Judge Ann Marie Taddeo issued a decision in the Article 78 lawsuit of PDDG vs. Kennison Friday, dismissing the petition and abruptly canceling a court date set for Thursday of this week. In her written decision, the judge appeared to accept the contention of Geneseo town attorneys Underberg and Kessler that the documents sought by PDDG had been inadvertently destroyed.
Petitioner Bill Lofquist, who filed the original FOIL requests that are the subject of the case said Tuesday that he is considering an appeal of the decision. “The judge, by her own admission, was not familiar with a lot of the electronic technology that exists today and was unwilling to order the larger search of UK’s records that we sought,” he said.
“We don’t believe these records are really destroyed and irretrievable, and even if they are, the town could have simply asked the developers for copies as we requested the court to order,” Lofquist said.”The fact that the town has refused to do so indicates that the documents may be damaging.”
The crux of the case resolves around communication between UK attorney Jim Coniglio and representatives of Newman Development, particularly with respect to the origin of the Planned Development District (PDD) law passed in June of 2005. Lofquist said Monday that the evidence produced thus far creates a strong case that the developers played a major role in drafting the legislation that allowed its own project to go forward.
“If this decision stands we may never know the full extent of the private relationship between Newman and the town, ” Lofquist said. “However, we already have enough evidence to conclude the Town placed Newman’s interests above the public interest.”
Among that evidence is a sworn affidavit submitted to the court from former Geneseo Planning Board Chairman John Zmich about an admission he heard Jim Coniglio make at a meeting with the developers in early 2005. At the end of his first meeting with representatives of Newman Development, Zmich reports that Coniglio shook Newman attorney Ken Kamlet’s hand and said, “Thanks for writing the PDD law.”
Town Supervisor Wes Kennison has vigorously denied that Newman wrote the PDD law and the Town has never disclosed any such involvement on Newman’s part. In a 2005 e-mail to a constituent who inquired about the matter (obtained from a previous FOIL request), Kennison said that if the town had allowed the developer to write the law, “It would have been an act of extraordinary malfeasance on the part of the town board”
“This is one time when we agree with the Supervisor, ” Lofquist said. “Newman’s role in writing the PDD law is ‘an act of extraordinary malfeasance.’
“Evidence of Newman’s role is the ‘smoking gun’ in this case,” said Lofquist. “Without that law, Newman’s project could not have been considered in the first place. It is now impossible to believe that Town officials can exercise their legal obligation to take a “hard look” at the merits of Newman’s proposal.”
“We believe that Newman’s proposal was conceived and advanced under such tainted circumstances that the proposal, and the law that permits it, must be withdrawn,” Lofquist said. “We call upon Newman to withdraw its PDD application and for the Town to rescind the PDD law.”
Lofquist also pointed out that under recent court decisions and new federal rules, the inability of a defendant to produce missing electronic records can create the legal implication that the contents of the records would have been unfavorable to the defendant’s case. “We certainly believe that the public is entitled to make that presumption.” Lofquist said. “The overwhelming preponderance of the evidence leads to the conclusion that the developers and the town have been in a continuing private alliance to force this project through against the public interest.”
PDDG now has 30 days to file its appeal with the 4th Appellate Division in Rochester. Petitioner Corrin Strong said that he will not formally take part in the appeals process. “Since originally filing the lawsuit, I have become a candidate for Geneseo Town Supervisor,” he said. “At this point, I don’t want politics to detract from what is really just a simple request to have important public records disclosed.”
Strong also pointed out that if the appeal drags into next year, it could put him in the uncomfortable position of being on both sides of the lawsuit if he is elected.
Bill Lofquist has also written an open letter to Newman Development asking for them to search for the documents as part of this week’s column.