mail
Re: FOIL Request of June 12, 2008 and September 21, 2008
Dear Mr. Chanin,
By your failure to furnish the documents I have requested according to the Freedom of Information Law or to provide a timely response indicating when these documents will be provided, I understand that my request has been effectively denied.
Therefore, as within my FOIL rights, I do hereby request that within ten days of receipt of this letter the requested documents be furnished or I be provided with a written explanation as to why my request has been denied and when the documents will be furnished.
For your convenience and reference I am providing a timeline of our correspondence complete with copies of the emails, including the Department of State’s Committee on Open Government’s opinion, written by Janet Mercer, in response to my query about “what to do about a FOIL request that has been ignored.”
As one additional note, to be perfectly clear, I have requested documents not ONLY from the year 1986, but from the time period of 1985 to the present, as specified in my original FOIL requests and as I indicated in our phone conversation.  I would imagine that, for example, the recent invoices of Mr. Loewenstein’s Community Initiatives Development Corporation would be fairly accessible in the Office of Economic Development.
I look forward to receiving the requested documents.
Sincerely yours,
A. Jane Johnston
CC: Councilwoman Marge Bell, Councilwoman Christine Bello, Councilwoman MaryAnn Dickinson
Att: Timeline, original FOIL requests and additional email correspondence
December 13, 2008
TIMELINE OF CORRESPONDENCE
June 12, 2008: Email from Jane Johnston, “FOIL Request”
August 20, 2008: Email Opinion of Janet Mercer, Department of State, re: “what to do about a FOIL request that’s been ignored”
September 11, 2008: Letter of acknowledgment for my June 12 (June 13 by your description) request
September 21, 2008: Email from Jane Johnston “FOIL request” including UDAG application and various correspondence (see attached for specifics)
September 21, 2008: Email from Jane Johnston “FOIL request” providing additional identifying information to clarify my request of June 12 (June 13 by your description)
September 22, 2008: Emailed letter from City Clerk Lorene Vitek acknowledging the UDAG application FOIL Request (my request of Sept. 21)
October 22, 2008: Email from Jane Johnston to Mr. Chanin, “FOIL Request:”
“One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.
“Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days.  I will also forward you the opinion from the Committee regarding FOIL requests.”
November 10, 2008: Email from Mr. Chanin stating that the documents would be provided, if available, within 10 days or less; and documents retrieved from storage within approximately four weeks.
November 10, 2008: Email from Jane Johnston thanking Mr. Chanin for acknowledgment of request and providing a timeline for furnishing of documents.
December 1, 2008: Email from Jane Johnston “FOIL request of October 22, 2008″ that
“More than two weeks have passed since I received this email.  I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.) Please let me know the status of this.”
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Subject: FOIL Request
From: Vitek, Autumn
Tue, Dec 23, 2008 at 12:05 PM
To:
Cc: “Vitek, Lorene” , “Zapata, Lourdes”
Dear Ms. Johnston:
We believe we have found the invoices submitted by Community Initiatives Development Corporation.  Copies of the same will be available in the City Clerk’s Office on Monday, December 29, 2008, as this data is not available electronically.
We will treat your request as a continuing one and provide you with copies of the requested documents, including in e-mail format where available; when same are identified.
Sincerely,
GEOFFREY E. CHANIN
Corporation Counsel
GEC/av
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Mr. Chanin did provide the CIDC invoices from 1/05 – 9/08, but missing from these were the invoices for 1/1/07 – 1/31/07 and 5/1/07 – 5/30/07.
On October 22, 2009, Corporation Counsel Geoffrey Chanin resigns, putting Assistant Corporation Counsel Michelle Kelson into his seat.
Following the December 14, 2009 City Council meeting, I approach acting corporation counsel Michelle Kelson and mention my languishing FOIL requests.  She directs me to resend the requests to her, although she acknowledges that FOILs are not her “top priority.”
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Subject: FOIL request of October 22, 2008
From: Jane Johnston
Tue, Dec 15, 2009 at 12:58 AM
To: “Vitek, Autumn”
Dear Ms. Vitek/Ms. Kelson:
I would appreciate it if you would forward this email to Acting Corporation Counsel Michelle Kelson.
Ms. Kelson: attached below is one of the last emails I received from Mr. Chanin regarding my FOIL requests.  I am still actively seeking the information requested and would appreciate your attention to this matter.  I will also forward to you the original FOIL requests, as amended, in their most recent form.  These original requests are more reliable descriptions of the records I seek than Mr. Chanin’s summary.
Kind regards,
A. Jane Johnston
Newburgh, NY 12550
———- Forwarded message ———-
From: Vitek, Autumn
Date: Mon, Nov 10, 2008 at 3:44 PM
Subject: FOIL request of October 22, 2008
To:
Dear Ms. Johnston:
I am in receipt of your FOIL request dated Wednesday, October 22, 2008.  I regret the delay in replying to your request.  Your have requested records from the year 1986.  Specifically, you have requested copies of the original UDAG application for a grant in connection with the construction of professional office space at 298 Broadway in the City of Newburgh; and any correspondence in connection with such UDAG application, including but not limited to correspondence with Dan Marsh, William Lowenstein, NDC, Community Development Group, the federal government and/or other parties.  If such records are on hand and available in the Office of Economic Development in City Hall, we will provide them to you in approximately ten (10) days or less.  If they are in electronic format, they will provided to you in such format.
If the records are still in existence, then they may be in storage in the City archives.  If so, they must be requested and, if found, retrieved from such storage.  This process may require approximately four (4) weeks.
I will keep you advised of the status of the retrieval of the records you have requested.  Thank you for your communications and understanding regarding this matter.
Sincerely,
GEOFFREY E. CHANIN
Corporation Counsel
GEC/av
FOIL request
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Subject: FOIL request
Jane Johnston
Tue, Dec 15, 2009 at 1:02 AM
To: “Vitek, Autumn”
Dear Ms. Kelson,
Here is the other FOIL request.  Thank you very much for your assistance.
Kind regards,
A. Jane Johnston
———- Forwarded message ———-
From: Jane Johnston
Date: Sun, Sep 21, 2008 at 8:48 PM
Subject: FOIL request
To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”
Records Management Administrative Office
Records Management Officer
123 Grand Street
Newburgh, NY 12550
REQUEST FOR RECORDS BY EMAIL
Dear Records Access Officer:
(1) Please email the following records if possible:
On July 24, 1986, there was a public hearing at the City Council meeting regarding an Urban Development Action Grant Application for the construction of professional office space at 298 Broadway in the City of Newburgh, New York, which was then approved and submitted.
1.a. The original, completed UDAG application.
1.b. Any correspondence from 1986 regarding this UDAG application, including correspondence with Dan Marsh, William Loewenstein, NDC, Community Development Group, the federal government, and/or other parties.
(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).
(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.
(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.
If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
A. Jane Johnston
Newburgh, NY 12550
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Subject: FOIL Request
From: Jane Johnston
Wed, Dec 16, 2009 at 9:42 PM
To: “Vitek, Autumn”
Dear Ms. Kelson,
Please note that in the FOIL request I sent to you yesterday, I should let you know that Mr. Chanin did provide some of the invoices to satisfy request 1.6.  I have invoices between CIDC and the Newburgh Industrial Development Agency from roughly 2005 to present.
This was the only request Mr. Chanin honored, despite prodding from the Committee for Open Government.
On Tue, Dec 15, 2009 at 1:00 AM, Jane Johnston wrote:
1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.
Kind regards,
A. Jane Johnston
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As of Monday, December 28, 2009, I have received no acknowledgment or update of any kind from Ms. Kelson or anyone in city government regarding the FOIL requests, which are now over a year and a half old.

