The Greenlawn Centerport Historical Association (GCHA) has started a data bank of all veterans that have ever lived in the Greenlawn-Centerport area. If you or someone you know is a veteran or is now on active duty, please contact Ruth Ann Hyne, the project sponsor. E-mail: hyneh@aol.com
Ruth Ann is collecting memorabilia, and would like to compile both an oral and written history if possible. The Hynes have a daughter Kim, who served on the hospital ship "Mercy", during Desert Storm.
She has agreed to prepare a recording that will become part of the collection. They encourage others to do the same. Ruth Ann's husband Bob served in the army in Germany for two years. Even though it was peacetime, they believe peacetime service is just as worthy of note as is the family's sacrifice-a veteran is a veteran.
The local American Legion Greeenlawn Post #1244 has already compiled a history containing over 150 names, history and pictures which they hope to build upon.
A GCHA Veterans Exhibit will open at the Suydam House following the Memorial Day Parade on May 30th. They will be honoring all of the loyal veterans from the American Revolution up to the present.
SPONSORED BY RUTH ANN HYNE
Greenlawn-Centerport Historical Association
Email: hyneh@aol.com
Wednesday, April 6, 2011
Friday, February 4, 2011
Spurred to Action to Protect the Wilderness at Pilgrim State
PARCELS AT RISK ...
Someone’s been working on the railroad at the site of the old Pilgrim State Psychiatric Facility railroad spur and the members of the Friends of the Edgewood Oak-Brush Plains Preserve are vowing to stop them in their tracks.
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| Edgewood Oak-Brush Plains Preserve |
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| Springtime in the Edgewood-Oak Brush Plains Preserve |
Since 2008, the New York and Atlantic Railway Company (NY& A) has been clearing trees, using plant defoliants and even burning rare plants approximately 2000 feet north from the southern end of the spur, according to residents who documented the activity and notified the Office of Parks, Recreation and Historic Preservation (OPRPH) and the New York State Department of Environmental Conservation (NYSDEC) in May of 2009. NY&A has been in business since 1994 and has an agreement with the Long Island Railroad (LIRR) to run freight trains on Long Island since 1997.
Patricia Burkhart, the President of the Friends of the Edgewood Preserve’s Board of Directors insists that no one should be doing any work on the railroad spur on the property which is contiguous to the Pilgrim parcel which is also contiguous to the Edgewood Preserve. The Edgewood Preserve is an 843 acre-wildlife habitat tucked neatly into one of the most developed and densely populated areas in Western Suffolk, located just off Old Commack Road between three Long Island towns, (Islip, Babylon and Huntington) Friends of the Edgewood Preserve are also fighting to get the 118 acre Pilgrim parcel designated part of the Edgewood Preserve. The land in question is a critical groundwater protection area for Long Island's drinking water.
“We first discovered the destruction on the spur in 2008 at the Southern end when they were spraying the defoliants. Then it was about 1500 feet lost. Last summer we discovered more and as of August 2010, the total is approximately 3500 feet destroyed.’ Ms. Burkhart told Freelance Investigations.
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| Mat Oppen legal intern for Friends of Edgewood Preserve looking South to main RR switch. |
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| Pitch pine and scrub oaks were removed to this point. Up to two years ago most of the spur was covered completely. |
In 1987, then Governor Mario Cuomo, officially turned the grounds of the old Edgewood State Hospital into the Edgewood Oak-Brush Plains Preserve. “It is a rare, globally imperiled wildlife habitat in the State and it is the only pitch pine scrub oak habitat on Long Island.” according to Ms. Burkhart.
“Chapter 635 of the Laws of 1987” as it became known; was intended to preserve unique lands on Long Island, for the people of New York State and is the law cited by those claiming the land should revert to the Edgewood Preserve and then be under jurisdiction of the DEC.
This is not a new issue. Senator John Flanagan (East Northport) weighed in on it as far back as November 2008, when he responded in a letter to a Dix Hills constituent concerned about the fate of the Pilgrim parcel.
Section 7 of Chapter 635 of the Laws of 1987 clearly provides that the Commissioner of the Office of General Services (OGS) "shall" arrange for the transfer of lands now or hereafter not necessarily for use by Pilgrim State Hospital into Oak-Brush Plains State Preserve. On October 27, 1998, OGS transferred 86 acres of land into the Preserve in fulfillment of the commitment made in Chapter 635. Despite the presence of approximately 118 additional acres of vacant land that currently exist adjacent to the Preserve and which are no longer needed by Pilgrim State Hospital, it would appear that Commissioner of OGS has failed to fulfill his responsibility under Chapter 635 by not transferring this property into the Oak-Brush Plains State Preserve.
Senator Flanagan then wrote, despite the veto by Governor Patterson of Senate bill (6728 A) which would have forced the OGS to immediately transfer the land to the State:
It is the opinion of Senate Majority Program and Counsel that the Commissioner of OGS still maintains the authority granted under Chapter 635 of the Laws of 1987 and must fulfill that commitment by transferring the property described in the Senate bill into the Oak-Brush Plains State Preserve. 11/6/08
Legislation Gets New Life in Assembly and Senate
Recently, Senator Owen Johnson (West Babylon) has re-introduced a bill (S-2734) to return the 118 acre Pilgrim parcel to the State DEC, where it can be protected. The bill was introduced with co-sponsors Senator Flanagan and the newly elected, Lee Zeldin (Shirley). It is a bill very similar to the one introduced earlier this year by Assemlyman Phil Ramos (Brentwood). This bill A3836 also demands the land revert to the State DEC and is co-sponsored by: Congressmen Andrew Raia (Northport), Steve Englebright (East Setauket); the Chair of the Committee on Tourism, Parks, Arts and Sports Development, Robert Sweeney (Lindenhurst); former Chair of the State Committee on the Environment and James D. Conte (Huntington).
From the Senate Bill:
More than twenty years have elapsed since Chapter 635 of the laws of was enacted and the Pilgrim State Hospital land has not been annexed to the Preserve. In recent years, however, the Pilgrim State Hospital land had been considered as a possible site for the New York State Department of Transportation to construct a large commercial multi-modal project known as the long Island Truck & Rail Inter Modal (LITRIM) Facility. The Region 10 Staff of the New York State Department of Transportation dedicated a tremendous amount of time and energy into the planning of the LITRIM project with the goal of reducing long haul truck traffic on the roads of long Island. While the sponsors recognize and support the need for the development of alternative methods of freight movement on and off long Island in order to reduce the burden of long haul trucking on the highways of long Island, the Pilgrim State Hospital location, due to recent substantial commercial development in the surrounding areas, is unsuitable for a multi-modal facility. Today, the area immediately surrounding the land is so vastly different than it was just a few years ago when the LITRIM project was first proposed. The recent approval of three major construction projects by town officials has so overburdened this area with traffic congestion that the State should not support yet another project that would further exacerbate the traffic congestion problem in this area. Consequently, this area should not undergo further development and the subject land should be transferred to the Edgewood Preserve as originally called for in 1987, thus ensuring more green space and mitigating future traffic congestion.
Ms. Burkhart claims that in the 1920’s the Gardiner Family, (also owners of Gardiner's Island) who originally owned the land, gave portions of their property for the construction of the Sagtikos State Parkway. Approximately 100 acres of forest was to remain on either side of the Parkway (60% on the east side and 40% on the west side) and designated to be state park land for public use only.
Then in 1929, the Office of Mental Hygiene requested permission of the Gardiner family to build a railroad spur to enable easier delivery of supplies and materials to the Pilgrim State Psychiatric Hospital, then under construction. The Gardiner Family agreed and wrote the sidetrack agreement that is now in the middle of a tug of war over its' purported purpose.
In March 2010, more destructive activity took place on the spur and once again the NYS-DEC and the OPRHP were notified by the Friends of the Edgewood Preserve, that approximately 2000 feet of mature forest had been cut down. In some places whole trees were pulled out by their roots and rare plants, including “wild pink” which had just been identified in 2008, by Steve Young of the New York State Natural Heritage Program, were destroyed within months of the finding the rare plants.
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| "Wild Pink" |
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| Trees tossed on the side after being ripped out by the roots |
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| Trees pulled out by their roots (Photos by P. Burkhart) |
Ms. Burkhart claims all Freedom of Information requests turned up no permits and/or agreements allowing NY&A to store and/or use heavy equipment on state land (including a back hoe with no identifying information) and to destroy wildlife seven or eight feet on either side of the spur and along approximately 2000 feet of what she believes is public land.
Calls to the New York State Department of Environmental Conservation (DEC) were responded to by Citizen Participation Specialist, Aphrodite Montalvo, who wrote in response to questions sent by Freelance Investigations:
DEC conducted an exhaustive investigation regarding the pesticide and clearing use and determined that the herbicide was applied by a contractor working for New York and Atlantic. The DEC investigation concluded that the commercial application of herbicide at issue was performed by a NYS-registered pesticide business, using NYS-registered pesticides in accordance with pesticide label directions. DEC staff investigating the matter did discover a record keeping violation. The violation was: "ECL 33-1205(1) requiring all commercial applicators to file at least annually a report on or before February first for the prior calendar year containing information for each pesticide application including EPA Registration number, product name, quantity of each pesticide used, date applied, and location of application. (A. Montalvo NYS/DEC)Recently, Aslplundh Tree Expert Company, Railroad Division, paid a thousand dollar fine to the DEC for the 2008 violation after an order on consent signed by DEC LI Regional Director, Peter Scully was issued in December of 2010.
When asked what happened to soil samples collected- had they ever been tested? The DEC response was:
The purpose of collecting the samples was to determine what herbicides were responsible for the vegetation control. Because the investigation has already determined the name of the pesticide, as well as the quantity, no additional information would have been gained in analyzing the samples. ( A. Montalvo NYS/DEC)
"Since they went to the trouble and expense of going to the site and taking the soil samples, we believe an agency meant to protect our air land and water would actually test the soil to make sure of what it contained. They trusted a company who failed to keep proper records. Testing the soil would have been in the publics' best interest." according to Ms. Burkhart.
