So basically the question is, if this motion was SO simple, and it was, why did she need the extension to a total of about seven weeks to respond?
The answer is that she did not need the extension at all, she just wanted to run the clock out on the statute of limitations, so that I could not amend the petition to satisfy her objection, the basis of which formed her motion to dismiss.
The extension was a trick. Nothing stopped her from making the motion to dismiss, and dealing with the extension later.
By the way, to date the "record" that Drayton needed to put in order still is not in order. The planning board meeting minutes are still for the most part not approved. Drayton does not seem to mind anymore though, now that her extension served its REAL purpose.
Sleazy.
I stood before the town board and explained this sleazy trickery to the board. You can view it here:
http://www.ustream.tv/recorded/9737321
Then I wrote a letter to the judge, Sept. 22:
Dear Judge Gilpatric:
I do not know how to respond formally to the communications I received from Woodstock
I filed the petition on July 28 and the parties were served on July 29 and July 30. On August 17, which was eighteen days after all parties were served, Ms. Grant telephoned me to ask for an extension to respond to my petition. Before answering, I asked for her reasons. She told me that “the record” was not ready. Ms. Grant and I discussed the problem of “the record,” which is that the Woodstock Planning Board has not approved its meeting minutes in over a year, and this constitutes a lot of work. In fact, I previously asked the Executive Director of the Committee on Open Government to address the Planning Board’s failure to make even draft minutes available for inspection within two weeks of meetings, in compliance with New York State Open Meeting Law. That was in March, and so the problem of the Planning Board “record” was well known to the Town Board and the Planning Board. Ms. Grant also told me that she was planning a vacation of two and a half weeks, starting only three days after the day of her phone call, and extending past the original response date.
Before making a decision whether to grant an extension to Ms. Grant, I called an attorney and asked his advice. He encouraged me to grant the extension since extensions are routine and that it was the courteous thing to do.
I emailed Ms. Grant late that night, reviewing her reasons for requesting the extension. (email record is attached.) As it turns out, Ms. Grant’s rationale for wanting an extension was only to run the clock, so to speak, so that the statute of limitations would run out before I had a chance to name as defendants the two additional parties that Ms. Grant argues I should have named. In fact, Ms. Grant’s motion to dismiss does not rely in any way on preparing the Planning Board’s “record,” and the response she produced in the form of a motion to dismiss did not require an extension of three weeks in addition to the extra time I gave the respondents in the original petition (which was about a week more than I was required to give them.)
There was some confusion on my part about the difference between response date and return date, resulting in my understanding that Ms. Grant was asking for two extra weeks when really she was asking for three extra weeks. We worked out that misunderstanding, which is documented in the attached emails, however in the process of doing so, Ms. Grant affirmed that she would “need” the extra week.
The only reason that Ms. Grant “needed” the extra week was to exceed the statute of limitations on my ability to add named parties to the list of respondents. She lied about her reasons for “needing” an extension at all, knowing that I am not an attorney and am filing this petition pro se.
If I had not granted Ms. Grant her extension, perhaps she would have asked the court for the extension, and then would have been guilty of lying to the court about her reasons for “needing” the extension. Because Ms. Grant cited the need to prepare “the record,” the burden should be on her to produce at least some work that does require “the record” in some small way. She should not be rewarded for lying about needing to prepare “the record” only to buy time to let the statute of limitations run out.
In terms of the additional parties needing to be named, the two parties in question are the applicant (RUPCO,) and the owner of the land, (EVK Realty.) Ms. Grant cites Section 1001 of the CPLR in order to define RUPCO and EVK as parties “who might be inequitably affected by a judgment in the action.” Each of these parties has its own interest in seeing the housing project built, but neither of these parties has anything to do with the Town of Woodstock’s failure to do its job, and that failure is the only reason I brought this action against Woodstock.
EVK’s land has been under contract with RUPCO for over five years. EVK understands that RUPCO is an applicant and is not guaranteed approval of the proposed housing project. EVK has accepted this risk, and my petition is part of that risk. Therefore, this petition does not subject EVK to any inequitable treatment. In addition, EVK is bound for another 4.5 years under the current contract with RUPCO, therefore whether the project is built in one year or three years, EVK would not be permitted to sell the land to another buyer in any case. Upon information and belief, some contiguous neighbors offered to purchase the land in question from EVK, but EVK was not able to sell because it is bound by the contract with RUPCO.
