Justice Mark Montour
Last week, Alan Bozer of the law firm Phillips Lytle, attorney for Bridgewater Estates LLC, appeared before State Supreme Court Justice Mark Montour to defend his clients' plan to build a 138-unit apartment complex, on Rt. 104 and Model City Rd. in Lewiston.
In the past few weeks, Bridgewater has suffered several setbacks.
The town's Zoning Board had a public hearing two weeks ago on two variances and a special-use permit for the project, but adjourned the matter because of the litigation.
Last week, the Planning Board tabled a request for a special-use permit, noting its decision should be made after the Zoning Board made its decision.
That brings us to the courtroom of Justice Montour.
While declining to grant a restraining order halting the Bridgewater project altogether, the judge ruled that the plaintiff, Lewiston International Business Park, an industrial park located adjacent to the property-- owned by Modern Corp. and its president, Sonia Washuta-- would have the standing needed to challenge the legality of the Bridgewater deal, should the town approve it.
Before we plunge into the record of what happened at court, the reader should know a few facts:
* Bridgewater is a planned 138-unit apartment complex. While the developers claim it will be a senior housing complex, there is nothing in the contract that prevents it from being a low-income housing project.
* According to IDA records, former Town of Lewiston Supervisor Steven L. Reiter is a 19 percent owner of the project.
* Reiter as supervisor signed the (SEQR) environmental impact statement for the project, which stated that there was no question that there was no negative environmental impact from building the project, so much so that Reiter waived all studies including traffic studies. Reiter also voted for the property's rezoning and appeared to have a hand in the approval process through the town's Zoning and Planning boards.
* Although he abstained from directly voting on the project (even though he directly signed the SEQR form), Reiter led an all-Republican town board to rezone his mother's property from residential to general business zoning. The land, for sale for $350,000 before it was rezoned as residential property, was sold two weeks after it was rezoned to general business to Bridgewater for $1.4 million.
* Bridgewater partners Anthony Cutaia and Fred Hanania gave Reiter a 19 percent ownership interest in the $12.3 million development, according to IDA records.
* Reiter waived all discussion on environmental impacts when he signed the short form Environmental Assessment Form saying there was no adverse impacts arising from the planned project.
In court last week, Montour denied a motion for a restraining order on the project, calling the motion premature, but he had several questions about Reiter and his role.
Montour's decision puts the project back with the Planning and Zoning boards and ultimately the Town Board. If they deny the project, there is no lawsuit.
If they approve it, then the lawsuit will be heard.
Charles D. Grieco, of the law firm Jaeckle, Fleishmann & Mugel, represented Lewiston International Business Park at the hearing last Wednesday.
In court Grieco made no bones about why he was challenging the town's approval. It was not just opposition to the town's approval of four-story buildings on country property, with senior citizens coming and going on a busy truck route.
It was Reiter's conflict of interest.
Steven L. Reiter
The following is from the transcript of the hearing.
GRIECO: … then supervisor Steven Reiter had (a conflict) by virtue of the fact that his mother owns that property, and … Mr. Reiter has or had an interest in Bridgewater, and (as) supervisor (he) did participate in the SEQR (environmental) review among other elements of the approvals….
BOZER: ... any statement or conclusion that Steven Reiter has an interest in Bridgewater Estates is simply a mistake, or people are taking liberties with the truth. The one place where a mistake was made (the IDA application) has been corrected. But we can tell the Court that Marjorie Reiter owns the property … and that Steven Reiter has no involvement in that. … And if there is some deal between a mother and a son, I'm unaware of it, and I'm not sure how anybody's going to get at it.
THE COURT: Mr. Reiter… he was a supervisor at that time?
MR. BOZER: His term ended in '13.
THE COURT: How long was he the supervisor for?
MR. BOZER: I believe two terms….
THE COURT: Did he hold a government position before that?...
MR. BOZER: He was superintendent of highways.
THE COURT: So he was involved with government for some time?
MR. BOZER: Correct.
THE COURT: In his capacity as the town supervisor, the allegation is … that there's a conflict of interest. … Whether he's related to, obviously, Marjorie Reiter, is that right?
MR. BOZER: That's his mother.