Ms. Montalvo pointed out the fact that the land in question does not belong to the DEC and that the State Parks Department has made the following determination regarding the spur:
State Parks has advised other state agencies that the activities this spur was originally used to service the Pilgrim State Psychiatric Center. According to Parks, the spur was to be used by the State, and if the spur was not used for state purposes, it was agreed that the Rail Road could utilize it for their needs. According to Parks, no additional permits were required for use of the spur by New York and Atlantic. (A. Montalvo NYS/DEC)Peter Scully, the Director of the Long Island Region of the NYSDEC was asked about his opinion on whether or not the land belongs to the State or if the LIRR can let NY&A use it. He declined to respond.
In an August 5, 2010 letter from Carol Ash, then Commissioner of NYS OPRHP, Commissioner Ash wrote a response to Senator Owen Johnson (R-4th Senate District) who has championed the cause of the Preserve as far back as 2006 and had written to her about the renewed activity on the spur.
Dear Senator Johnson:
Thank you for your letter of July 19, 2010 regarding the Edgewood/Sagtikos Parkway Right-of-Way Rail Spur. As you know we are aware of the renewed activity on the spur and in response our Long Island Regional Director Ron Foley met on July 21, 2010 with Bob Clark of New York & Atlantic Railway (NY&AR) as well as Lou Sullo from the LIRR.
At that meeting Mr. Clark explained that a total of 3600’ of rail was recently cleared to temporarily store railroad cars. While we had hoped to examine documentation that describes the conditions under which NY&AR uses the State Park land, no such documents were produced. Since we cannot locate any agreement that may have been executed by the Office of Mental Health (DMH, now OMH) that would afford the LIRR or NY&AR any rights to use the siding we asked both Mr. Clark and Mr. Sullo to provide any documents that would establish their right to use this siding as soon as possible.
They were informed, regardless of what agreements may exist, State Parkland, including the parkways (on which this site is located) is held by OPRHP in trust for current and future generations of New Yorkers as recreational, scenic and natural lands. No work of any kind may take place on State Park property without submitting a plan for approval. That includes, but is not limited to clearing; and the use of pesticides and herbicides is strictly forbidden. The only permission given NY&AR at this time is for clean up of railroad debris and all other litter throughout and adjacent to the siding corridor and that care should be taken for the protection of endangered plant species.Commissioner Ash gave them an end of August deadline to produce the requested documents or discontinue using the track for any purpose other than the completion of the clean up and Ms. Ash also informed the Senator that “the DEC has two open investigations underway at the site for removal of plants without the permission of the landowner (Parks).”
(Carol Ash, Commissioner of Parks August 5, 2010 )
Within two months of sending this letter challenging the LIRR, Carol Ash was out as Commissioner and Andy Beers was in as Acting Commissioner of OPRHP for the State. Ms. Ash now works in an advisory role for the Alliance for New York State Parks.
Dan Keefe, Deputy Public Information Officer for the NYS OPRPH, provided Freelance Investigations with a copy of both the 1929 sidetrack agreement between the Gardiner family and the Long Island Railroad and the 1996 transfer agreement between the LIRR and NY&A. According to OPRHP they have concluded that these documents do give NY&A the rights to do maintenance on the spur.
In a letter dated November 4, 2010 from Andy Beers to Senator Owen Johnson, Mr. Beers appeared to change the opinion OPRHP had taken earlier, in August under Commissioner Ash. He wrote, “State Parks has received several documents that establish NY&A’s right to utilize the Pilgrim Spur.”
When the spur was first established it was used mostly for passengers, coal and some light supplies, but it was not a freight operation per say, according to Ms. Burkhart.
Mr. Beers insisted that the 1929 agreement entered into between the State and the LIRR giving rights to the LIRR still held- and that the LIRR had assigned those rights over to the NY&A.
Ms. Burkhart insists this is their mistake, the agreement was between the Pilgrim State Hospital (Office of Mental Hygiene) and the LIRR with the permission of the Gardiner family, not with State Parks. "There never was an agreement between State Parks and the LIRR, it was between the hospital and the LIRR, therefore Parks could not give permission." Ms. Burkhart added.
“The NYSDOT has reviewed those documents and concurs that they provide the LIRR and NY&A authorization to operate and conduct maintenance activities on the spur.” according to Mr. Beers’ letter. NY&A has agreed to clean-up debris along the spur and will “maintain good communications during the clean-up.” Andy Beers/NYS OPRHP
Ms. Burkhart claims that OPRHP had been in possession of these same documents as far back as last summer and did not consider them to be reasonable proof that NY&A had rights to the land. She points to the fact that Carol Ash was in possession of these same documents when she wrote her letter stating the land belonged to the State Parks and didn’t consider them enough for NY&A to claim the rights to regenerate the spur and destroy the trees and rare plant life in the process.
Ms. Burkhart believes the LIRR had no right to assign those rights to any other company or entity, according to the sidetrack agreement.
FOR HOSPITAL USE ONLY…?
The next piece of the story is currently the crux of the issue. According to Ms. Burkhart and other local environmental advocates, the permission was granted “FOR HOSPITAL PURPOSES ONLY” as per the sidetrack agreement, which was an addendum to the Gardiner’s will. Ms. Burkhart claims this shows that the LIRR had no right to confer rights to NY&A.
Ms. Burkhart said according to the addendum, it is "not for benefit of any other party not part of this agreement."
Since the hospital has not used the spur since 1980, it has regenerated back to a pitch pine scrub oak forest, which according to the interpretation of the will by Ms. Burkhart and other environmental groups, should be left to grow unfettered.
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| Pitch pine and scrub oak regenerate after being cut in 2008. |
Mr. Dick Amper, the Director of the Pine Barren’s Society spoke to Freelance Investigations regarding the issue in a recent interview and said “Burkhart is right, the Parks Department is wrong.”
Mr. Amper criticized the inaction on the part of politicians in such a serious matter. “It’s been dragging on too long. This is a critical groundwater protection area. The land is too valuable not to protect and we also need to preserve this critical habitat.”
The land and forest in question has regenerated over the spur. It is adjacent to the Pilgrim property and in order to establish a critical wildlife habitat corridor should become a contiguous area of the Edgewood Preserve according to Ms. Burkhart.
Attorney Karen Holmquist of the Mineola law firm of Klemanowicz, Holmquist &VandeStouwe LLP, agreed with Ms. Burkhart and called the Spur property use an "heir ship" issue. “The State hasn’t paid any attention to the Gardiner Will. It is ignoring the deeds transferring the rights, because the will was set up with reversionary rights to return it to the Gardiner Family Estate.” according to Ms. Holmquist.
Ms. Ash left the Parks department in October of last year and went to work as an advisor at the Alliance for New York Parks. According to published reports at the time, it was because she believed she could do more to keep the Parks open if she worked with the non-profit in an advisory position, rather than continue to try to work as Commissioner of Parks for New York, without the proper funding or necessary workers. OPRHP lost more than 1500 employees over the last two years under Governor Patterson- nearly 21% of the total State Parks workforce.
The fact that Carol Ash is still working on behalf of New York parks in any way gives rise to a sliver of hope for the environment on Long Island, according to Ms. Burkhart who believes that the DEC as well as OPRHP has been decimated by the loss of many of the most knowledgeable and ethical members of their agencies over the last few years- due to downsizing and severe budget cuts. Ms. Burkhart wonders "Who will protect the environment now?"
Governor Andrew Cuomo recently named former Open Space Institute (OSI) President, Joe Martens, as the new Commissioner of the Department of Environmental Conservation for New York State and also just appointed Rose Harvey as the new Commissioner of the Office of Parks Recreation and Historical Preservation. Andy Beers is out. Friends of the Edgewood Preserve are hopeful there is now a chance that the OPRHP will reassess the situation.
Some say the Gardiner family is really the only one with standing, to challenge use of the spur by NY&A in court, but to date no legal action has been taken by the Gardiner family.
A letter was sent by Freelance Investigations directly to Mrs. Alexandra Creel Goelet, the Gardiner family heir, in an attempt to clarify the intended meaning of the sidetrack agreement, and ask if they intend to reclaim the land, but it was not responded to at time of publication. Attempts to contact her attorney, were also unsuccessful.
THE INTERMODAL...the Smoking Gun?
Others may try to take matters into their own hands anyway. Dick Amper said “Legally or legislatively we need to complete this to fruition in 2011.”
Mr. Amper said politics is the real reason this issue is stalled. He pointed specifically to Congressman, Jerold Nadler and Governor Paterson as two key political figures involved in this issue. “Congressman Nadler and Governor Paterson have been the key obstructionists in this matter because they are more interested in building the Intermodal than in protecting our drinking water.”
The intermodal is a project that has been proposed for the Pilgrim Site and is considered by some the true smoking gun in this story. The proposed intermodal on the Pilgrim State Property is a rail-truck hub facility being touted by Congressman Nadler and strongly opposed by environmental groups who say the increased truck traffic defeats the purpose of an intermodal and the fact that this land is a critical groundwater protection area, makes it the worst choice for the intermodal project.
Environmentalists including Ms. Burkhart insist this land is already protected by Chapter 635 of the 1987 law and so it is not only a bad idea for the intermodal, it is also illegal, based on this law.
“While we applaud the basic idea of an intermodal to alleviate truck traffic by increasing rail/freight capacity, not on this groundwater protection area and not in the magnitude they propose. You would want several smaller ones strategically located on Long Island, not one mammoth one in the middle, that may not even take the trucks off the road.”, according to Mr. Ampers.
FRIENDS OF THE FRIENDS
Environmental groups that support the Friends of Edgewood Preserve and oppose the development on this land include- but are not limited to:
Pine Barrens Society
Sierra Club
Citizens Campaign
Natural Resources Defense Council
Great South Bay Audubon Society
Seatuck Environmental Association
American Littoral Society
Long Island Botanical Society
CLIMB
Parks and Trails NY
Environmental Advocates of NY
Two groups that are not local, but supported the revival of the truck-rail plan (the intermodal) are: Environmental Defense Fund and the New York League for Conservation Voters.
Local environmentalists, charge that these groups have nothing to do with Long Island and ignore the issue of increased truck traffic and its’ impact on the Brentwood area which due to traffic, already suffers severe health problems with a higher than average percentage of persons, suffering from asthma.
