Not too long ago I wrote a post about how Guilderland town employee Donald Csaposs has been obsessed with me in cyberspace. Apparently the stalking continues.
Here's the story: A friend of mine from elementary school has been posting our class pictures on Facebook. Several of us have been posting comments about the pictures, such as trying to identify some of the classmates. This is the kind of harmless and silly stuff people do on Facebook.
However, I just noticed something related to these pictures. The image below shows comments posted by classmates about one of the sets of pictures. I've blurred the names and photos of my classmates (to protect the innocent), leaving only Csaposs and myself. You can see that he asked "Where's my buddy Warren?"
For anyone who follows Guilderland politics, or who has read my original post, it is obvious that we are not buddies. My friend, not knowing of the dispute between us, responded on Don's "wall". Don responds: "Thanks. He's ever so cool ...." That picture is below.
So can anyone come up with a non-creepy reason why Don Csaposs would be interested in my elementary school photo? Comments welcome.
Are you facing an Aggravated DWI offense near Albany? We may be able to help. See our Aggravated DWI Lawyer page.
Big story in the Times Union today about my proposal for rational DWI enforcement in Guilderland.
The story is incomplete and gets one key detail wrong: The legal limit for driving while intoxicated (DWI) is 0.08 and the range for DWAI is 0.05 to 0.07.
Under New York State Law, a BAC of 0.05 is not impaired. Section 1195(2) of the Vehicle & Traffic Law says so. The full text is at bottom. My proposal is to instruct our police to follow state law. If someone blows a 0.05, the police should not write a DWAI ticket.
Another inaccuracy: A BAC of 0.06 is not defined as impaired either. It is relevant evidence of impairment, but not prima facie evidence -- there has to be more evidence to get a conviction. The issue of a 0.06 did not come up, but police should not write a DWAI ticket on a 0.06 unless they have other evidence of impairment. They usually do, so this is not a big issue.
I had also suggested a change in handling high BAC cases. If our police followed this proposal, it would get more drunks off the road and into treatment. Unfortunately the knee-jerk emotional reaction precluded any rational discussion at the meeting on this.
The article is incorrect both on the law and the specifics of my proposal. Aggravated DWI is 0.18 and above, not 0.17 as the article states.
***Update: Since I posted this, I received a letter from Law Enforcement Against Drunk Driving. It repeats the TU's inaccuracies, probably because the author gets his law from the newspaper instead of from the statutes. A picture of the letter is at the very bottom of this post.***
I suggested that in some cases our police might not write the Aggravated DWI ticket where the BAC is 0.20 or higher, writing a regular DWI instead.
The controversy here is understandable. Underlying it is the Albany DA's policy of no plea bargains for 0.20 or higher. State law allows plea bargains for high BAC cases. In most other counties we can still plea bargain these cases. The Times Union did a story on the DA policy back in May of 2008.
Plea bargains get more drunks off the road and into treatment. The normal reduction on an Aggravated DWI is to DWI. It is still a crime. The fines are lower but still over $2000 when you add it all up, and that's before the insurance impact. The defendant's license is still revoked, though the length of license revocation is 6 months instead of a year. The defendant has to get evaluated for alcohol abuse and still has to enter the Drinking Driver Program. They still have to attend a Victim Impact Panel.
When you don't allow plea bargaining, more cases are fought. I'm a DWI lawyer. DWI defense lawyers win a lot of cases. Sometimes we win because our client is innocent. And sometimes we win even though our client is actually guilty. In those cases our client walks. Her license is not revoked. She does not get a DWI on her record. She does not have to get evaluated for alcohol problems and does not have to get treatment. She does not attend a Victim Impact Panel and cannot participate in the Drinking Driver Program.
My proposal would hold more drunk drivers responsible for their crime. It would do more to get them off the road and into treatment. Isn't that what we want?
Criminal prosecution of drunk drivers isn't the only solution to address the problem. In the past I have talked about other things we can do. Back in 2005 I talked about how mass transit would reduce drunk driving. I also have talked about zoning for bars -- we always require bars to have ample parking. Maybe we should zone bars to mandate less parking. Here's a link to an article about that in zoning bars for parking in Milwaukee.
I should also mention that the breath tests are unreliable. Check the videos below:
Adopting arbitrary policies based on the BAC is just plain foolish when you take this into account.
As discussed above, the state law on BAC is below:
VTL 1195(2): 2. Probative value. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person arrested for violation of section eleven hundred ninety-two of this article:
(a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person's blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition;
(b) Evidence that there was more than .05 of one per centum but [fig 1] less than .07 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be relevant evidence, but shall not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol; and
(c) Evidence that there was [fig 1] .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.
Update: Click the following for the latest in Don Csaposs stalking me on the web. ------------------ For those who don't know, Donald Csaposs is a Guilderland town employee. His current title is "Grant Writer," though he has had other titles in the past, such as "Economic Development Director." Many consider him to be Ken Runion's right-hand man.