This article is part of an initiative with Understanding Government, a Washington D.C. based nonprofit, called “Government In My Backyard”(GIMBY).

Ever heard of “fracking”? It could bring cash-strapped New York State revenue in the billions of dollars. It could also contaminate groundwater and aquifers with carcinogens and other toxins, pollute millions of gallons of water, and require New York City to build a water filtration plant at a cost of $10 billion.

Hydraulic fracturing, or fracking, uses water and often-hazardous chemicals to push natural gas up out of ancient sediments such as shale deposits. Decisions about gas drilling in the Marcellus shale formation – an ancient sedimentary rock deposit stretching from New York State down to West Virginia – are high on the agenda of the New York State Department of Environmental Conservation in 2009.

Hydrofracking itself is not new to New York. What is new is the water-intensive form of hydraulic fracturing with horizontal wells and toxic chemicals that is proposed in the Marcellus shale region of the State. Thus, while the older wells might use 80,000 gallons of water, the gas drilling that is under review would require more than 1,000,000 gallons of water to be injected deep into the well. The “produced” water coming back out of the well would then need to be stored as it would be contaminated with the fracking fluid chemicals.

Despite the modern setting, the players in this drama are much same as they were when fossil fuels were first tapped in the Northeast more than a century ago. With as much as 500 trillion cubic feet of gas available in the Marcellus shale, fossil fuel companies are pressing New York and other states to allow drilling, while environmental groups and concerned citizens are lining up against large-scale gas extraction, and warning of its dangers. State and local politicians and government agencies are right in the middle of this growing struggle for New York State’s underground resources.

Gas Industry Flexes its Muscles – and “Stealth Politics” Creep into the Picture

As Understanding Government has reported previously, November 2008 saw the first permit request issued by New York State’s Delaware River Basin Commission (DRBC) to Oklahoma-based Chesapeake Energy Corporation to withdraw water in the maximum amount of 999,999 gallons a day from the Delaware River. All that water would be mixed with chemicals and pumped into natural gas wells in a process called hydraulic fracturing, or “fracking,” breaking up underground rock formations to help drive gas to the surface.

With revenues of $7.8 billion in 2007, Chesapeake Energy is one of the 100 largest fossil fuel companies in the world.  Its CEO, Aubrey McClendon, was paid nearly 19 million dollars in 2007.  Also receiving a share of Chesapeake’s revenues has been lobbyist Thomas S. West, a key player in the evolving Marcellus shale drama.  West notes on his corporate profile that he has succeeded in quickly moving major changes through the New York State legislature, including “a major overhaul to New York’s oil and gas law less than four weeks after the legislation was first introduced.”  According to West, this 2005 change took place even as the state was still developing regulations for the old law and dealing with lawsuits about what the old law allowed gas and oil companies to do.