THE COURT: The land owner, that's his mother. There's allegations again that it wasn't brought to anyone's attention beforehand that he was related to this particular parcel of property at any time. Isn't there some sort of standard, higher standard for the government official? … as a member of -- elected by the public, to inform other board members that he has a potential interest in here? and … he then participated in some of these rezones or some of these actions by the town which now permitted these rezones to go forward? Shouldn't he have --the appearance of impropriety, would you call it that?
MR. BOZER: There was a vote by the town board involving this property. At that time Mr. Reiter abstained from voting. …It's our belief that Mr. Reiter stated his interest as a reason for abstaining during that second vote. We have requested … a copy of the transcript of that hearing. Regrettably that transcription is not available. … Your Honor is asking about… full disclosure. We believe it took place, but we don't have the proof that it. …
THE COURT: Wasn't he abstained from the vote on the rezoning?
MR. BOZER: Not on the rezone….
THE COURT: So on this particular project he abstained from what?
MR. DAVIS (town attorney): It would have been site plan. … Once it went through the Planning Board, there was a recommendation to approve the project to the Town Board, and Steve Reiter abstained from that vote.
THE COURT: Was the town lead agency on this for environmental review? … Didn't Mr. Reiter participate actively in that?
THE COURT: So he did participate… If the SEQR was a positive declaration (a determination by the town that there was problems with environmental issues) there could have been difficulties with this project going forward, but there was a negative declaration… And that Mr. Reiter as supervisor at that time signed off…. I'm looking at the affidavits… it shows the SEQR, and (Reiter) was the individual who signed off …
MR. GRIECO: With respect to the SEQR, (Reiter) signed … although there were multiple approvals necessary, there's no evidence … there was any … review conducted … the sum total of the Town Board's discussion of environmental issues (was) when they (voted to) approve the project. The only other SEQR record … is (a document) signed by Mr. Reiter (on his own project)…. That was done before they got comments back from their own engineer about environmental issues, and any other agencies, and they never went back and revisited that. They simply…approved the project.
THE COURT: Maybe that was what I was asking, Mr. Bozer. They related more to the supervisor at the time, whether or not there's some sort of appearance of
Impropriety; therefore is there a question on whether or not there's an underlying zoning in this instance was proper. That's where I was going….
MR. BOZER: … On ... Reiter signing off … Someone had to do it.
THE COURT: But did he participate? I know the questions you go through. … If the town is lead agency and Mr. Reiter as the supervisor and Mr. Reiter is going through all those questions on the SEQR form… He's the one that asks the questions. Is your SEQR evaluation, your meeting, is that coordinated with the town and the planning board?.... Ultimately there's a SEQR meeting, right? There's a review meeting where a body meets. Who is composed of that body other than the town board? At the time that they go through and read all these questions on the SEQR:, 'is there a traffic problem?' 'Are there … public opinion problems?' You go through all the questions… The supervisor usually is the one that reads the question, and the town board, if they're in conjunction with the planning board, they all vote, and if there's a determination of whether or not there's some moderate effects which they have to address as well… generally the supervisor is the one who oversees that. Is that what happens in Lewiston?
MR.DAVIS …I'm not prepared today to talk about the exact process that SEQR went through.
THE COURT: I'm just looking at it from experience: that the supervisor is generally the one who oversees it, asks the questions, fills in the dots, and then it's signed off on eventually. And if at that time, you know, it wasn't mentioned that there was a conflict of interest, then there could be some -- I'm not arguing Mr. Grieco's case, but there could be some appearance of impropriety….
MR.DAVIS I don't know the supervisor's role in this project… The planning board could be involved. They could make recommendations… I wasn't prepared to speak about the SEQR --
THE COURT: … My understanding …is that you have a coordinated review with the town planning board, possibly, and the town board, and the supervisor is generally the one who asks the questions … and then they come to a conclusion whether or not there's a negative declaration or if there's a positive declaration and something has to be issued, 'we need another traffic study,' the supervisor is generally the one who --…
MR. GRIECO: … If (Reiter) felt it was appropriate to recuse himself… from the vote on the approval, it was clearly appropriate for him to recuse himself from the process of … reviewing the environmental impacts associated with the project….
Who could argue with that?
At the end Justice Montour adjourned the case. He said "I want the town to finish their work first."
But it was clear to some that the town's work, in light of what Reiter had done, and some of the judge's questions, clearly has just begun.
|Alan Bozer represents Bridgewater LLC
||Charles Grieco represents the owners of Modern Disposal