Well, Donald Csaposs appears to have another life. I don't think this makes him my fan, but he certainly likes to talk about me. Do a search on Google for "Comment by Donald" redlich on the Times Union blogs and you'll see he has posted numerous comments about me. (Comments appear at the bottom of the blog posts.) This does not include the many comments posted under fake names such as Col. Bat Guano, haddanuffathiscrap, reality now and factsdontlieliarslie. Then there Don's recent and completely out of the blue shot at me on Kristi Gustafson.
Of course it really isn't just about me. Do the same search, but only for Comment by Donald or just Csaposs and you'll see he is prolific - hundreds of results. One of my fellow town board members is another frequent target. But his latest is about me - in a post about the 20th congressional district special election. Will it never end?
The Guilderland School Board has been providing plenty of lessons to students and parents alike in the last few days - lessons in what not to do.
There was a school board meeting while I was out of town, but I did get to see a video of it. The Board would not allow speakers in "public comment period" to speak about the pending personnel issue. They have a rule that speakers in public comment period cannot talk about personnel matters in open session. They do have a procedure for allowing such comments to be made in an executive session (behind closed doors). Confronted with speakers who insisted on addressing the personnel matter, they stopped them and eventually the board left the room.
Lesson One is from this incident. Appropriately Lesson One, because it involves the First Amendment. Free speech. You've all heard of it. The problem is that the rule itself is unconstitutional, infringing the right to free speech. More specifically, the rule is based on the content of the speech - if your speech is about topic X, you can't talk about that. But you can talk about topics Y, Z, and Q.
In Tinker (393 US 503 (1969)), students wanted to come to school wearing black armbands as a sign of protesting the Vietnam War. The school prohibited the armbands. The Court ruled this was unconstitutional.
I've got to share some great quotes from the case:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ... The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. ... In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
In Hazelwood, 484 US 260 (1987), the Supreme Court ruled for the school. In doing so it showed what was special about Tinker, and why Tinker still applied. For those who aspire to be lawyers someday, this means they distinguished this case from Tinker.
The Hazelwood case involved the school newspaper, and the school did not allow a couple of articles to be published. There were two big reasons why this was different than Tinker. First, it was a school publication. Second, and I think more important, the school paper was considered part of the curriculum. And the school has the power to control its printing press and its curriculum.
In Tinker, there was no school facility being used for the "speech", and the speech did not relate to nor interfere with the curriculum.
Back to 2008 in Guilderland, a public comment period is not a school publication, and it is not part of the curriculum. The board can regulate the "time, place, and manner" of speech, but not its content. They could limit speakers to 3 minutes, for example. But they can't say "You can't talk about personnel."
I'd say that's just my opinion, but I think the Supreme Court is on the same page.
Now for Lesson Two. It's not a constitutional thing, but ...
In tonight's meeting the board sat down, did the pledge of allegiance, and then voted to go into executive session. There was no public comment period.
Here's the problem. The board has a practice (and I believe a policy) of having a public comment period at school board meetings. To my knowledge the board never voted to eliminate the public comment period. They violated their own rules by not having one. There should have been a public vote of the board to end or suspend the practice of having a public comment period.
I spoke briefly to the audience tonight, mainly about the First Amendment. I encouraged them to fight for their rights.
I thought about it later. It's more than that. If we don't fight for our rights, pretty soon we won't have rights any more. With all the attacks you see on lawyers, remember one thing - we're the ones who fight for your rights.
I've met Nelligan, and know a few of his students. The students I know are all ultra-liberal. And they all respect Nelligan even though he has different views.
Do people in Guilderland care about traffic on Route 20 (Western Avenue)?
The biggest item on tonight's Town Board agenda involved Glass Works Village. This proposed development would increase traffic. It seems like a good project. Where's the balance for the Town? So far I have yet to hear a single resident express concern about this. If the residents stay quiet, the board may have to assume that traffic is not a reason to stop this project.
Some background: A company, Platform Realty Group, proposes to develop a 50+ acre parcel of land near the Guilderland YMCA and Guilderland Elementary School. The proposed development (named Glass Works Village) would add roughly 300 homes and 200,000 square feet of commercial space (offices and retail). The current zoning would allow maybe 50 houses, so this is a far more intense use than the zoning currently allows. The idea behind the development is that the nature of it - a mixed use - will lead to people using their cars less because they will live close enough to certain things that they will be able to walk easily. If your office is in the development, you can walk to work. You can walk to the library, the YMCA, and the school. It's not a huge walk to 20 Mall (though I suspect not many people will walk that far for groceries).
Tonight we reviewed the "Environmental Impact Statement" (EIS) and made our "Findings" regarding environmental impact. I had a number of concerns with these documents, but the biggest has to do with traffic on Western Avenue (Route 20). Some relevant documents are on the Town website at: Guilderland Planning Department. Regarding traffic, the most important document is the (a large PDF document) Glass Works Village Traffic Study - Appendix C1.
