New Guide Lists Notable Gardens and Special Events

Westchester County Clarion Statesman, Filed 2/27/02, 3 PM EST by Westchester Office of Tourism:The Westchester County Office of Tourism is offering the new Gardens, The Westchester Way, a four-color, foldout brochure that lists and describes various gardens
throughout Westchester County, New York in the heart of the Hudson River Valley.
Whether interested in visiting gardens to learn about the
growth patterns of a certain species, or enjoy leisurely
strolls through perennials, this brochure offers information to
help plan your visits.

“This new brochure includes gardens that are superlative in terms of size, design, or purpose. We’ve listed butterfly-friendly gardens, gardens that contain rare species of cultivated plants, gardens that do not use any chemicals, even a non-traditional ‘sculpture’ garden,” said Margo Jones, Director of the Westchester County Office of Tourism. “Anyone in search of exceptional gardens should consider visiting Westchester County.”

Fourteen notable public and private gardens that are open for individual and group tours are listed, including those at Kykuit, the Rockefeller Estate in Sleepy Hollow and the Caramoor Center for Music and the Arts in Katonah.

THE ROSE GARDEN AT KYKUIT, one of the many private estate gardens described in Gardens: The Westchester Way brochure.
Photo Provided by Westchester County Office of Tourism

Each description includes points of interest, its history, the species of
trees, plants and flowers.

Additional information includes: months, days, and hours of operation;
admission fees (if any); and the types of tours that are available (guided
or self-guided, group or individual). Directions to each place utilizing
public transportation (trains, buses, and taxis) is also listed. Funds from the D.O.T. Smart Commute program made the printing of this brochure possible.

The brochure provides a county map showing the location of each major garden. A calendar of special events has been included, listing annual garden-related events that take place the same month every year, such as the Azalea Festival at Lasdon Park and Arboretum in Somers, Rose Day at the Lyndhurst estate in Tarrytown, and the annual Opening Day of Wildflower Island at Teatown Reservation in Ossining. The Garden Conservancy’s Open Days Program dates are also listed.

Free copies of the “Gardens, The Westchester Way” brochure are available, from the Westchester County Office of Tourism at 222 Mamaroneck Avenue, Suite 100, White Plains, NY 10605. Phone: (800) 833-9282 or (914) 995-8500; or e-mail:

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Fortunoff, JPI forge ahead.

The Limited Edition by John F. Bailey, Filed 2/27/02 3 PM EST: Progress on two city construction projects was reported by City Hall Tuesday
The new Fortunoff complex approved for Maple Avenue and Old Mamaroneck Road will soon begin demolition. JPI has received its financing for its apartment complex at 300 Mamaroneck Avenue, according to the Mayor’s Office.
Fortunoff’s applied for and was granted a demolition permit last week to raze the Saks Fifth Avenue parking structure on Old Bloomingdale Road as the first phase of construction of their four-story Fortunoff’s complex, according to the Building Department. The Mayor’s office reports construction fencing should be going up within the next week.

In addition, asbestos abatement operations are being excuted in the former Saks Fifth Avenue store with demolition on that structure scheduled to begin from “late to early spring.”

JPI has a “soft closing.”

The Mayor’s office also reported that JPI has reported to them that they had obtained their construction loan for their 300 Mamaroneck Avenue Jefferson apartment complex, in what the Mayor’s office described as a “soft closing.”

JPI is scheduled to begin “rodent removal” procedures within the next two weeks, according to Paul Wood of the Mayor’s office. A matter of a residential porch encroaching the property line had held up construction fencing, Wood said, but that had been resolved by building a fence within a fence, Wood reported.

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City and Board of Education Partner to Upgrade Eastview Fields.

The 2 PM Limited Edition by John F. Bailey, Filed 2/27/02 2:00 PM EST The Mayor’s Office announced Tuesday the city and the White Plains City School District will join forces to resurface the soccer and softball fields at Eastview school with new sod and new track surface oval at a cost of $250,000.
The city will pay $187,500 towards a sodding and track installation, while the School District will contribute $62,500, according to the Mayor’s Office. A WPNCR correspondent attending the Common Council work session last week, reports an artificial surface has not been ruled out by Department of Public Works Commissioner Joseph Nicoletti.

EASTVIEW’S HEAVILY TRAFFICKED FIELDS TO GET “GRASSLIFT”: The City and the City School District are combining to resod the soccer field, foreground, and the softball field beyond at Eastview School, (shown at the right), the most-used fields in the city. Fields will be closed two years and soccer games moved to a new location when the defunct Department of Public Works garage (long, low white building to the left) is razed to begin construction of the Westchester One/Stop N Shop Parking Facility.

Photo by WPCNR

Nicoletti Getting the Turf Story

Our correspondent says Commissioner Nicoletti reported that the cost of installing an artificial surface was five times the cost of a traditional resodding. The Public Works Commissioner added that an artificial surface requires more sophisticated below-the-surface drainage construction to avoid flooding on the surface which inflates the artificial turf cost substantially. The Commissioner said he was getting bids on artificial surfacing as opposed to installing a new all-grass surface.

Softball and Soccer fields Planned

Plans now call for a softball field and a youth soccer field to be installed on the two sites. Artificial turf has long been touted as a solution to Eastview field maintenance because the fields are used extensively for adult soccer play resulting in the ragged grass coverage and virtually bare dirt fields which currently exist.

Fields to close for two years.