After the veto of the original Senate bill by Governor Paterson, Patricia Burkhart wrote a 4-page booklet titled "Averting a Health Crisis and Environmental Disaster in Western Suffolk County". Written in English and Spanish it outlined the reasons why the intermodal is a bad idea...both for the water and the air. She personally developed, paid for and distributed the booklets in the local neighborhoods, including Brentwood, which began a ground swell of concern by residents and their desire for more information and education about this critical groundwater protection area, according to Ms. Burkhart who added it is in its' fifth printing.
(View below shows proximity of Brentwood High School to the proposed LITRIM Intermodal and Pilgrim Spur) |
| Front cover of Burkhart's Booklet... |
Though Ms. Bergin-Weichbrodt admitted the resolution had “no teeth”, she said the Board felt it was important to support the land transfer back to the State, as according to the resolution, “The land in question is already under public ownership and was previously ordered protected as part of the Oak- Brush Preserve.”
To read the entire Senate bill: http://open.nysenate.gov/legislation/api/1.0/html/bill/S2734-2011
Friday, December 3, 2010
ISLIP TOWN ATTEMPTS TO GAIN CONTROL OF PRIVATELY OWNED WEB DOMAIN:
MACARTHURAIRPORT.COM
“For us to get a little piece of the action, that’s fine too.”
“We just want our pound of flesh.”
“We could have it built into the contracts and make them
advertise.”
No, these are not dialogue excerpts from an episode of the Sopranos, but actual quotes made by Islip Town representatives, contained in a federal lawsuit involving the Town of Islip. Town representatives made those remarks at meetings with regard to a privately owned and operated website called macarthurairport.com.
The Town of Islip was in federal court yesterday asking for a preliminary injunction and claiming “irreparable harm” if the Honorable Judge Leonard Wexler doesn’t grant them a requested temporary restraining order (TRO) to stop the decade old website- macarthurairport.com from operating, while a lawsuit about the issue plays out in the courts.
Mr. Pizzi, from the lawfirm of Connell Foley LLC (New Jersey, Pennsylvania and New York) represented the Town when he argued the Town of Islip is laying claim to 16 Domain names and 3 Twitter Accounts and claimed “irreparable harm” if they are not granted the TRO.
Granting of the TRO as his client requested would switch the domain names over to the Town immediately.
Owners of the website claim that would be a de-facto win for the Town, because if they are prevented from operating the website until they have their day in court, it would mean the end of their private operation of the website. The site is devoted to aiding the travelers going to and from Islip’s Macarthur Airport and has offered ten years of free airport related service to the public with no cost to the taxpayers, according to Black Sheep, the sites owners.
Internet disputes over domain names go to an organization called ICANN for resolution. The NAF or National Arbitration Forum in Denmark is responsible for issuing domain names for websites. Between one and three arbitrators look at papers submitted by both sides and then make a decision. NAF did not allow the tapes or transcripts of the tapes of their meetings, to be entered or considered. The transcripts and the tapes clearly showed the Town had misled them, according to Black Sheep.
When NAF was shown paperwork that the Town owns MacArthur Airport and the Town had (unbeknownst to Black Sheep) copyrighted and registered the name MacArthur Airport, they awarded it to the Town, documents showed.
Black Sheep contends they have never really had their day in court and if the information contained in the audio tapes were admitted, then the NAF decision would have been very different. That is why they sued in Federal Court and in the meantime the Town requested this emergency TRO to prevent what they call “irreparable harm” to the Town while the case goes to court.
WHAT’S IN A NAME?
Apparently, when it is an internet domain name…there’s a lot at stake.
The owners of macarthurairport.com, Jacques Ditte and his wife Jan Hanna bought and registered the domain name along with several others back in 2000, when they realized that the Town of Islips’ MacArthur Airport had no website.
They also registered:
nymcarthurairport.com
islipairport.com
islipmacarthurairport.com.
After purchasing the names, back in 2000, Mr. Ditte and Ms. Hanna, owners of Black Sheep Television Ltd., which has owned and operated the website for nearly ten years, got hundreds of hits with no website yet to go to, so they created and managed the new site with the goal of being helpful to the flying public.
They purchased information from the National Weather Service and provided links to the Transportation Security Administration and Homeland Security for official passenger and security information.
The website also provides useful information to the flying public about airlines, parking, accommodations and airport conditions.
Mr. Ditte, President of Black Sheep Television, Ltd. insists their website is run very professionally and they have a rigorous screening process for businesses to qualify to advertise on the site. They must be travel related and well established businesses in the area to qualify.
The site also links to online travel booking agencies to facilitate booking flights to and from the airport and offers a flight tracking service that allows them to list arrivals and departures and offers a complete weather program tied in with the NOAA.
McGOWAN HAD NO INTEREST IN WEBSITE
In September of 2001, according to court papers, Jacques Ditte said he reached out to the Town of Islip, which owns and runs MacArthur Airport, because he felt the need for more interaction after the events of 9/11.
He wrote to Brad Ringhouse, Administrative Assistant, for Islip Town “for the purposes of fostering a cooperative relationship and for providing enhanced services to the public.” according to court papers.
Mr. Ditte stressed that “At no point whatsoever did I intend to or did I offer the website and domain name for sale to the Defendant (the Town).”
Told by the Town agents that they saw no need for a website and did not want to promote the airport, Mr. Ditte and his wife continued to develop and operate the site privately to “provide a valuable service to the public”.
This all took place under former Supervisor Pete McGowan, who insiders claim had no use for the internet.
{When Mr. McGowen was indicted and resigned, Mr. Hofmeister who subsequently handled the negotiations between the Town of Islip and Black Sheep about the website, was voted in as temporary Supervisor of Islip Town until the vote in November when Phil Nolan was elected. After the election, Mr. Hofmeister was transferred to the airport where he still works.}
Years went by with no action or interaction from the Town and the website thrived and sustained itself without Town involvement of any kind.
NOW THE TOWN WANTS THEIR PIECE OF THE PIE
Then on November 8, 2007 under the authority of newly elected Islip Supervisor Phil Nolan, the Town invited Black Sheep Television, the owners of macarthurairport.com to a meeting at the airport with the pretense of forming and soliciting a cooperative relationship, according to Mr. Ditte. They discussed revenue sharing, enhancement of advertising and promotion of the airport. During the meeting the audio tape reveals Mr. Hofmeister stated “Our goal is to have a good website, and you know, if you are making some money and it’s working for you, that’s great. For us to get a little piece of the action, that’s fine too.”
Unfortunately for the Town and fortunately for Black Sheep Ltd., the meetings were audio taped and so the Town’s current claims that the website is doing irreparable harm appear absurd against the backdrop and tenure and tone of the original meetings and discussions. (A link to the tapes is provided at the end of this article).
The tapes are crisp and clear and there is no doubt that Eric Hofmeister, Nolan’s Deputy Commissioner, Brad Ringhouse, Airport Administrative Supervisor and Steve Siniki, Assistant Airport Administrative Supervisor who were in attendance as well as co-owners of the site Jacques Ditte and his wife Jan Hanna are all attempting to forge a beneficial, contractual and legal partnership with regard to operating the website together.
Mr. Hofmeister broaches the subject of buying the website domain name, but it is clear from the tapes of the meetings that Black Sheep Television was not interested in selling. The remainder of over two hours of taped meetings is about the cooperative partnership the Town is requesting and specifically with regard to information on the website that the Town wants to ensure is accurate. Mr. Hofmeister on several occasions insists the Town does not want to run a website, but just partner with the existing one that has been operating responsibly for over seven years at that point.
However, Eric Hofmeister at one point in the first meeting admits, “Downtown has a different vision of us creating our own website and overtaking you guys. But to me, you are getting 2 to 3 million hits already, we’d rather work together, why are we trying to rebuild the wheel?”
Mr. Hofmeister proposed they all think it over and a second meeting was scheduled for December 19, 2007 where the details of the cooperative contract loosely hashed out in the first meeting were to be more seriously discussed.
"ALL WE WANT IS OUR POUND OF FLESH"
From the second meeting on December 19, 2007, bullet points and a tentative agreement to work together are negotiated and Mr. Hofmeister agrees to have Town staff attorneys “write it up” and he promised to get it together so that it can be voted on by the Town Board.
At that point, Mr. Ditte asks, “Do you need us to go to the Town Board?”
Mr. Hofmeister replies revealing a side of Town politics already known to savvy insiders, “You are certainly welcome to, but we usually have things decided before the meetings. Usually, everyone is on board with it before the meeting happens. It’s read, voted on and we go right to the next question.”
Brad Ringhouse stated at one point in the meeting, “We are in a joint venture. It makes you more legitimate.”
This is the same man who under McGowan had told Mr. Ditte and Ms. Hanna, “We don’t need a website and we don’t want to promote the airport.” according to them.
Negotiations at the meetings included revenue sharing from advertising profits. Mr. Ditte said in court papers that they had not run the website for the purposes of generating revenue, but as more of a service, but they were not averse to expanding the website and increasing airport services.
The Long Island Tourism Board was discussed as a possible option to generate revenue and a possible 5 year contract with a 60-90 day notification period was also discussed.
Mr. Hofmeister stated that they could require anyone looking to negotiate a contract with the Town to advertise on the website. “We could build it into our own agreements that they are required to advertise on the website.”
At the second meeting Mr. Hofmeister bluntly states Black Sheep has a strong base operation and “We just want our pound of flesh.” Adding, they would want input on the look, the content and that the Town would have one of their “investigators” view every single page every week and decide if they see a problem.
Besides operating the website macarthurairport.com Black Sheep Television Ltd. makes television commercials, documentaries and PBS programs like Sesame Street's “Elmo’s World” and “Ageing in America”.
Mr. Ditte’s attorney, Howard E. Greenberg (Smithtown) argued before Judge Wexler yesterday that Black Sheep has yet to get their day in court, because the audiotapes of the meetings where a partnership is discussed were disallowed at the internet “hearings” where their web domain was taken away. What irreparable harm will be caused if the site continues to operate as it has for almost ten years with no issue or complaint from the Town, he asked the Court?