RUPCO was made aware of my petition on July 29, and I am in possession of videotape showing a RUPCO official looking at and commenting on the petition at the Planning Board Meeting during which the Board was served with the petition, calling the petition “amusing.” Later in that meeting, after that official’s departure, and also on videotape, there was a discussion of what the Planning Board would do with the Petition, and it was decided to send copies to Ms. Grant, as well as to “the applicant” (RUPCO.) Therefore, RUPCO has been aware of this petition for as long as the Town of Woodstock
I would like to address Ms. Grant’s definition of RUPCO and EVK as indispensible parties, in that they are, according to CPLR Section 1001, “parties... who might be inequitably affected by a judgment in the action.” RUPCO is an applicant before the Woodstock Planning Board. There is a process, which must be followed. Part of that process requires the Woodstock Planning Board, under the rules of SEQRA, to take a hard look at issues, particularly that have been raised as problematic. By joining RUPCO as defendant, the Woodstock Planning Board’s hard look and RUPCO’s hard look become conjoined, and it is impossible to differentiate between the two. To date, the problem with the Woodstock Planning Board’s assessment of RUPCO’s application materials is that where any sort of depth is needed to analyze problematic areas, the Woodstock Planning Board has not pressed RUPCO to answer questions or justify decisions. While Woodstock Planning Board does not in theory have the same interests in this housing development that RUPCO has, in fact Woodstock Planning Board, through simple passivity, has let itself become captured in an economic sense by RUPCO’s financial, political, and legal domination.
Just as business captures the regulatory agencies that are supposed to regulate them, as in the case of BP Oil, which was “self-regulating,” Woodstock Planning Board has been captured by RUPCO in the application process of Woodstock Commons. The Planning Board has failed to think independently and do its job to evaluate the information contained in RUPCO’s application materials. The reason that Article 78 is the appropriate type of action to take against the Planning Board of Woodstock is because it is the town, not the applicant, that is guilty of arbitrary and capricious decision-making. RUPCO has done nothing arbitrarily. Everything RUPCO has done has been in the interest of building the housing project. The Planning Board is supposed to evaluate what RUPCO brings to the table. By joining RUPCO to the Planning Board, the independence of the Planning Board is intentionally compromised, which defeats the purpose of the Article 78 petition.
The simpler reason that I did not name RUPCO and EVK Realty or any other party I could think of is because I did not know that parties other than the official/agency that is challenged needs to be named in an Article 78 petition, if in fact that is even true in all cases. If your honor decides that it is necessary to name one or both of these parties, and subsequently excuse RUPCO from many causes of action and argue my case of regulatory capture, then of course I would be happy to amend the petition and serve one or both of these additional two parties. Neither attorney reviewing my petition advised me to name both of those parties, so I did not. The fact that the statute of limitations has been exceeded is entirely a function of Ms. Grant’s manipulation of my innocence, inexperience, and good will towards the Town of Woodstock
In addition to and in concert with Ms. Grant’s dishonesty and manipulation, the Planning Board has been going through the motions of approving meeting minutes at their last three meetings, although they have not achieved even ten percent of their goal of approval of over a year’s worth of meeting minutes. This feeble effort does not reflect a “need” to prepare “the record” for a lawsuit. It was a charade, a red herring, designed only to make it look like a response to my causes of action was forthcoming. I include with this letter the three Planning Board meeting agendas, which show that many weeks of meeting minutes are on the agenda for approval. During the week that the Planning Board had not yet been granted the extension, the time allotted to approve two meetings’ of minutes was five minutes. After the extension was granted, the time allotted to approve over twenty meetings’ of minutes was zero minutes, which is a clear sign that no effort or time was seriously planned to be spent approving meeting minutes and preparing “the record.”
In light of Ms. Grant’s dishonest behavior and bad will, I ask your honor to grant me an extension so that I may amend and add two parties to the petition, which is something that should have been well within my right to do had the respondents’ attorney not lied and manipulated me in order to avoid answering my petition. If you do not think these two parties need to be added, then I would prefer not to add them at all since I think their exclusion does not affect them “inequitably.”
While I am not at all certain that there is any legal precedent for my request, I am familiar with the legal principle in criminal court, when a defense attorney requests an adjournment that the clock on the statute of limitations stops for the period of the adjournment. This seems fair, and should be applied to this petition, particularly since the statute of limitations was exceeded by design and under false pretenses. Just because I granted Ms. Grant an extension rather than forced her to request one from the court should not be reason to penalize me and to reward her manipulative and dishonest behavior.
Your honor, this is not a frivolous petition. It concerns the public safety. Car accidents have occurred at the site of the proposed project main access road, people have already been hurt, and the proposed development will exacerbate this safety hazard. Just as the respondents have manipulated and lied to have my petition thrown out, they manipulated and lied in their approval of the housing development, ignoring the clear data showing this traffic hazard.
Please do not reward Ms. Grant’s shameful behavior.
Thank you for your consideration.
Sincerely,
Robin Segal
Petitioner
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