The site work planned by Nicoletti will close both those fields for two years, according to Deputy Recreation Commissioner Arne Abramowitz, who spoke to WPCNR on the matter Monday. Nicoletti said last week that the site work on the Eastview fields has to be coordinated with the demolition of the former Department of Public Works garage on the knoll overlooking the fields. The DPW garage will be demolished shortly to make way for the construction of the Westchester One/Stop N Shop Parking Facility. That demolotion will begin when the Department of Public Works move has been completed.

Abramowitz said the Department of Recreation and Parks is examining alternative fields for use this summer to stage the adult soccer league games that have relied on the Eastview fields in previous years.

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FLASH! GERRARD: Med Research Permitted; No Eminent Domain

High Noon News, By John F. Bailey, Filed 2/26/02, 1:00 PM EST:The Mayor’s Office, at request of the Common Council has released the 10-page legal opinion of Arnold & Porter, the Council’s environmental law firm, on the effect of zoning questions involving the New York Presbyterian Hospital proposal to build a biomedical/cancer research facility on its central White Plains campus off Bryant Avenue. The ramifications are significant.
Michael Gerrard, of Arnold & Porter, in his advisory, (written with Nelson D. Johnson), significantly writes that “medical research” is a permitted use as part of the Special Permit the hospital now enjoys.

He also advised the council, that under a New York State Legislature law, the city has no right of eminent domain on the hospital property, contrary to legal opinons of opponents of the proposal, who apparently are unaware of this law.

In further analysis, Gerrard’s opinion indicates that the council could refuse a request for a change in zoning, with more legal certainty that if they were to deny a Special Permit use.

The opinion is written by a lawyer (Gerrard) who drafted the New York State SEQRA standards under which the hospital proposal is being reviewed, and is in direct contrast to legal advice offered to the council by opponents of the proposal.

In a third finding in Mr. Gerrard’s memo, he and Mr. Johnson write that the city, indeed, does have the right to rezone the property.

WPCNR will provide more details.

The document in its entirety, may be reviewed on the City of White Plains Website. To reach the city website, click on “White Plains Links,” go to Government and click on the City of White Plains Website, and go to the “New York Hospital–New” headline.

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Corcoran Dropped From Recreation Advisory Board

The Big Extra Filed by John F. Bailey, 2/25/02, 12:15 PM, Updated 2/26/02 8:30 AM: Candyce Corcoran the city’s “designated volunteer” who attended virtually every major Recreation Advisory Committee meeting and function, has been unceremoniously dropped from the City Recreation Advisory Board, without explanation, while all other Board members were unanimously reappointed.
Ms. Corcoran’s two-year term has expired, and the Common Council did not vote to reappoint her to the Board. Michelle Schoenfeld, Clerk to the Board of Education, has been appointed to fill her vacancy, according to Benjamin Boykin II, Common Council President, Friday.

Council Does Not Give Her a Vote of Confidence.

“I could not find enough Democratic votes on the Council to reappoint her,” Councilman Boykin told WPCNR Friday. Mr. Boykin would not elaborate on why the council majority felt Ms. Corcoran’s services were no longer desired on the committee.

All other members of the Recreation Advisory Board had their terms extended. They include: Steven Brown, Bill Campbell, Christine Eifler, Larry Geiger, Marie Gomez, Eli Schoenberger, Chuck Stogel,and Richard Sanchez.

Asked what Ms. Schoenfeld brings to the Recreation Advisrory Board, Mr. Boykin said she was appointed to “provide more liaison with the School Board.” Mr. Boykin declined to say who nominated Ms. Schoenfeld to serve on the Board, saying it would become clear at the Common Council meeting next Monday. It should be noted that Mr. Geiger is also a member of the Board of Education.

An Extraordinary Procedure

Bill Campbell, a member of the Recreation Advisory Board, said it was unheard-of for Recreation Board members, (many of whom have served for years), to be abruptly dropped from the roster without first being told why, and given an opportunity to participate appropriately.

“Generally, they tell you what the problem is, either attendance or not producing anything for the committee,” Campbell said Monday. “They will ask you if you want to continue. They explain the problem to you. They did it with me.”

Campbell said, “She (Corcoran) was a very productive member of the Advisory Board. They always tell you precisely what the problem is. I don’t know what they told Candy. They should have told her. I don’t see why she was not reappointed.”

Corcoran in shock.

“I am in disbelief,” Corcoran told WPCNR. “I’m hurt. Everyone knows they can call me up and whenever a volunteer was needed, I was there. I don’t understand this.”

Corcoran has been perhaps the most visible recreation supporter in the city. She has organized the Little League Parade for three years, and represented the League on the Recreation Advisory Board. In her position on the board, she organized White Plains Future Stars Track organization, and most recently, was the resident expert for the Advisory Board on the contents of the Recreation Master Plan for the city. Susan Habel, Commissioner of Planning, personally congratulated Ms. Corcoran on her knowledge of the Recreation Master Plan.

Privately, prominent members of the committee who are Democrats and members of the Democratic Party and certain members of the Delfino administration, speaking on condition of anonymity, are shocked at her abrupt departure, saying it smacks of partisan politics at its worst.

Corcoran was the Republican candidate for County Legislature in District 5, who ran unsuccessfully last November.