More recently, West’s firm was retained by Chesapeake Appalachia, a subsidiary of Chesapeake Energy, to lobby for legislation to reduce the distance between natural gas and oil wells, known as a “setback” (setbacks also govern how close to other property well owners can drill.) While many states and cities have recently maintained or even increased setbacks for gas drilling, the New York State legislature in July 2008 approved a decrease in setbacks for oil and gas wells from 660 feet to 460 feet. Catskill Citizens for Safe Energy (CCSE), a non-profit organization focused on environmental protection and education, has described this new setback ruling as an example of “stealth politics” because, according to reports on their website, New Yorkers were told no action would be taken on the bill during the summer session. Instead, the bill allowing for more gas and oil drilling facilities to be built was “rushed through committees and passed by both the Assembly and the State Senate. The final vote took place late at night on the last day of the session.”

Environmentalists Accuse New York State of Favoring Big Oil and Gas

Catskill Citizens’ Bruce Ferguson said that the gas spacing bill entirely removed public hearings from the process: “The bill facilitated the kind of drilling [gas companies] want to do in the Marcellus shale by allowing them to do these horizontal wells without having to seek variances. It did away with public hearings.” He added that “under the old law, they would have had to get variances for each of these horizontal wells, and each of those variances would have called for a public hearing. Now they don’t have to talk to the public at all.”

According to Ferguson, six directors from the DEC were present in the room in Albany when he and others went to lobby regarding the bill. “Brad Field was there, Jack Dahl was there, Kathy Sanford was there… They were behind this bill” reducing the space between oil and gas wells. Ferguson believes the reason the bill passed was because the DEC was pushing to pass it. “The DEC, unfortunately, has acted as a shill for the gas industry,” says the environmental activist.

The first public comment period on the hydrofracking process – part of the Supplemental Generic Environmental Impact Statement, or dSGEIS – ended December 15.  Representatives from all sides of the spectrum submitted comments. DEC spokesman Yancey Roy notes, for example, that New York City is starting to voice concerns about its aquifer. “On the one hand we’re getting letters from New York City officials” including city comptroller William Thompson, Jr., “that . . . relate to the question of not having drilling or a moratorium on drilling,” says Roy. But he mentions Upstate politicians with a different point of view: the Delaware County Board of Supervisors have passed a resolution against an all-out moratorium on drilling, and “leaders out in Elmira and Corning have had news conferences saying essentially, don’t delay any regulatory review of drilling.”  The Oil and Gas Association of New York (an industry group of which the energy company Chesapeake is a member) commented on the Environmental Impact Statement, as did public interest groups including Catskill Citizens for Safe Energy, Catskill Mountainkeeper, the Natural Resources Defense Council, Riverkeeper, the Sierra Club, and others.

Congressman, State Legislator Weigh in

At least one person in Washington, D.C. is keeping an eye on what’s happening in New York State. In his comments on the DEC’s environmental impact statement, Congressman Maurice Hinchey (D- 22nd District) cautions that “more than one thousand incidents of contamination from hydraulic fracturing have been reported to courts and state and local governments in a number of states including Colorado, New Mexico, Alabama, Ohio, and Pennsylvania.” Hinchey cites contamination of groundwater in Wyoming after hydrofracking in which the U.S. Bureau of Land Management measured benzene levels at “1500 times the ‘safe’ level for humans.” He suggests an alternative: “non-toxic fracturing fluids, such as those used in offshore locations and other environmentally sensitive locations.”

Rep. Hinchey also flags the DEC’s scant staffing, saying that the DEC should increase drilling fees to fund the extra staff needed to oversee thousands of potential new permit applications.  He also calls for the DEC to analyze, develop and require “best management practices” used in other fracking locations nationwide.

Hinchey draws attention in his comments to the case of the whistleblower Weston Wilson, an environmental scientist working with the EPA in Colorado, who in 2004 criticized the EPA’s conclusions about hydraulic fracturing as “scientifically unsound” and noted that it was “peer reviewed by individuals with direct conflicts of interest. Three of these individuals worked for the gas and oil industry while two others were former employees of the industry.”

It was this 2004 report that led lawmakers to rule that the EPA did not need to monitor hydraulic fracturing in the framework of the Safe Drinking Water Act, leaving states to handle all regulation and monitoring on their own. Congressman Hinchey has vowed to repeal the exemption through the passage of a bill currently before Congress.

EPA is not completely out of the picture. It has issued comments on the environmental impact statement, including a recommendation that the DEC “consider the need for a statewide prohibition against the future siting of critical gas well infrastructure – drilling rigs, mechanical equipment, chemical storage facilities, tanks and ponds – within the 100-year flood plain.” EPA notes that gas drilling contaminants and waste products – “such as drilling spoils, hydraulic fracturing chemicals and wastes, brine, oil and grease… [could] adversely impact water quality in rivers and downstream reservoirs.” This includes New York City’s watershed, for which the EPA writes it will be “seeking some special oversight . . . through cooperative agreements among regulatory agencies with authorities in the watershed.”

New York State Assemblyman Felix Ortiz, a Democrat from Brooklyn, has introduced a bill that would ban the use of toxic chemicals in hydrofracking fluid. The bill notes that fracking solutions “currently used by energy companies typically contain diesel and toxic substances such as benzene, ethyl benzene, toluene, and xylene.” Ortiz’s draft further notes that “[t]hese substances are carcinogenic and can cause mutation in both human and animal life, leading to health complications which can prove to be hereditary.”

Since, as Ortiz’s bill notes, the potential hazard from these chemicals is all the greater “when oil or gas extraction is taking place near a waterway,” he calls for use of “non-toxic, organic compounds” in the fracking fluids, “thereby alleviating a serious risk to public health.” The bill has thus far languished in committee.