Mr. Pizzi stated that people are confused because their website is not an official website and they don’t know who is really operating it for the Town.
Mr. Greenberg said the Town directly copied codes from their website and acted in bad faith pretending to cooperate with his clients while surreptitiously creating their own website and seizing the domain names behind the scenes while continuing to communicate with Black Sheep as if their arrangement was still ongoing.
After both meetings Mr. Ditte states he maintained contact with Mr. Siniski and Eric Hofmeister continually from December 19, 2007 the date of the second meeting through August 12, 2008. During this time period the Town and Black Sheep “engaged in a campaign of information sharing, such as parking and airline information…the (Town’s) agents continued to provide direction as to the plaintiff’s operation of the website and we worked as a cooperative partnership. When I asked Mr. Hofmeister specifically about the status of the contract agreement that had been discussed in our previous meetings, Mr. Hofmeister’s only response was, “We are working on it.”, according to Mr. Ditte.
E-mails from Mr. Siniski to Black Sheep dated August 12th 2008 show the Town is still acting as if all is well:
From: Steve Siniski
Date: August 12, 20[,8 12:29:36 PM EDT
To: JD@ blacksheeptelevision.com
Subject RE: MacArthur Airport Parking Changes
Reply -To:
Hi Jacques:
Looks good. Could you also remove the Spirit banner on the airlines page. They are no longer flying out of here.
Thanks, Steve
Steve Siniski
Assistant Airport Administrative Supervisor
631-467-3300 (p)
631-467-3348 (f)
___________Original Message _____________
From: jacques[mailto:JD@blacksheeptelevision.com]
Sent 8/6/2008 9:10:47 AM
To:
Cc:
Subject RE: Re: MacArthur Airport Parking Changes
Blogger: Freelance lnvestlgations - Create Post
Date: August 12, 20[,8 12:29:36 PM EDT
To: JD@ blacksheeptelevision.com
Subject RE: MacArthur Airport Parking Changes
Reply -To:
Hi Jacques:
Looks good. Could you also remove the Spirit banner on the airlines page. They ar€ no longer flying out of here.
Thanks, Steve
Steve Siniski
Assistant Airport Administrative Supervisor
631-467-3300 (p)
631-467-3348 (f)
___________Original Message_______________
From: jacques[mailto:JD@blacksheeptelevision.com]
Sent 8/6/2008 9:10:47 AM
To: s.siniski @townofislip-ny.gov
Cc:
Subject RE: Re: MacArthur Airport Parking Changes
Hi Steve,
The changes have been made. Please review and confirm that there are no errors.
httpilwww.macarthurairportcom/pages/parking.shtnl
All the best,
Jacques
Jacques Ditte
Black Sheep Television Ltd.
P.O. Box 1116
Hampton Bays, N.Y. 11946
631-288-5477
Fax 631-288-6075
jd @ blacksheeptelevision.com
On August 6, 2008 at 8:58 AM, Steve Siniski wrote:
Hi Jacques,
How are you? We have some new pricing for the parking lots. They are as follows:
Daily lot $4 per 60 min
$14.00 maximum per 24 hr.
Economy Lot
$4 per 60 min.
$12.50 per 24 hr
Short Term
$3.00 per hour
Max charge $25.00
Thanks,
Steve
Mr. Ditte had argued in court documents that these messages prove that the Town continued to communicate with them even after filing plans for www.flylima.com and that the Town shared information to continue their mutual business operations.
On August 8, 2008, two days after the E Mail from Mr. Siniski, the Town of Islip filed a trademark application for Long Island MacArthur Airport which was granted on March 31, 2009 and an application for an airport design mark incorporating symbols consisting of a bird's wings, a sailboat, stars and horizontal bars, which was granted in April of 2009.
On August 12, 2008, the Town had already filed its application for trademark and was apparently also in the planning stages of www.flylima.com, according to court papers.
At no time did they ever reveal their plans to Black Sheep who were still operating under the verbal agreement and waiting patiently for the Town attorneys to “write it up.”
The Town had subsequently completed its’ own website and was now operating
After a long break in communication Mr. Ditte said he received a cease and desist letter dated May 27, 2009 from the law offices of Galgano & Associates PLLC demanding Black Sheep immediately stop using the domain names macarthurairport.com due to the copyright infringement. He said he was "astonished to see the Town had done a complete turnaround on our months of previous negotiations, discussions, brainstorming and agreements."
It became clear to me the only reason the Town had contacted Black Sheep and I in 2007 and continuing thereafter was for the purpose of investigation into our website and business and to steal the models and plans that we had put into place to provide an informational service to the public. If anyone was operating in bad faith it was the Town and its' agents and representatives in that we discovered that the Town had directly copied the code from our website directly into www.flylima.com
(Jacques Ditte)
An E-Mail with questions about the federal lawsuit and the audiotapes was sent to Mr. Pizzi, but questions were unanswered at time of publication deadline given to him. Mr. Pizzi sent a reply E-Mail directing me to the PACER website where I could purchase copies of the Towns' papers. He also said, "As the matter is in litigation, we have no response to your inquiry at this time."
He was asked when the Town hired his firm and how much has the Town paid them to date?
He was asked if they handled the copyright and logo paperwork for the Town as well and if so, when was that first begun?
He was asked to explain what the actual irreparable harm to the Town, other than as he testified yesterday, people now being confused as to which website is official.
Black Sheep noted if the Town hadn’t gone behind their backs despite their agreements to work together and started another site there would be no confusion in the first place.
The lawfirm of ConnellFoley LLC, hired by the Town has 121 members according to their website and specializes in Antitrust, Banking, Cable Television Law, Patents, Copyrights, Trademarks and Public Contract Law as well as several other specialties.
Mr. Greenberg has a Smithtown office of one…himself.
This David vs. Goliath case plays out at the Alfonse D’Amato Federal Courthouse in Central Islip at 4pm today.
Yesterday, Judge Wexler (whose son W.D. Wexler an attorney, was hired on March 3, 2010 by the Town as the Chairman of the Zoning Board of Appeals) adjourned the case while he listened to the audiotapes. Back in Court at 4pm Friday December 3, 2010.
To be continued…………..
THE DECISION ON THE TEMPORARY RESTRAINING ORDER
Decision on the TRO from Judge Wexler just in: Islip Town wins control of the website while the case winds through the court.
Black Sheep attorney, Howard Greenberg and his clients are assessing their options for appeal.
To hear a copy of the unedited audiotapes cut and paste the link below into your browser and go to:
https://rcpt.yousendit.com/1019882583/b5d08e1912bb4bbbc6bcfff81403e95f
Tuesday, November 16, 2010
Town of Brookhaven
HISTORIC APPELLATE DECISION in FIRE ISLAND
ZONING BOARD CASE
In a landmark decision last week four Appellate Court Judges sitting in Brooklyn ruled in favor of Long Island's environment and the future preservation of the landscape of Fire Island National Seashore.
The case involved the Town of Brookhaven Zoning Board's approval of building variances for a Fire Island resident which were granted even though they violated federal and town codes and were opposed by the Town DEP, the Fire Island National Seashore and environmental groups as well as his next door neighbors who filed an Article 78, (originally as pro se litigants) objecting to the variances.
In the Decision and Order of the Court, the Justices called the Board's decision “arbitrary and capricious and an abuse of power”. “The Board failed to engage in the requisite balancing test” the Court wrote, adding that the Brookhaven Town Zoning Board “disregarded evidence that granting the variances would have an adverse impact upon the physical and environmental conditions in the neighborhood, which is part of the Fire Island National Seashore.” The Judges also decided the changes were self-created hardships, that the Board didn’t give any weight to the consequences of granting these variances and the Court told Mr. Lewis in their decision he could “…fully enjoy the property without building an addition to the residence or building additional decks and fences.”
Matthew Atkinson, the successful attorney in the case said "From now on people seeking variances on Fire Island National Seashore are going to have to have a reason beyond personal greed to get them passed."
Richard Scheyer, the Chairman of the Islip Town Zoning Board (Scheyer and Jellenik, Nesconset) and the counsel of record for Mr. Edward S. Lewis the respondent in this Brookhaven case, had actually warned the Appellate Court Judges during his oral argument on October 15, of the “far reaching ramifications for zoning boards all across Long Island” if they ruled to overturn the lower court decision.
In what proved to be a prophetic statement of the magnitude of the win for his opponents,
Mr. Scheyer, one of the losing attorneys told the Court, “It’s going to have a massive impact on zoning boards all across Long Island. It will change the entire landscape.”
Mr. Scheyer, one of the losing attorneys told the Court, “It’s going to have a massive impact on zoning boards all across Long Island. It will change the entire landscape.”
The Judges ruled against his client, Mr. Lewis and in favor of Meg Switzgable and her husband Thomas Brown, who brought the Article 78 to the 2nd Department against the Town of Brookhaven Board of Zoning Appeals, The Town of Brookhaven and Mr. Edward S. Lewis, their next door neighbor on Fire Island Pines.
They learned on Friday they were successful and the lower court decision to allow seven variances was overturned.
They learned on Friday they were successful and the lower court decision to allow seven variances was overturned.
Matthew Atkinson, (Atkinson and Heffron/Jackson Heights) the Switzgable/Brown attorney, told the Appellate Court in his oral presentation that the State’s balancing test was ignored. Lewis and the Town had argued that the federal zoning standards for the Seashore are not compulsory. The Petitioners argued that Town Law compels the BZA to give weight to these standards when applying the mandated balancing test.
Federal standards limit lot coverage to 35% (35% Rule) and the BZA should consider “the physical or environmental conditions in the [Seashore] and they must also consider the detriment to the community."
Mr. Atkinson pointed out to the Court.
The Court agreed with Mr. Atkinson that the Zoning Boards’ decision granting eight variances to Mr. Lewis may indeed have been arbitrary and capricious and did not appear to strike a balance between the interests of the community and Mr. Lewis’ requests which the Plaintiff’s argued were well in excess of the 35% allowable. The original variance request by Mr. Lewis was for lot coverage of 41.5%, according to court documents.