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Planning Board Roundup: Gentrification of Post Road Gateway;

10 O’Clock All News Final Filed by John Bailey 2/20/02, Updated 9:33 AM The Planning Board met Tuesday evening, responding favorably to a 7-unit townhouse complex planned for the South Post Road Gateway, while sending XM Radio back to refigure their radiation levels. A new church wants to rent at 75 South Broadway, creating a zoning conundrum.
The Planning Board and Prospect Park neighbors got a detailed view of DeKalb Development Corporation’s 7-unit townhouse complex they hope to build on West Post Road across from the Fisher Hill neighborhood between Merritt Avenue and New York Avenue, just across the Scarsdale-White Plains city line.

Eight residents expressed concerns about the proposed tree plantings and fencing proposed for the development, but were not outright opposed to the project. Developer Frank Cantatore the mastermind behind Clayton Park, an apartment community now going up in the Eastview neighborhood, expressed willingness to meet privately with the neighbors along Winslow Road and New York Avenues to finetune selection of green buffering and fencing styles. The objective is to ease the visual impact of fencing on neighboring homes.

“GATEWAY” TOWNHOUSE TOUTED: The proposed façade of a 7-unit, residential townhouse complex as it would appear on Route 22, (West Post Road). Six Units front on Post Road, at the crest of a 25 foot slope above a stone wall. The Units would contain 7-two bedroom apartments and 7 one-bedroom units. Entry would be from Post Road to the far right of the complex, with parking in back of the six units. The seventh unit is behind the northern most unit on the East Side of Route 22.
Photo by WPCNR

The Planning Board was pleased that plans for the complex had made the storage space on the top floors to be unusable as bedrooms, (as suggested by the Board). Access to the eaves is only by a pull-down ladder in the third floor halls.

Planning Commissioner Susan Habel expressed concern about the lighting of the parking areas to lessen impact on the residential homes along New York Avenue and Winslow Road, and advocated the installation of open slat fencing.

The neighbors and Planning Board members expressed interest in maintaining the stone wall façade on Route 22 (West Post Road), preferring the design plan that eliminates the on-street garages now existing on the site.

HOW TO BUILD IN A NEIGHBORHOOD WITHOUT RUFFLING THE NEIGHBORS: Frank Cantatore explains parking lot buffering amenities to the Planning Board, making clear he wants to meet with neighbors to tailor his plans and seek compromises. The overhead site plan, partially visible, shows the location of the seventh building of the complex, behind the northernmost unit on Route 22, with the outlines of the six Route 22-fronting townhouses at the bottom of the plan.
Photo by WPCNR

Cantatore told the audience the buildings would take nine months to construct and would be built from the Post Road side in, with no construction entry from New York Avenue. The Public Hearing was adjourned until March 19.

XM Satellite Radio Does Not Satisfy Planning Board on Radiation Levels

XM Satellite Radio appeared for the second time seeking permission to place a “whip antenna and satellite dish” on the roof of an apartment building at 30 Lake Street.

Representatives for XM Radio admitted their radiation levels exceeded FCC-permitted radiation levels by 508% for the public at the rooftop level, and 116% for occupational exposure at rooftop level. This generated concern on Planning Board Chairperson Mary Cavallero’s part.

Ms. Cavallero noted to WPCNR, “I’m not clear on this but it is something like the FCC apparently allows roughly 5 times the exposure to radiation for workers who would somehow be trained to deal with the increased raidation. The radiation levels rpoeted at a distance of 16 feet from the site are 1.8% of the maximum permitted exposure for the pubic and .4% for occupational levels. You notice how drastically the levels decrease as the distance increases (inversely proporational to the square of the distance.”

Cavallero said, “The Planning Board has never approved any cellular antennas or antennas of any kind that exceeded FCC standards. We’re not convinced that just because you say your output is safe. What is the effect for persons living there 8 hours a day?”

Robert Stackpole asked what would be the effect of the stronger radiation at the rooftop level on the persons living on the top floor of the apartment building, just under the antenna.

Locked Roof Desired

XM Radio also was requesting that the access to the rooftop be locked, police and fire having access to keys, to prevent the general public from approaching the antenna apparatus. This request, raised Planning Board eyebrows for public safety reasons.

Cavallero Finds More Math Mistakes

Radiation statistics were queried by mathematics teacher Cavallero, and XM’s consulting radiation engineer said he would check his figures and return March 19.

XM Radio’s representative, beating a diplomatic retreat, said he would return with a new configuration that would place the antenna ten feet higher to minimize the radiation effects.

Satellite radio, as provided by XM Radio, provides over 100 channels of different types of music and news which may be received by listeners in their cars or homes, using a $300 console and antenna to receive the programming. Their website can be accessed by going to WPCNR’s White Plains Links on the upper left of your screen and going to “Media.”

Cavallero, Habel call for minor site amendment process for second generation of antenna installations.

After scheduling public hearings for AT&T Wireless antennas at 155 Ferris Avenue and 101 Old Mamaroneck Road, Cavallero called for the Planning Department to huddle with the Building Department to discuss a process to streamline requests to install improvements to existing antenna locations in the city.

“As more improvements continue to be made, companies are going to swamp our agendas with these requests for improvements to existing facilities,” Cavallero predicted.

Antenna-ists Chided for Unclear Presentation

She scolded antenna presenters in general for presenting confusing, unclear plans with incomprehensible comparisons. She requested in the future that antenna presenters note in clear terms what the differences are between previous sites and new proposals for those existing sites.

Cavallero wants new requests for alterations to existing antenna sites in the city to present clear comparisons of radiation differentials in order that the city can recalculate the overall impact of radiation of new proposals.