Asked about the possibility of using non-toxic fracking fluids, Chesapeake energy lobbyist Thomas West downplayed the toxic nature of the standard fluids used. Indicating that he was speaking for himself alone, West said, “the problem with legislation like that is, there are many things that are carcinogens if put in concentrated form. But the types of materials they use in the fracking process are very diluted materials. It’s 99.5% water.”  West acknowledged that his firm had represented “some of the fracking companies.”

NY State DEC:  EPA Exemption? Not a Problem

How does New York State feel about the EPA exemption? According to DEC spokesman Yancey Roy, the state’s laws “essentially cover that exemption . . . we would be able to enforce all the necessary clean water regulations.” He added, “we think that our state laws essentially fill in where that gap of the exemption would be.”

But with its 19 gas and oil experts on staff, the NYS DEC will be hard pressed to cover new drilling as well as all other gas and oil projects in a state of 19 million people and 47,224 square miles. Citizens at a December 4, 2008 hearing at Sullivan County Community College repeatedly noted the DEC’s meager resources, saying “DEC is insufficiently staffed,” and “[t]he DEC doesn’t have enough staff.”

Roy later amended his description of the 19 staff members, by stating that there were other DEC workers who would assist, such as the “spills” staff who attend to 18,000 spills of various chemicals or other hazardous materials a year. Roy could not confirm the number of spills-related staff members. But the fact that specialists on spills might be commandeered should give further pause to people concerned about their water supply.

Some Neighborly Advice: Don’t Drink the Water

People concerned about hydrofracking in New York State can learn from the experience of Pennsylvanians like Beth and Stephen Hilyer of McKean County, PA. The Hilyers were disturbed one morning this past July to find that their pristine spring had been contaminated by a vertical well drilled by Seneca Resources a mere 800 feet away. “We complained,” said Beth, “and went to the [Pennsylvania Department of Environmental Protection], and they told us, ‘Don’t drink the water.’”

The Hilyers had done a chemical analysis of their spring water prior to the drilling. A post-drilling analysis gives a striking portrait of the contamination. Barium is a heavy metal that is regulated by the EPA, which can cause “gastrointestinal disturbances and muscle weakness.” Long-term exposure can cause high blood pressure. The Hilyers’ water post-contamination had a barium level of 3.30 milligrams per liter, 127 times higher than the allowed limit, and well over the EPA’s maximum contaminant level of 2.00 mg/L. The level of manganese in the water was also three times higher , while the total dissolved solids increased 118 times.

Seneca Resources , a subsidiary of National Fuel Gas Company of Williamsville, NY,  provided the Hilyers with bottled water for drinking and an external tank for household water.

Beth Hilyer says her husband warned the drilling company that their proposed well was too close to their spring. She hopes for improvements with Pennsylvania’s DEP. “I wish they had more inspectors… the DEP is stressed with too many new wells. And especially McKean County — it’s all rural and they don’t think that anybody would care.”

“That could have killed us, you know? It was horrible,” says Hilyer. “I don’t want anything like this to happen to someone else.”

Economic Impact: the Numbers Game, or Gaming the Numbers . . . .

One of the most potent arguments for expanded gas shale development is the economic one. In a time of scarce revenues, NY Governor David Patterson and the state legislature are looking for extra ways to fund the budget. Lobbyist Thomas West points to Pennsylvania’s revenues as a sign of what New York could earn, saying that “the way early returns are coming in from below the border, this will be worth a lot of money to Upstate New York.”

But pinning down exactly how much revenue New York’s portion of the Marcellus shale can deliver to the state through leases, licenses, and taxes is no easy task.  One thing is clear:  once a few big, round numbers get into the mix, they can have significant staying power. Deborah Fasser, a vice president at Corning Place Consulting, which is running a public educational campaign about shale gas drilling for the Independent Oil and Gas Association of New York, says the economic impact of a 300-gas-well scenario to New York State could be $1.4 billion annually.

An even bigger number making the rounds is $2.2 trillion. That number, from a report by the New York State Commission on State Asset Maximization (SAM) estimates that “the Marcellus Shale’s recoverable reserves are 363 trillion cubic feet of natural gas, which equates to a value of approximately $2.2 trillion at $6 per thousand cubic feet (MCF) in today’s dollars.” The report credits an article from The River Reporter, a Sullivan County regional newspaper, for this figure. But that article indicates that the 363 trillion cubic feet estimate was “based on numbers from Chesapeake Energy Corp., one of the largest stakeholders in the Marcellus area,” and no source is provided for the dollar amount.  So New York State is citing a newspaper, which is citing numbers from a gas exploration company, which did not confirm to Understanding Government how it determined this number originally.  What’s the bottom line?  The report concludes that “New York’s portion of the total could reach $210 – $315 billion, assuming that 10 to 15 percent of the reserves are located in New York.”

New Yorkers are left with an unclear picture of potential revenues. But the state’s blue ribbon panel does go on to describe a “good news” version of the impact of gas drilling. No environmental hazards are considered, property owners stand to benefit from lease agreements, and gas drilling even promises to “stimulate education, housing, food, travel, and entertainment sectors as well.” The report mentions not one single potential negative impact of gas drilling.

Do You Really Want 10 Million Thirsty People in New York City?