The Second Judicial Department Justices; William F. Mastro, J.P., Steven W. Fisher, John M. Leventhal and Ariel E. Belen, JJ. unanimously reversed the order granting Mr. Lewis the variances he had obtained from the Towns’ Zoning Board of Appeals. Mr. Lewis had originally requested what he called “minimum and total side variances” for: a one story residence addition, a new deck and an existing deck, stairs and a shed as well as a 10 ft’ high privacy fence and 5’ to 9.7’ high fencing forward of principal structure. He also wanted permission for 41.5 % lot occupancy.
Representatives from the Department of Interior, Fire Island National Seashore (FINS) and local environmental groups were supportive of the Switzgable/Brown Article 78 Motion to reverse the Town of Brookhaven Zoning Boards' approval of the Lewis variance requests.
“The earth is in my blood”, announced Ms. Switzgable who grew up on Fire Island and may just have protecting Fire Island- in her DNA. Her mom, Yota Switzgable, was part of a group of ladies in the 1960’s who fought Robert Moses’ plan to build a road through all of the Islands. Thanks to their grassroots movement back then, to this day no cars are allowed on Fire Island and the proposed road stops at his namesake; the Robert Moses Causeway Bridge.
After several public hearings during which both opposition and pro opinions were added to the record, on April 1, 2009, Mr. Lewis was unanimously granted all variances he requested for changes on his property located on Fire Island Pines.
FINS and ABCO defend FIRE ISLAND
In June, 2009 Karl Christopher Soller, the Superintendent for the National Park Service under the United States Department of the Interior, wrote to State Supreme Court Justice, Honorable Peter H. Mayer, regarding the Switzgable vs. the Zoning Board of Appeals case (Index # 09 19095):
When Public Law 88-587, the enabling legislation for Fire Island National Seashore (FINS) was passed on September 11, 1964, the intent of Congress was to allow the 17 communities on Fire Island to continue in such a manner that supports the purpose of the Act that enabled the “Seashore”. Per that Act, Congress established the Fire Island National Seashore “for the purposes of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes and other natural features within Suffolk County, New York, which possesses high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population…”
They also provide for “the protection of the Seashore’s resources through local zoning limitations on use, location and size of structures on public and private property.”
Additionally, in Section 3 of this law; “the Secretary [of the interior] shall issue regulations, which may be amended from time to time, specifying standards that are consistent with the purposes of this Act for zoning ordinances which must meet his approval.”The communities on Fire Island have a maximum lot occupancy development of 35% of the lot area, which applies to all four zoning authorities with jurisdiction of the Seashore on Fire Island, including the Town of Brookhaven.
On June 1, 2009 Paul DeChance, Chairman of the Board of Zoning Appeals for the Town of Brookhaven released the Board's “Findings and Conclusions" in the Lewis case:
That the relief requested will not create an undesirable change in the nature and character of the neighborhood or detriment to nearby properties to require denial of the subject application.
That the benefit sought by the applicant cannot be achieved by method, feasible for the applicant to pursue, other than an area variance.
That the requested variances are not substantial in nature.
That the requested variance will not have an adverse effect on the impact on the physical or environmental conditions in the neighborhood.
While the hardship appears self-created, the Board concludes that such determination is insufficient to warrant a denial of the requested relief.”
Mr. Brown added, “These findings contained information that was not discussed at any of the public hearings.”
On June 4, 2010 K. Christopher Soller, (FINS) wrote to John L. Turner (Director of the Town of Brookhaven, DEP) regarding the Lewis Wetlands Permit, outlining findings by FINS:
The property in question appears to have been developed without any permits over a number of years, resulting in aggregate development that is inconsistent with both the Town of Brookhaven Zoning Codes and the Federal Zoning Codes for Fire Island National Seashore. The property as currently developed has a 41.5% lot occupancy, Federal and Town regulations limit lot occupancy to 35%. Additionally the development did not comply with Town’s regulations regarding setbacks and fence heights. As a result, the applicant had to apply for variances undertaken without appropriate permits from Brookhaven’s Board of Zoning Appeals (BZA). Although the BZA granted the variances for all but the fence along the side yard of the property, the Seashore continues to object to this overdevelopment.”
This was not totally accurate as the Zoning Board had granted all of the variances and it was Supreme Court Justice Mayer who upheld all the variances, except the 10 ft. fence.
Mr. Soller focused on the fact that safety requires setbacks- which are intended as buffers for fires- a critical issue due to the common type of construction on Fire Island (wooden frame structures elevated on pilings), according to him.
Calling the property “subject to condemnation” by the authority of the Secretary of the Interior and citing chapter and verse of Town Codes he was concerned because the BZA are consistently ignoring, Mr. Soller finished by saying “According to Town Code Chapter 20, Article VIII…the DEP is “to be responsible for complying with all federal, state and county laws, rules and regulations pertaining to the environment and to be responsible for ensuring such compliance by other parties.”
Ms. Switzgable and Mr. Brown wanted to express their sincere gratitude to Ms. MaryAnn Johnston President of the Affiliated Brookhaven Civic Organization (ABCO) for all her help. “Her inspiration, education and humor kept us going along the way. With her help and support our win was possible.”
With regard to the Decision she said, "This is new law. Now the Town is compelled to order the removal of non-permitted structures.”
Ms. Johnston was involved in the case all along the way, according to Ms. Switzgable and Mr. Brown.
Ms. Johnston, wrote a letter to Mr. Turner, (DEP) asking the Town to deny the Lewis application for a Wetlands and Waterway Permit for his property.
It is without regard for the existing Code, rules, regulations character of the community, neighbor rights or the fragile eco-system of the wetland seashore and its’ critical environment…not one summons or fine has been issued or paid for any of the numerous transgressions all clearly visible on the parcel…Among all our concerns are fire safety, habitat protection, wetland degradation and blatant disregard of the Federal and Town rules which clearly do not permit such abuse.” (June 4, 2010)
Ms. Johnston also decried the fact that Mr. Lewis appeared impervious to the rules and was apparently treated differently than other property owners with what she called “less obnoxious violations.”
Mr. Turner also received a letter from Senator Brian Foley (3rd District) requesting that the DEP reject the 606A Shorewalk Wetland Applications for the Lewis property:
It has been brought to my attention that federal rules intended to protect Fire Island may have been violated by the local Zoning Advisory Board in granting some recent variances. Allegedly the Fire Island National Seashore was not notified by Brookhaven, as required by law, and they were thus unable to register their objections.
There are Town statutes unique for the Seashore district. They are intended to work in cooperation with the federal rules to limit overdevelopment and protect the Seashore. Realizing that variances are dependent upon the approval of a Wetlands Application, I ask you closely examine this particular application, and if you find that federal rules were violated, I believe it is within your authority and duty to reject this application.(July 1, 2010)
At the oral arguments in Appellate Court both the Town Attorney, Mr. James J. Kevans and Mr. Lewis’ attorney, Mr. Scheyer, argued that these variances were common practice and not just favoritism for Mr. Lewis.
Mr. Scheyer had argued that letters from the Seashore all claiming that the granting of the variances was deleterious to the environment were “commonplace” and brushed them off saying they were irrelevant. “They always say that. I have hundreds of those letters.”
Strangely, Mr. Scheyer made the case for Ms. Switgable and Mr. Brown as he insisted “The environmentalists in their Amicus Brief say the Board failed to give compelling weight to the occupancy limitations of the Federal Law. Well that is not a compelling argument because they don’t have to. I personally have written hundreds of decisions with regard to National Seashore’s objections and local government. If you take their position, you can’t do anything.”
The Court then asked, “Should I just disregard that? What is their function then?”
Mr. Scheyer answered, “Advisory.”
Mr. Scheyer was forced to capitulate saying “They do have the power to condemn.”
The Court countered, “So how is that consistent with your opinion that it is advisory?”
Scheyer conceded it was more than advisory but added that he had never known of any instance where they had condemned a property that wasn’t a vacant lot.
Ms. Switzgable and Mr. Brown said, “That is the point. The BZA has been consistently flouting Federal and Town regulations to the degree that the Federal regulations have been ignored for years by them in granting these variances for building on more than 35% of the lots.”
This was confirmed by a 40 year study conducted by FINS called the “Kaufman Report”.
CONFLICT FOR CHAIRMAN DECHANCE?
In documents and in oral arguments heard in Brooklyn the Judges discussed whether there was a true conflict of interest when Mr. DeChance, the Chairman of the Zoning Board did not recuse himself even though he continued to personally employ Mr. Thomas Cramer (Cramer Consulting/Miller Place). Mr. Cramer was an expeditor hired by Mr. Lewis and Chairman DeChance had also hired Mr. Cramer as an expediter for a case of his own. He continued to employ Mr. Cramer for as long as two hearings into the Lewis case documents show.
The Court noted Mr. DeChance recognized Mr. Cramer as an “expert witness” for Mr. Lewis and never recused himself or left the room during deliberations and actually voted, something the Appellate Court noted was “curious” since he had consistently recused himself in the past when Mr. Cramer was before him.
Mr. Scheyer insisted there wasn’t a conflict when asked by the Court, “So doesn’t that leave a bad appearance of impropriety, since he had always recused himself before?’
Two hearings into the case, and Mr. DeChance had already appointed Mr. Cramer as an expert witness, he also deliberated and voted on the matter, one Justice remarked "We have a two year rule with regard to things like this.”
Mr. Scheyer argued that because the vote was unanimous, even if Mr. DeChance had recused himself it would have passed anyway.
Mr. Atkinson disagreed with that assessment in his final argument, saying there was no way to know if and how a recusal could have affected things.
Mr. Kevins, the Assistant Town Attorney who told the Appellate Court he was counsel to the Town’s Ethics Board was also grilled about the DeChance conflict when he stepped up to the podium. The Court noted that Mr. Lewis was on the Pines Zoning Advisory Board and asked Mr. Kevins if he thought Mr. DeChance should have recused himself.
Earlier, Mr. Scheyer had alluded to the Court that Chairman DeChance had gotten an ethics opinion that said it was ok for him to stay on and vote.
Questioned by the Court if one actually existed, Mr. Kevins said he knew of no such opinion, but when pressed to make a decision as to whether he felt it was a conflict, Mr. Kevins voiced softened to a whisper, so low the Judge had to repeat his answer, “That he did not have to recuse himself.” in his opinion.