Commissioner Considers Department Antenna Pow-Pow

Susan Habel, Commissioner of Planning, noted this was a good idea and it was agreed that the Planning Department would undertake to examine how such second generation improvements at existing antenna sites could be approved with a minor site plan amendment procedure to streamline such processes.

Can Churches and Cabarets Exist Side-by-Side?

This was the question raised by Robert Stackpole at the appearance by the Westchester Chapel Church of the Nazarene, seeking to rent 4,500 square feet of an office building, 75 South Broadway, (which is adjacent to ANL Sports, and across the street from McDonald’s and Border’s Books in the Westchester Plaza Mall), for a meeting place and administrative offices.

Susan Habel, Commissioner of Planning, also noted that the zoning ordinance prohibits a cabaret operating within 200 feet of a church. The 75 South Broadway location is right next door to The Thirsty Turtle pub. The Turtle had been in the news previously over a dispute with the Sloan Bar Building over use of the Sloan Bar parking lot.

Just Small Friendly Gatherings.

Reverend James Warren of the Church of the Nazarene explained that at present the church only expected a maximum of 50 persons about once a quarter.

He advised no weddings or funerals would be held at 75 South Broadway. He noted that the church would hold public gatherings for no more than 20 persons some three to four times a week in the evenings for classes and a theater group, and of course on Sundays. He said little more than half of the floor space would be used for administrative offices.

Habel Frowns on Parking Differential

Commissioner Habel cautioned the Planning Board that the lack of parking in the area was of major concern with the church needing to find 26 more parking spaces to comply with the parking ordinance requiring 45 spaces.

Troubled by Zoning Violation

Habel also said that approval of the church occupation of the space at 75 South Broadway, would throw the cabarets along East Post Road into nonconformity, creating a future problem if the cabaret owners were to sell their properties. She said that adult entertainment establishments (meaning cabarets and nightclubs) perhaps were not appropriate neighbors for a church.

Commissioner Habel said “an accommodation needed to be reached, if the church is on the record that it is moving into a cabaret district and has no problem with it.”

Reverend Warren assured the Planning Board, that he had “no problem whatever with cabarets within 50 feet of where we are. We offer a different kind of entertainment more family-oriented than cabarets.”

Nevertheless, Habel insisted that the issue of creating a nonconformity be addressed by the Planning Board with the Common Council.

New Commissioner Sets New No-Nonsense Tone

The legal representative for the Church of the Nazarene pointed out that the Planning Board was being difficult, implying it was trying to keep the church out of White Plains.

Commissioner Habel said she found that an “insulting” suggestion, and that the Planning Board had a long history of being very accommodating to churches of all faiths. The representative apologized.

The Planning Board was going to consider the issue of conformity of zoning and compose a letter next Tuesday at a special meeting.

A fast-growing denomination

The Church of the Nazarene is one of the fastest growing congregations in the country, gaining 100,000 members from 1998 to 1999. Their website can be accessed by going to White Plains Links and clicking on “Houses of Worship in the News.”

In other Planning Board Action…

The Vanderhoef Subdivision in Woodcrest Heights was moved to March 19, due to a procedural error on the part of the developer. He needs to submit a slope analysis and a wetlands report, in addition.

The 484 Rosedale Site Plan, and Metro Auto Tech at 7 Intervale Street will be taken up in a special meeting, February 26 at 7:30 PM.

The Planning Board recommended the Common Council approve Tri-Kelly Inc. (Kelly’s Tavern) for a one year renewal of their cabaret special permit, in order for the city to access the effects on the East Post Road area of their outdoor dining area.
The Ron-Rose Group present new site plan elevation drawings for a 16-unit townhouse apartment complex on 108 North Kensico Avenue. The Planning Board suggested a faux front door be designed to give the appearance the building is facing the street. The public hearing was held open another month.

AT&T Wireless request for a new antenna site at the Westchester Mall was scheduled for a hearing March 19. It is a new site that AT&T claims to need to handle capacity.

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Grace Church Leaders on Impact of Faith-Based Initiative Legislation

Morning Edition: Religion Beat by Teresa Kramarz, Filed 2/20/02: While Congress debated earlier this month the so-called “faith-based initiative,” a bill which would fund religious groups that provide social services to the needy, a White Plains church with 23 years of service to the urban poor had mixed reactions on the initiative’s impact.
Grace Church Community Center of White Plains is the largest non-profit social service organization in Westchester County. Reverend Joseph Gilmore, pastor of South Presbyterian Church in Dobbs Ferry characterizes the center as “the hot spot for any significant justice work in the county.”

Centerpiece of Support

The soup kitchen downtown serves 25,000 meals a year; the 45-bed homeless shelter for men and 18-bed shelter for women and children operate at full capacity, the daycare center runs year round and transitional housing services for discriminated AIDS patients continue to expand, said the Executive Director, Joseph D’Ambrosio. The center also provides home health care services to the elderly and socialization programs for the mentally disabled.

Mr. D’Ambrosio explains that to do this they rely on a mix of individual and corporate funding, and three county government contracts. But the popular soup kitchen program and daycare are run at a loss, while the other programs operate on thin financial margins. “We are always in crisis,” he said.

A Candidate for Federal Aid?

This community center is exactly the kind of effort that the faith-based initiative would support, according to the legislative bill. But Mr. D’Ambrosio was skeptical about seeing any impact from the initiative in his center: “I am afraid that the politics of it will keep the money away from us, the local churches.”