In calculating the potential costs of hydrofracturing, it’s impossible to ignore the potential costs to water drinkers (that would be everyone) in New York City, which presently gets its award-winning tap water from the Catskill region that could be affected by new gas drilling.  For now, New York City has a “Filtration Avoidance Determination” from the EPA for 10 years (granted in 2007). Following testing of New York City’s drinking water, the EPA exempted the city from having to build a water filtration plant.  But according to NYC comptroller William Thompson, Jr., without the EPA ruling, the City would have to build a filtration plant at a cost of between $6 billion and $10 billion.

Financing the construction of a $10 billion filtration plant, Thompson notes, “would add $730 million per year in debt service expense,” which in turn would require New York to increase water and sewer system budgets and rates by 30%, as well as paying for operating the filtration plant.

More Hidden Costs of Industrial Gas Production

In the absence of firm revenue projections, it’s difficult to say whether the economic benefits to the state would outweigh the loss of New York City’s clean, unfiltered drinking water supply.

But there are other potential costs as well. The Catskills are a prime tourist destination, and an increasingly popular area for second homes. People come to hunt in the woods and fish in pristine streams; there are organic farms and specialized agriculture. Catskill Citizens for Safe Energy notes in comments to the DEC that “if the pristine beauty, abundant wildlife and water and air quality are negatively impacted, high spending city folk will stop coming to the region.” CCSE has urged the state to balance short-term revenues “against the long-term loss of spending by visitors and second home owners.”

CCSE also warns that the gas industry may be shaping reports about the economic impact of drilling. “In some cases,” they write to the DEC, “the authors of the reports are employed by organizations that are funded by corporations or government entities that may have special interests.” The environmental organization recommends that an independent consultant do economic analysis and calls for “concerned citizens” to have “input equal to that of the interested corporations and government entities.”

Another question is whether land owners – many of whom are private citizens leasing land they own to companies like Chesapeake Energy – will get their money. Catskill Citizens for Safe Energy notes that Chesapeake Energy had to be forced to pay an award of $404 million to 8,000 landowners in West Virginia after “improperly withholding royalties on gas extraction.” The land owners had to fight Chesapeake all the way to the U.S. Supreme Court. CCSE has urged the DEC to consider the potential costs of litigation in its economic analysis of gas drilling.

Numbers like $315 billion, $1.4 billion per year, or $2.2 trillion in reserves make the Marcellus shale seem more like a gold mine. These numbers will bring out advocates for energy companies eager to tap the revenue stream, and cash-strapped states like New York might prove vulnerable to such wooing. However, what is the cost of a ruined aquifer? More important, what is the cost of safe drinking water? As of yet, no lobbyist, geoscientist, or New York State government employee charged with protecting the environment has been able to put a number on that.

This article is part of an initiative with Understanding Government, a Washington D.C. based nonprofit, called “Government In My Backyard”(GIMBY).

Newburgh, NY, Nov. 20, 2008 — Millions of gallon of water, laced with carcinogenic and other toxic chemicals, are pumped deep into the earth at pressures great enough to break solid rock and release natural gas stored in pockets. The process is called hydraulic fracturing, or “fracking.” Politicians with an eye for economic development cheer for the gas and the hoped for prosperity it will bring; also pleased are some property owners who have received fat signing bonuses for drilling leases. But what becomes of those millions of gallons of now contaminated water? If left in the ground, could they affect the groundwater supply? What about spillage or leakage from above-ground storage tanks? This scenario has alarmed people in many states in the past few years, and New York State now faces its own dilemmas with the prospect of drilling in the Marcellus Shale formation in Sullivan County.

Earlier this month, the Delaware River Basin Commission (DRBC) received its first application from a company, Chesapeake, to withdraw water from the Delaware River in the maximum amount of 999,999 gallons a day.

According to Sullivan County’s The River Reporter, the New York State Department of Environmental Conservation (DEC) has made four commitments on gas drilling: it will be “subject to a thorough environmental review,” the DEC will receive information on the chemicals used in the process, it will look at the storage safety of the large amounts of contaminated water used, and it will examine where, ultimately that water will be disposed.

One agency not involved in the oversight process is the U.S. Environmental Protection Agency. That’s due to an exemption gas drilling received from the Safe Drinking Water Act buried in the massive Energy Policy Act of 2005. This legislative loophole put the burden of jurisdictional regulation onto the individual states.

Problems seen in other states could make their way to the New York and Pennsylvania region. For example, ProPublica’s Abraham Lustgarten reports on how natural gas drilling may be endangering U.S. water supplies, in particular in states such as Colorado and Wyoming that have seen an increase in fracking. Lustgarten describes cases of contaminated well water, a woman who developed a rare adrenal tumor, a nurse who nearly died of organ failure when exposed to fracking chemicals, reproductive abnormalities in farm animals, and a house in Ohio that exploded from methane pushed up in the fracking process.

On November 19, Congressman Maurice Hinchey vowed “to aggressively press for the passage” of a bill he co-sponsored with Colorado representatives Diana DeGette and John Salazar. House Res. 7231 is “a bill to repeal the exemption for hydraulic fracturing in the Safe Drinking Water Act.” This would put the EPA back in the regulatory picture. The bill was introduced this September and is now before the House Committee on Energy and Commerce.

“It’s imperative that we safeguard our drinking water from any chemicals associated with natural gas drilling,” Hinchey said. “I understand the desire to expand natural gas development across the country, but we must do so carefully and intelligently. I’m encouraged that the New York State Department of Environmental Conservation is working to safeguard our water resources in New York, particularly in the New York City Watershed and Delaware River Basin. However, we must ensure that drinking water in all states is protected from toxic chemicals associated with hydraulic fracturing. We must avoid a situation in which a generation or less from now, people shake their heads and wonder how our government could have been so short-sighted and foolish to exempt hydraulic fracturing from the Safe Drinking Water Act.”