Essentially, this project will increase traffic on Route 20, especially at the intersection with Route 155. I think the most important impact is on eastbound (toward Albany) traffic in the morning rush hour, but there are other big impacts. Platform's initial proposed findings ignored most traffic issues, including at 155 and 20. I sent a proposed revision and tonight we agreed on a final set of findings that acknowledged the traffic issue.
Right now morning traffic heading toward Albany on Western backs up to Winding Brook Drive (where the YMCA and the school are) on occasion. If this project goes through those backups will be more frequent, and I think it may even push back all the way to Willow Street, and more often. The intersection will also be worse going northbound on Route 155 in the morning. In the afternoon things will get worse westbound on Route 20 and southbound on 155.
Within a month or two, we will be making a decision on whether to approve this project. As I see it this sets a precedent for more projects like it in the future, meaning even more of an impact on traffic. To quote from the "Guilderland Hamlet Neighborhood Plan:"
Proposals ... currently under review (Glass Works Village PUD) will alter the existing character of this area .... While the Central Hamlet will become more intensely developed on the south side of Route 20, these projects present an excellent opportunity to tie together the various community amenities and establish a model for “hamlet-style” development for the Guilderland Hamlet Neighborhood and other areas of town.
We are talking about a model for future development. So if Gade Farms decides to turn their 200+ acres into a project like this, it will mean over 1000 new homes and nearly one million square feet of commercial space. And Route 20 will become a parking lot.
In the long term something more drastic needs to be done with Route 20, like roundabouts at 20 and 155, 20 and 146 (by the Stewarts), and maybe elsewhere. The so-called Comprehensive Plan (I say so-called because it's not comprehensive and not really a plan either) is inadequate because it fails to address the intersection of 155 and 20. The Guilderland Hamlet document talks about a roundabout for 146 and 20 (a good idea) but that hasn't been implemented yet. Is a roundabout at 155 and 20 an option? The Hamlet study talked about Glass Works Village having 200 or so residences. They're now talking about 300.
Another concern that really bothers me about this project is the concept of spot zoning. There was a recent case, Baumgarten v. Town of Northampton, 35 A.D.3d 1081, decided by the area's appellate court in 2007. The critical language from that case (citations omitted) is (geeky lawyer stuff in italics):
Petitioners allege that the Town Board engaged in illegal spot zoning, which is "[d]efined as the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners". While numerous factors are taken into account in evaluating such a claim, the ultimate inquiry is whether the challenged zoning "is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community". Here, as noted, the Town Board engaged in an extensive review of the proposed project. The parameters of the project fell well within the guidelines for a planned unit development district, the parcel is located in an area where there is a mix of residential, commercial and recreational properties and no adverse impact to these surrounding properties was substantiated. Moreover, while there is no doubt that the zoning amendment benefitted the owners of the subject parcel, it also benefitted the general welfare of the community by creating seasonal housing to accommodate tourism in the area. In short, the record discloses that sufficient forethought was given to the challenged determinations, and petitioners failed to overcome the strong presumption of validity that attached to them. Finally, the record before us contains sufficient proof that the Town Board complied with all statutory posting and publication requirements.
Some more key language, from earlier in the decision:
a planned unit development district is permitted under the Town's zoning ordinance provided numerous criteria are met, including minimum area requirements (i.e., not less than 10 acres), specified use requirements (including seasonal, residential developments), density requirements (not less than one half of an acre per dwelling unit) and coverage and open space requirements (building coverage cannot exceed 20% of the land area)
Notably missing from our zoning code (§280-17) are building coverage and density requirements. We do have open space requirements (at least 25%), minimum area (15 acres) and use requirements (residential and some limited business uses). I also don't see how this project benefits the general welfare of the community. It benefits the developers and the future residents.
In the above case, the person challenging the proposed development was represented by Peter Barber on the appeal. Barber is the Guilderland zoning chair. Northampton was represented by Michael Poulin, a friend of mine from law school. (Yes, it really is a small world.) Barber argued that the development in that case was "illegal spot zoning." I'm very concerned that the Town's role in rezoning for the Glass Works Village project looks a lot like spot zoning too. I don't think this is resolved by saying nice things about the project in the so-called Comprehensive Plan documents. It's not comprehensive to say "we like this project." Our zoning code needs clearer rules about where such developments will be allowed, and what the requirements for them will be. I'm not sure our current zoning code is sufficient to avoid the spot zoning problem.
Frankly, I agree with Barber on his appeal. This is not what zoning is supposed to be. Doing things this way leads to a "kiss the ring" approach and we see that here. Part of the proposal is that they'll pay a $1 million in "mitigation fees" to the Town to make up for the impact of the project. If it's a good project and its benefits outweigh the costs, they shouldn't have to pay mitigation fees. If the benefits aren't enough, they shouldn't be able to buy their way out of that. Maybe that $1 million should go toward fixing Route 20?
With all that said, Glass Works Village really does look like a great project. The people at Platform Realty have done a lot of work and have a vision that seems good. I hope Guilderland residents will take a careful look at it, and at the traffic impact, and let us know what they think.