“Large churches and charities with political connections will get the money before we do, ” he said.

Services Needed Whether There is Funding or Not

Maryfaith Fortunate, director of the Daycare Program, said she liked hearing about Bush’s initiative because so many of the services to the poor in communities like White Plains come from churches:

“When all is said and done, when the Department of Social Services says they are coming through or they are canceling funding, the church is still left with a whole bunch of people who need care,” she said.

However, she warned that she would only support this initiative if it did not become an excuse to undercut any existing federal funding.

Hope for therpeutic programs, too.

Theresa Dicosmo, deputy director of the men’s shelter, Open Arms, hoped the initiative would help programs like hers that deal with individuals suffering from substance abuse and mental illness:

“President Bush said he wants to help people who suffer from addictions (through this initiative). That jumped out at me,” she said, “They are illnesses that people don’t like to talk about.”

Shelved In 2001.

When the White House first introduced the initiative last year, it created widespread controversy over the impact that it would have on the separation of church and state and on potential hiring discrimination by religious organizations that would look to employ people of their own faith. The proposal did not make it out of Congress.

Then Sept. 11 changed all the priorities and the government concentrated on the immediate security threats posed by the World Trade Center attacks.

In play once more.

Last week, Congress reached agreement with the White House on the bill that would open federal funding to religious charities.

Mr. D’Ambrosio and program staff did not feel that federal funding of religious organizations was controversial.

“We should have the same systems of checks and balances as anyone else receiving federal grants would have,” said Ms. Dicosmo. “There is no imposition on anyone’s faith here, nor do we do not hire anyone on the basis of religious background.”

Grace serves all.

The men’s shelter is not only run by experienced professionals but it is also staffed by men who have graduated from the program and come from all walks of life, some are religious and some are not, explained Ms. Dicosmo.

Her program has a particularly diverse history since it was co-founded with “SHORE”, a group of 40 local churches and synagogues that partner with businesses and civic groups to combat homelessness.

“Our center is about a mission, rather than a religion,” said Ms. Fortunate. “It is not about how to become an Episcopalian. In fact, we work with volunteers from many different area churches and synagogues.”

Under the banner An Oasis for Hope for the Needy,Grace Church Community Center’s literature points out that it has distinguished itself by providing direct comprehensive services and support under one agency roof to individuals and families with multiple problems for over 20 years.

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Albany Debriefing:“D-Team:” No Jurisdiction? Then Court Has It.

Ten O’Clock All News Final, Filed 2/18/02, 9:45 PM EST: Larry Delgado’s legal team was encouraged by several indications that the Court of Appeals was taking their argument for vindication of Judge Nicolai’s ruling for a remedy, seriously at Court of Appeals Hall in Albany, Thursday.

Jeffrey Binder, Delgado attorney, gave WPCNR his analysis of the historic arguments that unfolded Thursday afternoon. A ruling could come from the Court of Appeals Tuesday afternoon.

JEFFREY BINDER, DELGADO DUELLIST, shown at right, with Larry Delgado, center, and John Ciampoli, left, in a picture of the trio taken last November, asked if he was feeling good about the Court of Appeals reaction to their case Thursday, said, “We are. We’re pleased that the court decided to focus not so much on the procedural flaws as were pointed by Adam, but on the real substantive election law issues, whether the court has the power to remedy a wrong that has been done in an election law context rather than just wait and ask the attorney general.”

Photo by WPCNR

The “quo warranto” Quandry Queried

Asked about the quo warranto procedure that was available to the Delgado team from the outset, that is at the center of the Adam Bradley appeal, Binder said that was true it was available, however, “You don’t even get the right to (go to quo warranto). You have to ask the attorney general. All you get under the present law is the opportunity to get into position to get a remedy.”

We asked why he felt the Appellate Division , Second Department, of the Supreme Court had granted the Felice remedy handed down in 1992,. Binder said, “they feel the courts should have the final word (on jurisdiction). They feel that the present state of the election law, (remember the court is a coequal branch with the legislature, they can make law just as binding as the state legislature).

” I think Mr. Bradley lost sight of the law-making capacity of the Court of Appeals.”

Appellate Division a Trail Blazer

Binder characterized the Appellate Division, Second Department, as “a progressive department which recognizes that the court needs to fashion remedies in circumstances where you have problems with a general election. Why is it not important? Why shouldn’t the court have the final say?”

Observes several judges “very concerned.”

On Friday afternoon, Binder gave WPCNR his obeservations of how the arguments went Thursday:

“Yesterday several of the justices were very concerned that the final say in these matters is had potentially by the attorney general who is a political person. A little too much discretion is placed in his very hands.”

“Judge Kaye, actually felt that the court ought to be an arbiter in these situations. Judge Levine asked, ‘what if the attorney general doesn’t go for a quo warranto, then would there be an access to justice, would there be a common law remedy. Judge Levine was concerned about ‘what if the AG doesn’t go?”

Judge Graffeo Expresses Concern, Too.

Checking his transcript, Binder noted, “Judge Graffeo, the most junior justice, questioned Mr. Bradley whether it was a mandatory obligation of the attorney general to hear these procedings. Bradley had to answer ‘no.’ There’s a screening method, and it’s discretionary.”

Court Weighs Speed of Court vs. Speed of the Attorney General.