Although it has no official regulatory role at present, the EPA is keeping an eye on the unfolding situation. EPA spokesman John Senn, speaking from agency’s New York City office, said “We’re working with the State [government] and other partners to make sure that provisions to protect New York City’s water supply and watershed are maintained and strengthened… the EPA is keeping abreast of the state review of these issues.”

In the meantime, New York State is proceeding with its own regulatory steps. The Department of Environmental Conservation (DEC) will hold a public meeting at Sullivan County Community College’s Loch Sheldrake Campus on December 4, where they will accept verbal comments on a draft document, the Supplemental Generic Environmental Impact Statement. New York already has a Generic Environmental Impact Statement from 1992 that covers gas well permits; the Supplemental GEIS focuses on topics specific to the hydraulic fracturing process.

City of Newburgh Industrial Development Agency:
Mayor Nicholas Valentine, Chairman
Councilwoman Regina Angelo
Martin Boone
Councilman George Bowles, Jr.
Councilman Salvatore Cracolici
Councilwoman Mary Ann Leo-Dickinson
Darren McCurry

On July 31, 2006, four documents were recorded and filed with the Orange County Clerk’s Office in Goshen, New York.

Document 1: Deed transferred from the City of Newburgh Industrial Development Agency to 132 Broadway Associates, LLC

File #20060082551, Deed C/BK 12218 PG 0527, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH, that the Grantor [CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY], in consideration of $10.00, and other good and valuable consideration, paid by the Grantee [132 BROADWAY ASSOCIATES, LLC], does hereby remise, release and quitclaim upon the Grantee, is successors, or assigns of the Grantor forever,

ALL those certain plots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and being in the State of New York, County of Orange, and the City of Newburgh, more particularly described on Schedule A…

Schedule A lists:

1. 8-12 Lander St. (SBL:30-3-22)
2. 14-16 Lander St. (SBL: 30-3-21)
3. 132-134 Broadway (SBL: 30-3-24)
4. 136 Broadway (SBL: 30-3-25)
5. 138 Broadway (SBL: 30-3-26)
6. 140 Broadway (SBL: 30-3-27)
7. 142 Broadway (SBL: 30-3-28)
8. 142A Broadway (SBL: 30-3-29)
9. 144 Broadway (SBL: 30-3-30)
10. 148 Broadway (SBL: 30-3-32)
11. 6-8 Johnston St. (SBL: 30-3-33)
12. 14A-16 Johnston St. (SBL: 30-3-37)

The Grantee [132 Broadway Associates] herein shall undertake, at its sole cost and expense, to construct a building (or buildings) with approximately one hundred thousand (100,000) square feet in the aggregate suitable for commercial, light industrial, office, educational, and/or retail use, or a combination thereof, in accordance with the performance schedule attached hereto and made a part here of as Schedule B together with an area of public space approved by the City of Newburgh (such construction is hereinafter referred to as the “PROJECT”). IDA shall cooperate fully with the Grantee herein in any and all applications, proceedings and appeals made or prosecuted by or on behalf of the Grantee herein in connection with the PROJECT, and IDA agrees to execute and deliver all documents, consents or authorizations reasonably required of IDA by any governmental authority with respect thereto.

Schedule B states:

PROJECT Progress Benchmarks

1. Complete demolition of buildings – 90 days from June 30, 2006.
2. Receipt of Planning, Zoning and ARC approvals – 180 days from June 30, 2006
(GRANTEE [132 Broadway Associates, LLC]) must apply for same within 60 days of June 30, 2006).
3. Issuance of Building Permit – 9 months from June 30, 2006.
4. Issuance of Certificate of Occupancy for all of PROJECT – 30 months from June 30, 2006. A temporary Certificate of Occupancy shall be acceptable provided it is replaced with a permanent Certificate of Occupancy within sixty (60) days of its issuance.

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

As of the date which is thirty (30) months from June 30, 2006, if it is determined upon an inspection by the City of Newburgh Code Compliance Supervisor that the performance requirements of said Schedule B have not been completed timely or the completion time for such has not been extended by IDA in writing, the Grantee [132 Broadway Associates, LLC] herein shall, within ten (10) business days fro the service of a notice of said determination upon it… reconvey good and marketable title to the property described in Schedule A herein to IDA.

…TOGETHER with all right, title and interest if any, of [the IDA] in an to any streets and roads abutting the above described premises to the center lines thereof,
TOGETHER with the appurtenances and all the estate and rights of the Grantor in and to the said premises,
TO HAVE AND TO HOLD the premises herein granted unto the Grantee, its heirs, successors and assigns forever.

IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal the day and year first above written.

Document 2: Mortgage between MORTGAGOR: 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; AND the City of Newburgh Industrial Development Agency and MORTGAGEE: Manufacturers and Traders Trust Company
File #20060082552, Mort/BK 12218 PG 0534, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

(b) The obligations and agreements of the Agency contained herein or therein shall not constitute or give rise to an obligation of the State of New York or the City of Newburgh, New York, and neither the State of New York or the City of Newburgh, New York shall be liable thereon… Neither the members of the Agency, nor any person executing this Mortgage on its behalf shall be liable personally under this Mortgage nor recourse shall be had for the payment of the principal or interest on the indebtedness evidence by the note or any claim based on the mortgage or otherwise in respect hereof, or based upon or in respect to this Mortgage or any modification of or supplement hereto against any past, present or future member, officer, agent or employee, as such, of the Agency or any successor or political subdivision, either directly or through the Agency or any such successor, all such liability of such members, officers, agents (except for the Borrower), servants and employees being, to the extent permitted by law, expressly waived and released by the acceptance hereof and as part of the consideration for the execution of this Mortgage. Any judgment or decree shall be enforceable against the Authority only to the extent of its interest in the property and any such judgment shall not be subject to execution on or by a lien on assets of the agency other than its interest in the property.