To which the Justice replied, “Even though he always recused himself in the past?…Isn’t it curious when he doesn’t recuse himself in this one?…You can see why we’re concerned, when he doesn’t recuse himself on this one and Mr. Lewis is on a Board as well.” (Pine Island Zoning Advisory Board).
THE CHARACTER OF THE NEIGHBORHOOD
Mr. Scheyer had argued and the Zoning Board had agreed the variances Mr. Lewis requested made no change to the character of the neighborhood.
When the Court asked him “Weren’t these changes made after the code changes were enacted?”
“Not exactly”, Mr. Scheyer responded. To which the Judge interjected, “There’s a lot of not entirely, not exactly, not all in your argument.”
Not phased by the rebuke, Mr. Scheyer uttered the words that again seemed to make the case for the other side, “These properties were modified many times since they were originally built.”
The Court asked about the code changes that had taken effect to which Mr. Scheyer replied, “The Board is aware of all those changes, this is something they are particularly familiar with, something they do all the time, they handle hundreds of cases on Fire Island.”
The real issue for him was to make sure that FINS would not be the controlling statutory body that controls land use and zoning on Fire Island. “The 1964 law that gave that power to the local municipalities” Scheyer insisted "Most of the zoning boards don’t follow it. Almost none of them do.”
Mr. Kevins, assistant Town Attorney, for the Town of Brookhaven BZA, argued U.S. Department of Interior Laws don’t transcend Town Code. Kevins agreed some of the FINS Rules have been adopted by the Town; including the 35% lot occupancy and the 28 ft. height requirement rule have been adopted.
In adopting the federal regulations the Town made the definition of a structure to be anything constructed or erected in or on the land. In other words if God didn’t put it there it is a structure.
Differences between the standards for the Town zoning codes and FINS are the issue, Scheyer tried to convince the Court.
“For example, the Town would not count the pond and slates on the ground as structures.” Mr. Scheyer told the Court. He also insisted the pond was not man made and therefore not a structure, yet Mr. Brown pointed out that an article in the Fire Island News about Ken Ruzicka, the president of Ruzicka Design, says he is the man behind dozens of ponds in the Pines, “including that of Ed Lewis and Glen Wieglus at their bay front home.”
AND THE SURVEY SAYS… THE HOUSE and DECK
ARE DISAPPEARING?
Ms. Switzgable and Mr. Brown insisted that Mr. Lewis built for eight years without permits, the hardships were self-created and added that the survey of his property was found to be inaccurate more than once.
The Court agreed with their assessments when they wrote, “In light of the fact that Mr. Lewis was a member of the Pines Zoning Advisory Committee and did not deny that he built illegally on his property with complete disregard for the zoning laws, his hardship was self-created and supported denial of the variances.”
The Court declined to address the issue of inaccurate surveys submitted by Mr. Lewis and documented in the record.
Ms. Switzgable and Mr. Brown had asked why 246 square feet disappeared from one survey to another. In the survey dated August 8, 2007 labeled “the house and decks as currently calculated" equaled 5,518 S.F.
In the survey labeled “BZA--January 27, 2009 the “house and decks as currently calculated” equaled 5,272 S.F.
In the survey labeled “BZA--January 27, 2009 the “house and decks as currently calculated” equaled 5,272 S.F.
John McGoldrick of the Office of Professional Discipline, which handles 48 licensed professions, including issues with licensed surveyors was notified of this and other discrepancies in the survey by Switzgable/Brown. Mr. McGoldrick said "Under Education Law they are confidential until a disposition is made and results are published. If the case is closed without action, it will remain confidential."
Ms. Switzgable and Mr. Brown had also argued that the BZA failed to give weight to the “self-created hardship” factor which they contend “must be accorded some weight within the Seashore, such that wholly non-necessary variances are not granted solely for private gain at the expense of a protected National Seashore. “
The findings of the Court were that for Mr. Lewis this was a self-created hardship even though Mr. Cramer, had testified as the expert witness, accepted earlier by Mr. DeChance that it was not a self-created hardship. The Town argued that the BZA has discretion in these matters. Ms. Switzgable and Mr. Brown said while that may be true, that it should be balanced against the ecological harm that ignoring the 35% Rule could do to Fire Island. The Court agreed.
Ms. Switzgable and Mr. Brown learned the hard way they claim that expert witness testimony trumps generalized community opposition almost all the time. The BZA argued that they only needed to consider “what’s on the ground”.
The only variance the Supreme Court denied was the 10 ft. fence that Mr. Lewis had requested to build using another fence he had built on his property (also without permits) as his example of an “on the ground” similar structure in the area. “It would be contrary to public policy to allow Lewis to use his illegal wall as the basis to define the character of the neighborhood so he could erect more walls.” according to Mr. Atkinson, the Switzgable/Brown attorney.
Ms. Johnston asked, "In these tough fiscal times I'd like to know how much the Town spent to defend this 10 ft fence for a private individual? Why wouldn't they let him spend his own money to appeal?"
An “Amicus Brief” or (Friend of the Court) was submitted by several environmental groups including the Citizens Campaign for the Environment, the Peconic Baykeeper, Group for the East End and the Seatuck Environmental Association in support of the Article 78 motion.
Karl Christopher Soller wrote on behalf of the Department of the Interior, the National Park Service and in his capacity as the Superintendent of the Fire Island National Seashore in support of the Amicus Brief:
(No reason was given as to why the Amicus Brief was not accepted by the Court)
“I was personally involved in writing the federal zoning regulations for Fire Island National Seashore and believe the Federal regulations and the subsequently adopted Town rules intended to protect Fire Island are regularly overridden by the local zoning board of appeals even when the National Park Service has filed an objection to a variance application. We agree the cumulative effect of the continuous granting of variances by the local zoning authorities in opposition to the Federal regulations and subsequently adopted Town ordinances is having a detrimental impact on the environmental quality of Fire Island and a detrimental impact on the character of Fire Island’s communities which the Federal regulations and subsequently the adopted Town ordinances were designed to protect.”
Mr. Soller added that Federal regulations requiring the local zoning authority to notify the Fire Island National Seashore of all variance applications on Fire Island, were not followed. In this instance FINS had no record of notification, according to Mr. Soller.
Mr. Kevins agreed with Mr. Scheyer in admitting that it had been the Zoning Boards’ practice over the last six years not to send the actual zoning applications to FINS as required by law, but instead they sent a calendar of dates of zoning board meetings and names and addresses of anyone requesting variances.
Ms. Switzgable and Mr. Brown said the Board sends so much information it is difficult to wade through to find what is an issue for FINS. Mr. Kevins said no one had complained about the process until now.
Prompting the Judge to ask why it would take someone complaining for them to follow the law.
The question still remains if the Town will compel Mr. Lewis to remove all the things he did not deny he built illegally, without permits, for the eight years prior to this case.
Calls for comments on the story were made to Mr. Kevins, Mr. Cramer, Mr Scheyer and the Town of Brookhaven.
No one desired to comment to date.
Friday, October 29, 2010
NO SECURITY IN ISLIP’S “ALARMING” BIDDING PROCESS…
Citing the Town’s “mistakes” Islip Town rejects lowest qualified bidder….TWICE
"I said there were mistakes made." Islip Town Attorney Alicia O'Connor admitted at a recent Town Board meeting about a security contract bid put out earlier this year.
World Wide Security owners in Garden City, hope the third time is the charm in their attempt to have their company’s low bid for a Town of Islip contract for Alarm Network and Maintenance and Service accepted.
Twice before their low bid has been rejected by Islip Town, even though World Wide Security (WWS), executives say they fulfilled all bid requirements and both times they were significantly lower than the only other bidding company; Intellitec, of Westbury, which has held the contract with the Town of Islip for over five years.
Intellitec’s owner claims the lower bid isn’t always the best financially, after factoring in other variables.
Town Supervisor, Phil Nolan also admitted at the meeting the Town had made errors in what he called "an important contract" saying, "We are acknowledging the mistakes and we are going to correct it."
THE FIRST BID...
Pat Mara and her husband Kenneth, owners of World Wide Security put their first bid in response to a request for bids by the Town, back in March of this year. Originally they were told there were over 80 systems to monitor in about 40 or fifty buildings, but a complete list was not supplied until a week after the initial faxed request for bids was made, according to WWS. There was a “pre-bid meeting” according to WWS executives, attended by Mike Patejdl, the Director of Purchasing for Islip Town, Jeffrey Hausner, from Intellitec and Michael Catalano, the Chief Fire Marshal for Public Safety Enforcement for Islip. Also in attendance were WWS staff members Terri George, (who primarily handled the bid) Brian Macquade and Dave Young.
WWS staff and Intellitec were told the Town wanted to cut the cost of Fire and Security Alarm monitoring, currently handled by the Town.
At the time the town had just laid off approximately 39 workers. WWS and Intellitec were told the Town’s system was “in good condition”. The Town requested a10% bid bond (of the annual cost of the monitoring) and a one year performance bond at that meeting. WWS did present a certified check to cover both that day. Intellitec did not. When Intellitec did not give a check, Mr. Patedjl returned the check to Ms. George saying the bond check was no longer needed.
Mr. Hausner spoke to Freelance Investigations and claims this was not a requirement. “There was definitely not a bid bond required, because I called to check and they told me no. If you go through the document there is nothing there that says you need a bid bond -I could get one overnight if necessary. They only specified that the successful securities contractor provide a performance bond.”
Part of the specifications for the bid were that there would be no sub-contractors to be used and the company must have a NYC Fire approved Central Station which requires at least two persons manning monitors at all times 24/7 365 days a year. WWS executives claim their bid has that and that Intellitec does not.
Mr. Hausner, said this is not an issue as Intellitec has Rapid Response Monitoring, “ Rapid Response Monitoring is a NYC Fire approved Central Station", according to Mr. Hausner. "We admit Rapid Response is a subcontractor, but so is Vision Monitoring, another company under WWS.”
Ms. Mara claims it is not the same. “In our bid submittal we submitted the bid as WWS and Vision Monitoring together. They did not, with no mention of Rapid Response in Syracuse at the outset.”