“There was a great concern about whether the courts have the capacity to act swiftly in resolving these things, or whether the swiftness lies with the attorney general, or whether it’s swifter to get the courts involved,” Binder reports. “Our argument was, look what happened in our case, it was very swift. Judge Nicolai heard the case very quickly. We had an evidentiary proceeding very quickly to determine what the facts were, and actually had an election scheduled before the end of the year.”

The Binder “take” on Court Position:

Binder, said, “I really don’t have the answer to that, other than that the court generally was concerned that if the court starts to get involved in these matters, whether they have the capacity to provide both sides with evidentiary hearings in a timely fashion.

“The court was less concerned with the outcome in our case, rather than what’s going to happen in the future. Which gave me great comfort. They’re looking towards the future, as if they had made up their mind on the present.”

On the relevance of old cases.

Binder said that, “just because a case is old, doesn’t necessarily mean it’s bad law. Case law ebbs and flows. It changes over the course. That’s why we have the common law doctrine. It’s an evolutionary process.

“Modern times, the growth of elections, the lack, inability of machines to keep pace with the numbers of elections, the kinds of elections, the complexity of elections are causing more and more problems and the law has to adjust.”

Bradley’s Position Towards Court’s Law-Making Abilities “Dangerous.”

WPCNR asked how Binder reconciled Mr. Bradley’s position that the court does not have the right to fashion a remedy. Binder said he felt this was an “aggressive position,” by Mr. Hockley’s counsel:

“You know, he said that to the court, which is a very, very aggressive thing to say to the Court of Appeals that you have no power in this arena, because the legislature hasn’t spoken. Well, excuse me, but the court is a co-equal branch of government to the legislature, and can step in, and should step in when the legislature is silent, or even when the legislature is wrong.

“Maybe up until now we never had a four square set of facts that crystalized the issue so easily and clearly for the court to apply them in this way. It’s very dangerous to say to a law-making body, which the Court of Appeals is, that you have no power.”

Binder said the judges looked “very very disgusted at that remark. A few of the justices sort of scrinched their faces.”

The Issue of the Legislative Statute Disputed.

Binder said they took issue with the narrowest interpretation of the statute, which Bradley is reading, forbids court jurisdiction in general elections:
“The court was very concerned,” Binder said, ” if they step in now, and say the Supreme Court does have jurisdiction with respect to general election matters, which we believe they have had all along, and the case law that developed that said they didn’t was wrong, because the Supreme Court is a court of general jurisdiction.

“So unless you specifically carve out jurisdiction from the Supreme Court, it has it anyway. The fact that the statute was silent on it doesn’t necessarily mean that they have no jurisdiction.

“The fact that the statute specifically conferred jurisdiction to the court with respect to primaries goes to the fact that primaries are essentially private party matters. It’s kind of like private corporate matters.”

Binder said the statute was created to address situations where in primaries, parties acted to prevent certain Americans from voting. The statute specifically wanted to address those types of situations.

“That doesn’t mean that because the statute is silent on it (general election matters), you reason they have no power. That’s why the court of appeals took the case. You now have a body of law developed in the Second Department and a body of law that has developed all around the rest of the state that are in conflict, and the Court of Appeals has to opine and straighten this out for everybody.”

Binder Expects Tuesday Decision.

Binder said he expected a swift decison because of the court concern about how swift justice could occur if the courts were to involve themselves in election matters,

“They were discussing why it took the Appellate Division four weeks to make a decision. They were sort of interested in our opinion as to why it took four weeks.”

Defining moment at the start of the hearing.

Binder said there was one defining moment at the beginning. He said that Mr. Bradley started with his argument about the procedural matters, and after three minutes, “Chief Justice Judith Kaye, told him to ‘hold it,’ and said “could we please get to the underlying relief.’ I’m reading those tea leaves. Remember Justice Kaye’s mantra has been ‘access to justice.’ She is very concerned about the threshold when the courts become involved.”

Binder salutes Bradley’s determination.

In his final comments on the three-month process that reached the height of drama Thursday, Binder complimented his adversary, Adam Bradley.

“Let me just say to Adam’s credit, he did a very good job. He did a thorough job in breaching the issues he thought were relevant to the court. I read his brief. It’s nicely put together. I have to tell you, I admire his doggedness. He’s a solo guy to stand alone and stand against the tide, on matters of principle, and sometimes those guys come out on top. I admire him, I really do. I admire his guts. I think he’s a good writer. From a lawyer’s point of view, I admire his doggedness.”

If the justices do not issue a ruling Tuesday, it is next anticipated by a clerk of the court that the decision will be handed down March 12 or 14.

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Albany Debriefing: Bradley: Constitution Issue. Dead Judge Behind Issue.

Drivetime Edition, Filed 2/18/02, 4 PM EST: Glen Hockley’s attorney, Adam Bradley focused on the key constitutional question of whether the court has the right to call for a new election in the Hockley-Delgado disputed election for WPCNR Friday. Mr. Bradley spoke to WPCNR at length on his argument before the Court of Appeals Friday. A decision might come Tuesday from the Court of Appeals, or as late as March 12.

ADAM BRADLEY CONFIDENT, after arguing before the state’s highest court Friday afternoon. He told us, “I thought it went well, these were very bright jurists who I believe will set the rule of law in this state and that’s I think, a very important thing. The fact that they took the case, recognized that there were some very serious issues both procedurally and as to the rule of law regarding elections…..very cognizant of procedural problems, and also very cognizant of the point I had raised.”
Photo by WPCNR

End of the Legal Line, Maybe.