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written. [June 30, 2006]
132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

37. PROVISIONS RELATING TO THE AGENCY. Notwithstanding any other terms or conditions contained in this Mortgage:
(a) This Mortgage is execute by the Agency solely for the purpose of subjecting its rights to the rights of the Mortgagee and for no other purpose. All representations, covenants, warranties are hereby deemed to have been given by the Borrower and not by the Agency.

27. (c) Upon the happening of an Event of Default, whether or not foreclosure proceedings have been instituted, Mortgagor shall, upon demand, surrender possession of the Premises to Mortgagee.

26. ENVIRONMENTAL, REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION. Mortgagor represents and warrants, and continues to represent and warrant as long as this Mortgage is in effect, to Mortgagee that (a) to the best of Mortgagee’s knowledge, Mortgagor and the Premises are in compliance with each statute, regulation or other law and each judgment, order or award of any court, agency or other governmental authority or of any arbitrator (individually an “Environmental Requirement”) relating to the protection of any water, water vapor, land surface or subsurface, air, fish, wildlife, biota or other natural resources or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of any chemical, natural or synthetic substance, waste, pollutant or contaminant (collectively “Regulated Materials”), (b) Mortgagor has not been charged with, or has received any notice that such Mortgagor is under investigation for, the failure to comply with any Environmental Requirement, nor has Mortgagor received any notice that Mortgagor has or may have any liability or responsibility under any Environmental Requirement with respect to the Premises or otherwise, (c) to the best of Mortgagee’s knowledge, the Premises have ever been used for (i) the storage, treatment, generation, transportation, processing, handling, production or disposal of Regulated Materials, except as permitted by law, (ii) a landfill or other waste disposal site or (iii) military purposes, (d) no underground storage tanks are located on the Premises, (e) the environmental media at the Premises do not contain Regulated Materials beyond any legally permitted level, (f) to the best of the Mortgagee’s knowledge, there has never been any release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises or, to the knowledge of the Mortgagor, within the immediate vicinity of the Premises and (g) Mortgagor has not received any notice of any such release, threatened release, migration or uncontrolled presence… If at any time Mortgagor obtains any evidence or information which suggests that potential environmental problems may exist on, at or about the Premises, Mortgagee may request Mortgagor, at Mortgagor’s own cost and expense, to conduct and complete investigations, studies, sampling and testing with respect to the Premises requested by Mortgagee. Mortgagor shall promptly furnish to Mortgagee copies of all such investigations, studies, samplings and tests. Mortgagor shall (a) conduct and complete all such investigations, studies, samplings and testing, and all remedial, removal and other actions necessary with respect to the Premises, in accordance with all applicable Environmental Requirements and promptly furnish to Mortgagee copies of all documents generated in connection therewith and (b) defend, reimburse, indemnify and hold harmless Mortgagee, its employees, agents, officers and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, the violation of, or other liability or responsibility under, any Environmental Requirements, or the release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises including attorney and consultant fees, investigation and laboratory fees, court costs and litigation expenses…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

WITNESSETH, to secure (a) the payment of indebtedness in the principal sum of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND ($1,483,000.00) DOLLARS, lawful money of the United States, together with interest thereon and other charges with respect thereto, to be paid according to certain demand note, dated on or about June 30, 2006, made and delivered by Mortgagor to Mortgagee or (the “Note”)… Mortgagor hereby mortgages to Mortgagee, as continuing and collateral security for the payment of any and all indebtedness, liabilities and obligations of Mortgagor to Mortgagee… the premises described on the attached Schedule A. [Note; same properties listed in Schedule A above.]

Document 3: General Assignment of Rents between ASSIGNOR: 132 Broadway Associates, LLC, and ASSIGNEE: Manufacturers and Traders Trust Company
File #20060082554, A/LR/BK 12218 PG 0601, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WHEREAS, Assignee desires to grant Assignor a conditional license to collect and use the income derived form the Premises and to take certain leasing actions in the ordinary course of business.

4. …monies in the amount of $1,483,000.00 were loaned thereon and the mortgage tax was duly paid.
Mortgage tax paid $15,571.50.

4. LICENSE TO TAKE CERTAIN LEASING ACTIONS.

(b) The license granted by Assignee under this Section 4 does not extend to… (iv) the grant of any option to purchase any part of the Premises or any right of first refusal or (v) any Leasing Action that results in a Lease (A) to an affiliate of any Assignor, (B) with a rental rate which is less than a reasonable market rental rate, (C) permitting prepayment of rent more than one month in advance or (D) demising more than twenty percent (20%) of the rentable space of the Premises or such higher or lower percentage as Assignee may from time to time agree to in writing…

255 AFFIDAVIT OF EXEMPTION, GENERAL ASSIGNMENT OF RENTS, June 30, 2006

IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and year first above written.