Mr. Hausner countered, “Rapid Response was printed on the initial bid provided to the Town. The subcontracting had nothing to do with the monitoring and WWS was not a certified dealer and did not have the certifications for Bosch Radionics and Mirtone, which really was the issue.”
Mr. Hausner added 90% of the Towns’ equipment is Bosch.
WWS said Vision Monitoring is a certified Bosch dealer and supplied Freelance Investigations with their certificate as verification.
Mr. Hausner insisted this was the real issue, that WWS does not hold the certification, Vision Monitoring does.
*************************************************************************
WWS first Bid on 88 sites (55 Burglar Alarms and 33 Fire Alarms) was:
$2,261.60/ month for monitoring ($29,264.20/year)
Hourly rate: $100 for the first half hour; $50 for the next quarter hour for regular service.
Emergency service: $150 for the first half hour and $75 for the next quarter hour.
Central works 2000 computer support fee was $500/year
*************************************************************************
Intellitec bid: $2,518.65/month ($36,598.80) for monitoring
Hourly rate: $ 98.00 for the first half hour; $30 for the next quarter hour.
Central works 2000 computer support fee was one dollar.
Emergency service $150 for the first half hour; the next quarter hour $45 dollars.
******************************************************************************
Jeffrey Hausner told Freelance Investigations:
WWS:
Mr. Hausner claims on the first bid, based on the hourly rates, his bid would end up being lower. “They did not fulfill their certificate requirements. It is monitoring, plus an hourly rate there are two components. When combined our bid was lower.”
In May, the Vice President of Intellitec, Jeff Hausner, a Nassau County resident, made a $250 contribution to the Friends of Phil Nolan. Hausner admitted he made the contribution at a cocktail party and said he grew up in Ronkonkoma and as such had lived in Islip Town, so it was not unusual for him to contribute.
In June the Town of Islip announced they had decided to rebid the job again.
Before the second bid, the Town Attorney’s office called WWS to set up a meeting with Mr. Catalano, (Fire Commissioner) and Mr. Lawrence (Larry) O’Leary, the Public Safety Commissioner for Islip and head of Code Enforcement for the Town, for the next day. With little notice, the owner and president of WWS, Kenneth Mara, the bids’ administrative project manager’ Terri George and two others from WWS drove to Islip from Garden City, where their firm is located, and said they were told when they were five minutes away that the Security Commissioner (O’Leary) could not attend and the meeting had been canceled.
Mr. Hausner said he was not privy to this meeting.
THE SECOND BID...
The Town told Ms. George (WWS) that they had decided to re-bid the project (in June).
The second set of bids were:
**********************************************************************
World Wide Security: $81,180.70 $2513.00/monthly monitoring fee
$50/for the first half hour $25 for the next quarter hour
$500 went to zero on the support fee
Emergency Service to $55/hour and $27.50 for a quarter hour.
**********************************************************************
Intellitec: $118,866.80 $2179.80/monthly monitoring fee
$98/for the first half hour; $30/next quarter hour.
Support Fee: $1 dollar
Emergency Service Fee: $155/hour $45/next quarter hour
**********************************************************************
After the numbers for the second bid were in, Mr. Hausner questioned how WWS could pay their people with these numbers. “I kept my prices the same except the monitoring which I dropped and I only raised the Emergency Service fee five dollars so I wouldn’t lose money on an emergency call.”
Ms. Mara, Vice President of WWS, responded, “How we pay our people should be of no concern to Mr. Hausner.” At the Town Board meeting Ms. Mara indicated that her company is required by law to pay prevailing wage of $35 to $65/hour, that her contract bid was for $100/hour and that currently Intellitec was getting $200/hour from the Town of Islip for the service they have provided since 2006.
Mr. Hausner also noted, “I’ve lost hundreds of bids because I was not certified in a particular product as a dealer. This is the normal course of business. WWS was not certified in Bosch period.” said Hausner, something WWS denies.
According to the specs, WWS or Intellitec would be required to handle over 88 systems including Bosch, which was also required by the Town in their specs, even though it’s like requiring the antiquated DOS system for your computer, according to Ms. George of WWS.
After the second Bid WWS claims they were nearly $40,000 dollars lower than Intellitec, but again, they were not awarded the bid.
Forced to give an hourly rate, WWS came in at $100/hour compared to Intellitec’s $196/hour.
However, Mr. Hausner claims when you add up the numbers, Intellitec's actual hourly rate comes down to $158/hour and when other variables are factored in, according to him, it is really less expensive. WWS disagrees with that assessment insisting they have been the lower bid both times.
No winning bid was chosen again.
Calling WWS’s bid “non-responsive” Alicia O’Connor, the Islip Town Attorney, spoke to WWS the next day. WWS said Ms. O’Connor told them they were not awarded the bid because they did not meet all the requirements. WWS insisted they had a Central Station on their premises and that Intellitec did not and invited her to take a ride to Garden City so they could show her their Central Station on their facility that very day. Ms. O’Connor declined saying “We’re not required to do that.” In the phone conversation Ms. O’Connor was claiming the process was now “too confused”, according to Ms. Mara V.P. of WWS, a claim Ms. Mara reiterated at the September Town Board meeting saying "These were your bid specs and the Town of Islip is now paying $40,000 dollars more a year because you're confused?"
Ms. O'Connor responded at that meeting, "I didn't say the Town was confused, I said there were some mistakes in the bidding process, which we have reviewed." adding that it was in the "Town's best interest and in compliance with the law" to rebid a third time.
After the second bid, Mike Patdjl told WWS that Ms. O'Connor told him to tell WWS they were not getting the bid because they didn’t submit a certificate of insurance, according to Ms. George. This despite the fact that it was clearly stated in the bid papers that only the successful bidder needed to submit their certificate of insurance, so therefore, not until a bid has been awarded would it be required, according WWS. Even Mr. Hausner agreed in our phone interview that WWS didn’t need one. Mr. Hausner said he had included it in his package anyway, because it is a simple form, "documenting my ability to obtain insurance." Ms. O'Connor's office declined to answer the question about the insurance requirement or any others regarding the bidding process sent to her office by Freelance Investigations.
At a Town Board meeting in August, Ms. George, from WWS asked the Board for a private meeting to discuss the issue and the Board agreed. The next morning, according to Ms. George, without ever having confirmed a date or time for the meeting at 11:30 AM the Town Attorney’s office called her and said her firm missed the meeting that they said was supposedly scheduled for 11:00 AM. Another meeting was hastily scheduled for 1:30 that afternoon attended by; a different fire marshal, Larry O’Leary, Alicia O’Connor, her legal assistant and members of the WWS team.
The Town was informed by WWS that the Towns’ own bid specs were to include a N.Y. City Fire approved Central Station, which WWS says they do have and that Intellitec does not. Intellitec was planning to use Rapid Response Monitoring System in Syracuse, as their Central Station. WWS believe this violates the provision of no subcontracting, because even though the owner of Rapid Response also owns a piece of Intellitec and does business with them, it is still considered a separate company and as such is considered a subcontractor.
WWS claims Vision monitoring is not a subcontractor, it is a company wholly owned by WWS, the same owners.
Mr. Hausner says his part ownership of a small piece of Rapid Response is the same as WWS owning Vision Monitoring, which he claims is also technically a separate company and as such is also a sub-contractor.
WWS owner Pat Mara spoke with Freelance Investigations recently about the myriad of problems with the bidding process itself. Ms. Mara claims that some of the specs required by the Town made no sense. For example, the Town required the company to be S.I.A. certified. This course is not even given any longer. They also required the use of a Mirtone Dealer (made by G.E.) as a necessary “proprietary” supplier, despite the fact that it is not a proprietary dealer as G.E. sells Mirtone Vigilante to another company, according to Ms. Mara.
Mr. Hausner said Intellitec has $40,000 dollars worth of Mirtone parts available 24/7 in an emergency. "Intellitec can provide them at a moments notice. WWS would have to acquire these parts third hand and on a weekend in an emergency, that would be difficult if not impossible to accomplish."
In a letter to Islip Town Councilman Steven J. Flotteran (Rep,) WWS Vice President, Pat Mara discussed the concerns she had with the bidding process with the Town of Islip.
“We are a strong company who are reputable and work for some of the largest organizations in the world. I followed the bid specifications to the letter.” Ms. Mara wrote.
Ms. Mara offered to replace the Mirtone Alarm equipment that is in two Town Hall Buildings free of charge if they could not repair or replace it and that they would guarantee they would use brand new Honeywell Equipment, (the world’s largest supplier of fire and security equipment). Ms. Mara cc’d the letter to the members of the Town Board, inviting Phil Nolan, the Town Supervisor and the rest of the Board to visit their facility and see for themselves, that they do have a NYC Fire Department approved Central Station. Ms. Mara said no one took her up on the offer.
WWS provided the documentation to Freelance Investigations to support their claims and gave Freelance Investigations a tour of their facility in Garden City, including their on premise Central Station, which contained state of the art modern technology and was manned by two employees at the time.
Mr Hausner sent Freelance Investigations a link to a virtual tour of Rapid Response, their state of the art, Central Station Monitoring facility located in Syracuse, New York.
American Securities Technologies Inc. D/B/A WWS does business with a wide range of clients including the government, West Islip School District, the Town of Hempstead, Nassau County and NYC Department of HRA at over forty locations.
Mr. Hausner declined to name any of his clients stating, "We are in the security business and the last thing I would do is reveal a client due to security concerns."
On September 23, 2010 Patricia Mara sent a letter to Islip Town Attorney, Ms. O’Connor requesting a definitive answer on the second set of bids.
The letter was sent in advance of the recent September 28th Town Board meeting where Ms. O’Connor admitted on the record that the Town had made mistakes in the specifications and the process itself was flawed for the second time, though she declined to specify what the mistakes were.
No one disputes the quality or the credentials of either company. Mr. Nolan admitted for the record at the September meeting that both sides have "great expertise" and he insisted "This is an important contract that we are looking at in totality."