Mr. Bradley appealed Judge Nicolai’s ruling (made after a machine was found to be jammed in District 18),for a new election in District 18 between all six council candidates, to the Appellate Division, Second Department of the New York Supreme Court. When the Appellate Court upheld the Nicolai election “remedy,” only expanding it citywide, he appealed their decision, to Court of Appeals.

The case was heard in Albany Thursday afternoon. A decision could come as early as Tuesday, and if not Tuesday, it is expected not to come until March 12 or 14, according to Laurene Tracy, of the Court of Appeals.

Bradley spoke at length with WPCNR Friday about what he considered the most important issue of the case:

“It had nothing for me waiving the right to trial or not. It had to do with the Nicolai trial court conversion to a plenary action, depriving the right to a jury trial. Because Article 16 (of the Election Law) powers don’t give you a right to a jury trial, but also does not give the court the right to adjudicate the election. Which is exactly what this case was plead under. It never mentioned plenary relief at all, it was a straight, “garden variety” petition, for what is really a “garden variety” election law case. We have broken machine cases, probably thousands of them.”

WPCNR asked if this went to the right to inspect the machines. Bradley said, it was beyond that:

Courts Right to Order an Election is the Big Enchilada.

“No, no, no, because inspection is different. This issue is a much larger issue. It goes to what are the rights of courts to do certain things that weren’t provided by statute. It goes to whether the legislature should make a change in the law.

The irony of the whole thing is, the (New York) legislature purposely gave the courts wider opportunities to call new elections in primaries than in a general election. In primaries you don’t have a “quo warranto” right. There’s no right to public office after primaries. They purposely gave rights in primaries that they didn’t give in general elections. What this unheralded Felice Doctrine (basis of the Appellate Division ruling), did was it enlarged courts’ remedies in general elections to be even larger than what the legislature said (we want you to have these rights in primaries) than in general elections.”

WPCNR notes that the Felice case (involving an election in Suffolk County where a voting machine jammed, where a citywide election was called for) was the case Judge Francis Nicolai used to convert the case to a plenary judgment.

The vagaries of quo warranto

Quo warranto was, “originally a writ ordering a person to show by what right he exercises an office, franchise, or privilege. In New York state, it is a legal proceeding undertaken to recover an office from the person in possession, initiated upon an information.”

Quo warranto is initiated by an officer-seeker directly with the attorney general, who has the sole right to open procedings. Larry Delgado’s attorneys, John Ciampoli and Jeffrey Binder, were poised to file a quowarranto action had Glen Hockley been appointed to the Council, or if the Common Council had appointed an interim councilperson.

A quo warranto may still be filed by the Delgado team, Binder said Friday, should the Court of Appeals rule against Mr. Delgado, awarding Mr. Hockley the Council seat.

A thorny issue, not reducible to soundbites

Bradley said, he was uncomfortable going into constitutional issues: “One of the hard parts for me, these are not issues that are easily condensed into sound bites. It’s an injustice to try and do that, because it can’t come out right. I wrote a 70-page brief for the Court of Appeals.”

A good argument in Albany.

Asked how he felt his argument had carried before the seven justices Friday. Bradley said, “It was great. I enjoy arguing before the court of appeals. I enjoyed arguing before the Appellate Division. It’s always a challenge to appear before learned jurists, and certainly those that are on the Court of Appeals are some of the best.”

Expresses optimism that the judges were tuned to his brief

“My interpretation is they are very clear on all the procedural errors that occured here and I think it puts them in a dificult position,” Bradley told WPCNR. “I think the more interesting legal issue is the other one that I raised. I think they were intrigued as am I, by the lengthy analysis that was done.”

“Judging from their comments, they recognized the flaws that Felice created. I also think they are troubled by the fact that the legislature didn’t grant them any equitable rights to do these things. It’s a funny issue. It’s almost a separation of powers issue in some strange way because I think that they recognize they are limited but really want to be able to find a way to do things.

I also think they recognize very clearly my point on this, that if New York was Florida, under the Felice doctrine, we would be having a jury trial for seven months, and we wouldn’t know who the president is.

The problem with the Tarrytown Case.

Bradley’s voice rose passionately as he once again attacked the Felice decision that allowed the new election in Tarrytown:

“The Felice doctrine violates the constitution. Courts have no inherent power. They don’t have any legislative authortity for remedy, and they have no inherent power. Therefore, They have no equitable jurisdiction. As a result, the only jurisdiction they could obtain would be through the legislature who has not given it to them. The legislature, if they were to give it to them, would have to give it to them in a way that would not violate the right to jury trial. (quo warranto).”

Confident the Court of Appeals will see it his way.

Mellowing, Mr. Bradley expressed optimism, “Legally speaking, I don’t think this is a close issue. The procedural issues require dismissal under Frye & Gershel and the lengthy history as I documented, very clearly to the court indicates that there’s no inherent power in the court to order these remedies. That they are restricted, both by both the law of prior precidents, our statutes, and as a result, I would think they would have to 1, dismiss the petition for want of jurisdiction, and 2, eliminate any right to the remedy for lack of subject matter jurisdiction.”

Compares the case to the Florida Presidential situation.

