$10,000 Legal Opinion!

This article appeared in the Townsman, March 26 edition

The recent discovery that the Town of Woodstock paid approximately $10,000 in 2008 for a legal opinion concerning its right to improve the upper Comeau parking lot without violating the provisions of the thus far unexecuted Comeau Easement has directed more focus to the document, which legality had been upheld by a decision rendered last November by the New York State Appellate Court.

The Easement was developed from response to the unpopular proposal in 2002 to locate the Town’s highway facility on a portion of the Comeau property, a proposal soundly rejected by a referendum in March of that year. Subsequently, a committee was appointed by the Town Board which purpose was to propose a means of “best protecting” the property.

After a lengthy deliberation the committee proposed putting a conservation easement on the property. The document delineated “open areas,” “forested areas” and “governmental areas” and placed unique restrictions and/or conditions on each one. For instance, forested areas were to remain such, with pruning and cutting permitted only for the purpose of enhancing the forest’s health or protecting the public’s safety. Governmental areas, which include the existing town offices plus an additional one-acre envelope, the parking lots, the Historical Society building and a two-acre area at the bottom of the property set aside for future needs, are permitted to expand their uses up to a certain, defined point. Lands already cleared would be maintained as meadows. The Woodstock Land Conservancy (WLC), the proposed co-signer of the document, would be the agency that would enforce the Easement provisions.

The Easement was overwhelmingly approved in a 2003 referendum. It was not until late last year that its long journey through the courts was finally brought to an end by the Appellate Court decision. Since that time the Town and the Conservancy have yet to execute the document.

On May 20, 2008 the Town Supervisor, Jeff Moran, in response to a number of soccer parents concerned with unsafe conditions, asked for a resolution from the Town Board to permit expansion and improvement to the upper Comeau parking lot and Comeau Road in order to accommodate the large numbers of vehicles chaotically thrown together during soccer meets. After a meeting that continued until almost 1:00 AM the resolutions to protect the public’s safety were tabled in deference to Councilman Chris Collins’ concern, echoed by Councilpersons Jay Wenk and Liz Simonson, that the improvements might jeopardize the then still pending litigation over the Easement. According to minutes of the meetings, “Collins stated he is willing to take action only with written permission from Steve Barshov.” Barshov, of Sive, Paget & Riesel, is the New York City attorney representing the Town in the Easement litigation.

The $10,000 six-page Barshov opinion, dated July 14, 2008, gave a clear go-ahead for the parking lot improvement, but equivocated on the question, “Could improvements or alterations to the Comeau property undertaken now create complications for the Town in the future when implementing the Easement after the current litigation is ended?”

One of Barshov’s suggestions was for the Town Board to discuss the proposed improvements with the WLC. The WLC, however, in response to a similar overture in 2007 when the Town wanted to install a structure for the soccer league that is larger than what would be allowed by the Easement, took the position that it would not involve itself in these kinds of discussions until the easement was properly signed and executed. In that instance the Town went ahead and installed the structure without seeking permission or legal opinion.

(The Town is currently in the process of seeking a variance from the zoning law that would permit expansion of the upper Comeau parking lot. A Zoning Board of Appeals decision is expected later this month. A recent determination of the Ulster County Planning Board has thrown a cloud over the issue, and the variance is by no means a done deal. Meanwhile, the WLC in a communication last year addressed to the Town before receipt of the Barshov opinion, reaffirmed its position not to intrude on matters involving proposed Comeau improvements until the Easement is signed.)

The $10,000 legal opinion is a pittance compared to the amount, some estimate to approach $175,000, spent defending the Easement against the lawsuit brought against the Town by Vincent LaBabera. Now that the lawsuit is dismissed, and attention focused on actually executing the document, attention has been drawn to the language of Section 7.02 of the Easement, which reads:

“This Easement can be terminated or modified in accordance with the common and statutory law of the State of New York applicable to the termination and modification of easements and covenants running with the land.”

This language is of interest because legislative bodies, which includes town boards, have the power to condemn conservation easements, as much as they have the power to condemn property when such condemnation is necessary to effect a public improvement or provide for the public’s health, safety and welfare. For instance, if a future town board wanted to permit a highway facility on the Comeau property it could do so after a minimum of three members of the board voted to initiate a condemnation proceeding against the Easement.

When asked for comment on the $10,000 legal charge, Councilwoman Terrie Rosenblum responded, “…We [do not] get any additional benefit by using a Park Avenue lawyer whose practice is based in NYC. “ Rosenblum further stated she felt the Town’s land use attorney, Drayton Grant, would be capable to answer such questions as had been addressed to Barshov.

Supervisor Moran responded, “I would characterize the work performed by Mr. Barshov in this instance as approaching the very high end of expensive, given what the Town is accustomed to paying Town Attorney Futerfas and Town Land Use Attorney Grant. While I did not agree that such a communication was necessary in the first place, I respect Councilman Collins’ wish to operate within both the letter and spirit of the draft agreement. I was, however, greatly surprised at the length of the response and the concomitant cost of same to the Town, and would urge the Board to deliberate very carefully before again engaging a Park Avenue law firm, and incurring the high overhead costs that necessarily entails, for legal work within the Town of Woodstock.”

Councilpersons Jay Wenk, Chris Collins and Liz Simonson offered no response.