132 BROADWAY ASSOCIATES
By: [signed] Robert Carchietta, Manager/Member

Document 4: Mortgage Consolidation Modification and Extension Agreement between 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; the City of Newburgh Industrial Development Agency AND Manufacturers and Traders Trust Company
File #20060082553, M AG/BK 12218 PG 0565, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH:

WHEREAS, the Mortgagee is the owner and holder for the value of the following Mortgages, together with the notes or other evidences of indebtedness secured thereby, to wit:

1. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $30,000.00 dated May 24, 2005 and recorded in the Orange County Clerk’s Office on June 6, 2005, in Liber 11866 of Mortgages at Page 377, on which there is now due and owing the unpaid principal sum of $30,000.00.

2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

WHEREAS, the Mortgagor has executed and delivered to the Mortgagee its Restated Non-Revolving Grid Note in the principal sum of $2,100,000.00 which Note is secured by the mortgages referred to and consolidated herein, with interest as stated in said Note and to be paid in accordance with said Note…

3. …a certain Mortgage Modification and Extension Agreement dated as of June 30, 2006, was entered into between MANUFACTURERS AND TRADERS TRUST COMPANY, as mortgagee, and 132 BROADWAY ASSOCIATES, LLC, as mortgagor, and is to be recorded simultaneously herewith, with regard to the following mortgages:

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties, and for the purpose of carrying out the intention above expressed, the Mortgages and the Mortgagor hereby mutually covenant and agree as follows:

That the liens of the said Mortgages, hereinabove mentioned, hereby are spread, consolidated and coordinated so that from and after the date hereof the same are hereby consolidated into one Mortgage covering the premises herein described, running concurrently as one Mortgage, and constituting a single first lien upon the premises mortgage in the amount of $2,100,000.00…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

2. RESTATED NON-REVOLVING GRID NOTE

Simultaneously herewith, the Mortgagor shall make and execute a Consolidated Mortgage Note in the principal amount of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS to the Mortgagee.

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

3. MATURITY DATE

All of the principal, interest and any other charges that are owned under the Mortgages, and the Restated Non-Revolving Grid Note must be paid in full by December 31, 2006.

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

36. MISCELLANEOUS. This Mortgage is absolute and unconditional…

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written.

In the Presence of:

MAUFACTURERS AND TRADERS TRUST COMPANY
By: [signed] Mark Stellwag, Admin. Vice President

132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

255 AFFIDAVIT, MORTGAGE MODIFICATION AND EXTENSION AGREEMENT

4. That new money in the amount of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND AND NO/100 ($1,483,000.00) DOLLARS was loaned thereon and the mortgage tax in the amount of $15,571.50 was duly paid.

1. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $30,000.00 dated May 24, 2005 and recorded in the Orange County Clerk’s Office on June 6, 2005, in Liber 11866 of Mortgages at Page 377, on which there is now due and owing the unpaid principal sum of $30,000.00. MORTGAGE TAX PAID $315.00
2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00. MORTGAGE TAX PAID $3,082.00
3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293, 500.00. MORTGAGE TAX PAID $3,082
4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

All notes and Mortgages were combined, consolidated and made equal and coordinate liens on the above-described premises without priority of one over the other to constitute one first Note and Mortgage and single lien for the total sum of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS upon said premises, which shall be paid with interest, in accordance with the terms and conditions of the said note and Mortgage.

See also the article in this week’s Mid-Hudson Times.

To quote Edmund Burke:
All that is necessary for evil to succeed is that good men do nothing.

To help increase awareness and facilitate actions of good conscience, please make use of the links below.

Click here to download a copy of the Complaint filed against Michael Gabor and John and Jane Does numbered 1 through 50.

Click here to view the Electronic Freedom Foundation’s page on Bloggers’ Rights.
Click here to read a news article about Apple losing its case against bloggers.
Click here to read about a case in Delaware that protects anonymous blogger’s freedom of speech.
Click here to read the First Amendment Center’s overview on blogging.
STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION:
Click here for the Anti-SLAPP Resource Center.
Click here for New York State’s code relating to this:
CIVIL RIGHTS LAW
ARTICLE 7. MISCELLANEOUS RIGHTS AND IMMUNITIES
NY CLS Civ R § 70-a (2004)
§ 70-a. Actions involving public petition and participation; recovery of damages
Click here for the Center for Media and Democracy’s article “SLAPP Happy: Corporations That Sue To Shut You Up.”
*****
Click here to view the MidHudson Times article about the controversy

Newburgh: a city on the scenic West Bank of the Hudson River, located in the state of New York, in the United States of America.

The United States of America has a wonderful Constitution, that includes the First Amendment, to quote:

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Unfortunately there has been an attempt to stifle the precious freedom of speech in this City. A complaint has been filed by a Douglas Dollinger, Esq., and 96 Broadway LLC, against Michael Gabor, a City of Newburgh resident, and John and Jane Does numbered 1 through 50 as co-defendants.

Click here to see the original Times-Herald Record article that provoked the complaint.

Click here to read a more recent Times-Herald Record article about the lawsuit.

Click here to read Michael Gabor’s Letter to the Editor regarding this complaint.

The Newburgh Advocate has published the following videos to increase public awareness of this situation.

Click here to see excerpts of the City Council meeting of June 12, 2006, and the Architectural Review Commission meeting of June 13, 2006.

Click here to see a higher resolution version of the City Council meeting excerpts of June 12, 2006, where you may also download the video file.