Bradley pointed out that Florida courts weren’t given that power to call a new election,

” Even the Florida supreme court never had the power to call a new election. All the Flordia court could do, which is all ny court could do, would be to look at the ballots the punchcard ballots and determine the legality of the voting of that ballot. They could not call a new election.

The matter of inspection clarified by Mr. Bradley.

Bradley elaborated on what inspection meant: “New York courts are not empowered to call new elections.They are empowered to rule on the legal rulings on paper ballots and correct obvious tabulation errors. There’s no tablulation errors here. The tabulation is correct. The Court is not empowered to call new elections. There are probably 500 to 1000 cases just like this one where the courts acknowledged they did not have this power, despite the fact that they’d like to do it. They can’t. But guess what they said, but you do have a remedy, your remedy is quo warranto.”

Death of a judge in 1937, basis for the Felice decision.

The Felice decision that the Appellate Division, Second Department made in 1992, was based on a case that, in turn had used a case from 1937, to declare a plenary action. Bradley gave us the bizarre details of that case that is the basis of the Nicolai ruling in December.

Bradley unfolded the drama for us:

“The time is 1936. A Democratic candidate for surrogate, Mr. Shields is up by 250 votes in heavily Republican Westchester County. However, that year ’36, was a Roosevelt landslide, and unfortunately for Shields, after paper ballots are counted, Mr. Slater his opponent, takes the lead and wins. Unfortunately for Mr. Shields it looks like he’s lost the election. He waits until Slater takes office, speaks to the attorney general and the AG is about to start the quo warranto process, protesting the paper ballot count.

“But, what should happen at the end of February, 1937? Mr. Slater dies in office, six weeks into his term.

“Now we have a vacancy for surrogate. But guess who appoints the vacancy? Governor Lehman, a Democrat. Governor Lehamn appoints Shields. But he’s not happy.

“Shields had started the quo warranto process. But, the Governor has appointed him. He’s only allowed to carry the term until the next election, which is November, 1937, when he has to run again in a heavily Republican county without the benefit of Franklin Roosevelt on the ballot. If he had won the quo warranto process he would have had a full term until 1944.

Bradley finished the story: “He speaks to the attorney general. The attorney general says, you have no remedy anymore. You’re in office, we can’t do a “quo warranto” proceding to oust yourself. So what did he do? He filed a declaratory action. What did the court do?

The court said, in this unusual circumstance, when there is an absolute unavailability of “quo warranto,” we are going to allow the plenary action. Because of that Shields was able to waive a right to a jury trial, because he had a no adversary. Slater wasn’t going to contest it. That was the fact pattern of the one case where declaratory judgment was used that the Corrigan case was referring to that the Felice doctrine used to suggest it could do what it did.”

Looking at the 1992 Second Department decision.

“The Tarrytown case used Felice in the second department,” Bradley said. “The first, third and fourth department (of the New York Supreme Court), never have wavered from their (legislature’s) position. The second department in 1992, created a doctrine that nobody else is using, and it was not used prior to that. They (the second department), cited a case called the Corrigan case, which was based on a case in the 30s, Shields v. Flynn, which is totally different.

Bradley patiently drove home his point to us that he made to the Court of Appeals:

“The point of Shields vs. Flynn was you can use a declaratory judgment action if a “quo warranto” proceding is absolutely unavailable or impossible, not SOON to be available. (As it is for Mr. Delgado) If this case is dismissed, “quo warranto” would be available for 6 weeks. Shields vs. Flynn is a very unique set of facts. Corrigan said that you may have a right in “quo warranto” or a possible declaratory judgment action, if you can’t have quo warranto. The question is…is it now an available remedy in situations where quo warranto will be available.”

“If that is the case, ” Bradley added, “it goes against the legislative intent when they drafted the election law. The legislature said you have this right for primaries, and you don’t have it for general elections. It’s very specific.”

“Former Chief Judge Cook,” Bradley said, “made very clear in his own decision when he was a trial judge, that the silence of the legislature on our rights in general elections and their explicit granting of that right in primaries makes clear what our limitations are.”

The Court of Appeals will be making the call, perhaps as early as Tuesday.

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Albany Arguments: Court of Appeals Mixes Px for Remedy in Election Law

Midnight Special Edition, Filed 2/15/02, 12:00 AM EST: Observers of the Court of Appeals arguments on the Delgado-Hockley matter Thursday checking in with WPCNR indicate the Court is taking the dilemma of the Delgado Hockley jammed voting machine in District 18 and mulling how Election Law should provide for remedies to such situations in the future.
Our correspondent at the Court of Appeals Hall in Albany Thursday noted that the panel of seven Court of Appeals Judges were keenly interested in several constitutional issues raised by the Larry Delgado-Glen Hockley jammed voting machine in District 18, which has kept White Plains at a 6-person Common Council for six weeks.

Three justices queried attorneys Adam Bradley and John Ciampoli for approximately one hour. Their focus was on the issue of whether present Election Law even permits a remedy for future cases of this kind where a wrong has been identified.

The Judges, our observer reports spent 25 minutes of time with each attorney. A veteran of these procedings, our correspondent said this was an unusual amount of time for the judges to spend on arguments, and perceived this as evidence of their concern.

The question of procedure (the Delgado failure to purchase a second index number raised in the Hockley appeal), did not raise court concern as much as the conumdrum of a remedy and whether it was possible under current Election Law.

A decision is expected to be reached in a matter of days over the weekend or early next week. From here, one of the justices will report on the case to the rest of the judges, and they will analyze his or her decision.

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