THE THIRD BID…
The Mara’s and their employees say they have invested so much time and energy into this bidding process so far it is really a question as to whether it is even worth it to re-bid. Ms George called the process "unjust" and "it is nothing like I've ever seen before." at the Town Board meeting, adding her company put in over 200 hours of time and energy on the bidding process so far. According to them, the anomalies of the process itself need to be exposed.
Mr. Nolan responded, "We've given it an even handed negotiation, what more do you want?"
Terry George also asked at the September 28th meeting why Mr. O’Leary and the Fire Commissioner were at these meetings and not just the purchasing agent as is her experience in the 27 years she has been working creating bids in the industry. Mr. Hausner said their presence at the meetings was "not out of the ordinary". Ms. George asked of the Board, "I'd like to know what's missing and what errors you found. I'm concerned because normally the other bidders try to get the lowest bid thrown out."
Ms. George also charged the Town is purposely trying to throw out WWS even though they are the lowest. "Intellitec doesn't have to say a word, because the Town Board members are doing the work for them."
Mr. Nolan insisted that "We're just trying to get the best outcome." Saying "I'm not thrilled with bidding something three times...but if an error is correctable, then we should do it. It's a simple as that."
No one knows when the next bid will be or if they will re-bid, according to owners of WWS and Intellitec.
“We may not even be invited to the next bid, if we are, we will bid unless the new bid specs are clearly aimed at Intellitec. If it is not clearly looking for the lower bid then we won’t waste our employees’ time.” according to Ms. Mara.
Mr Hausner declined to say if Intellitec will bid again as no date for the third bid has been set.
Freelance Investigations called Ms. O’Connor with a list of questions regarding the bidding process itself and a time frame for the third bidding invitations to go out. Calls to Ms. O’Connor were handled by Amy Basta, the Director of Public Information for Islip Town, who sent this E-Mail response from Ms. O’Connor.
"I said there were mistakes made." Islip Town Attorney Alicia O'Connor admitted at a recent Town Board meeting about a security contract bid put out earlier this year.
World Wide Security owners in Garden City, hope the third time is the charm in their attempt to have their company’s low bid for a Town of Islip contract for Alarm Network and Maintenance and Service accepted.
Twice before their low bid has been rejected by Islip Town, even though World Wide Security (WWS), executives say they fulfilled all bid requirements and both times they were significantly lower than the only other bidding company; Intellitec, of Westbury, which has held the contract with the Town of Islip for over five years.
Intellitec’s owner claims the lower bid isn’t always the best financially, after factoring in other variables.
Town Supervisor, Phil Nolan also admitted at the meeting the Town had made errors in what he called "an important contract" saying, "We are acknowledging the mistakes and we are going to correct it."
THE FIRST BID...
Pat Mara and her husband Kenneth, owners of World Wide Security put their first bid in response to a request for bids by the Town, back in March of this year. Originally they were told there were over 80 systems to monitor in about 40 or fifty buildings, but a complete list was not supplied until a week after the initial faxed request for bids was made, according to WWS. There was a “pre-bid meeting” according to WWS executives, attended by Mike Patejdl, the Director of Purchasing for Islip Town, Jeffrey Hausner, from Intellitec and Michael Catalano, the Chief Fire Marshal for Public Safety Enforcement for Islip. Also in attendance were WWS staff members Terri George, (who primarily handled the bid) Brian Macquade and Dave Young.
WWS staff and Intellitec were told the Town wanted to cut the cost of Fire and Security Alarm monitoring, currently handled by the Town.
At the time the town had just laid off approximately 39 workers. WWS and Intellitec were told the Town’s system was “in good condition”. The Town requested a10% bid bond (of the annual cost of the monitoring) and a one year performance bond at that meeting. WWS did present a certified check to cover both that day. Intellitec did not. When Intellitec did not give a check, Mr. Patedjl returned the check to Ms. George saying the bond check was no longer needed.
Mr. Hausner spoke to Freelance Investigations and claims this was not a requirement. “There was definitely not a bid bond required, because I called to check and they told me no. If you go through the document there is nothing there that says you need a bid bond -I could get one overnight if necessary. They only specified that the successful securities contractor provide a performance bond.”
Part of the specifications for the bid were that there would be no sub-contractors to be used and the company must have a NYC Fire approved Central Station which requires at least two persons manning monitors at all times 24/7 365 days a year. WWS executives claim their bid has that and that Intellitec does not.
Mr. Hausner, said this is not an issue as Intellitec has Rapid Response Monitoring, “ Rapid Response Monitoring is a NYC Fire approved Central Station", according to Mr. Hausner. "We admit Rapid Response is a subcontractor, but so is Vision Monitoring, another company under WWS.”
Ms. Mara claims it is not the same. “In our bid submittal we submitted the bid as WWS and Vision Monitoring together. They did not, with no mention of Rapid Response in Syracuse at the outset.”
Mr. Hausner countered, “Rapid Response was printed on the initial bid provided to the Town. The subcontracting had nothing to do with the monitoring and WWS was not a certified dealer and did not have the certifications for Bosch Radionics and Mirtone, which really was the issue.”
Mr. Hausner added 90% of the Towns’ equipment is Bosch.
WWS said Vision Monitoring is a certified Bosch dealer and supplied Freelance Investigations with their certificate as verification.
Mr. Hausner insisted this was the real issue, that WWS does not hold the certification, Vision Monitoring does.
*************************************************************************
WWS first Bid on 88 sites (55 Burglar Alarms and 33 Fire Alarms) was:
$2,261.60/ month for monitoring ($29,264.20/year)
Hourly rate: $100 for the first half hour; $50 for the next quarter hour for regular service.
Emergency service: $150 for the first half hour and $75 for the next quarter hour.
Central works 2000 computer support fee was $500/year
*************************************************************************
Intellitec bid: $2,518.65/month ($36,598.80) for monitoring
Hourly rate: $ 98.00 for the first half hour; $30 for the next quarter hour.
Central works 2000 computer support fee was one dollar.
Emergency service $150 for the first half hour; the next quarter hour $45 dollars.
******************************************************************************
Jeffrey Hausner told Freelance Investigations:
After the bid came out I did an analysis on the service calls that the town had done and I came up with based on these figures and the Town’s needs from January 1st to April 30th, WWS even with their less expensive monitoring combined with their Emergency services they would have been $12,000 more than Intellitec. For the year that translates to approximately $36,000 minus the $3,000 for the difference in monitoring fees, we would still have been about $33,000 less than WWS.WWS claims the $7,334.60 difference… made Intellitec the higher bidder.
WWS:
At the time WWS asked for an approximate total of service hours to base their hourly rate on, we were told by Mr. Patadjl to just give a single hourly rate. When the bids went in however, WWS was told the rate should have been based on approximately 750 hours of service. That according WWS made Intellitec, appear to be the lower bidder.After the bidding process ended, Ms. George called the Town and asked why they hadn’t been awarded the contract even though they were the lower bidder and was told about the hourly discrepancies and other issues were brought up as a reason to award the bid to Intellitec. Ms. George informed the Mara’s, owners of WWS/Vision Monitoring and Mr. Mara objected to the process.
Mr. Hausner claims on the first bid, based on the hourly rates, his bid would end up being lower. “They did not fulfill their certificate requirements. It is monitoring, plus an hourly rate there are two components. When combined our bid was lower.”
In May, the Vice President of Intellitec, Jeff Hausner, a Nassau County resident, made a $250 contribution to the Friends of Phil Nolan. Hausner admitted he made the contribution at a cocktail party and said he grew up in Ronkonkoma and as such had lived in Islip Town, so it was not unusual for him to contribute.
In June the Town of Islip announced they had decided to rebid the job again.
Before the second bid, the Town Attorney’s office called WWS to set up a meeting with Mr. Catalano, (Fire Commissioner) and Mr. Lawrence (Larry) O’Leary, the Public Safety Commissioner for Islip and head of Code Enforcement for the Town, for the next day. With little notice, the owner and president of WWS, Kenneth Mara, the bids’ administrative project manager’ Terri George and two others from WWS drove to Islip from Garden City, where their firm is located, and said they were told when they were five minutes away that the Security Commissioner (O’Leary) could not attend and the meeting had been canceled.
Mr. Hausner said he was not privy to this meeting.
THE SECOND BID...
The Town told Ms. George (WWS) that they had decided to re-bid the project (in June).
The second set of bids were:
**********************************************************************
World Wide Security: $81,180.70 $2513.00/monthly monitoring fee
$50/for the first half hour $25 for the next quarter hour
$500 went to zero on the support fee
Emergency Service to $55/hour and $27.50 for a quarter hour.
**********************************************************************
Intellitec: $118,866.80 $2179.80/monthly monitoring fee
$98/for the first half hour; $30/next quarter hour.
Support Fee: $1 dollar
Emergency Service Fee: $155/hour $45/next quarter hour
**********************************************************************
After the numbers for the second bid were in, Mr. Hausner questioned how WWS could pay their people with these numbers. “I kept my prices the same except the monitoring which I dropped and I only raised the Emergency Service fee five dollars so I wouldn’t lose money on an emergency call.”
Ms. Mara, Vice President of WWS, responded, “How we pay our people should be of no concern to Mr. Hausner.” At the Town Board meeting Ms. Mara indicated that her company is required by law to pay prevailing wage of $35 to $65/hour, that her contract bid was for $100/hour and that currently Intellitec was getting $200/hour from the Town of Islip for the service they have provided since 2006.
Mr. Hausner also noted, “I’ve lost hundreds of bids because I was not certified in a particular product as a dealer. This is the normal course of business. WWS was not certified in Bosch period.” said Hausner, something WWS denies.
According to the specs, WWS or Intellitec would be required to handle over 88 systems including Bosch, which was also required by the Town in their specs, even though it’s like requiring the antiquated DOS system for your computer, according to Ms. George of WWS.
Mr. Hausner disagreed, calling the Bosch technology different, but complex and since according to him at least 90% of the Town’s ageing equipment is Bosch, Mr. Hausner agreed it was necessary to be Bosch certified, which he again claimed WWS is not.
A letter from Bosch Security Systems, dated March 26, 2010 Re: Certification-Bosch Security Systems Authorized Dealer stated that Vision Monitoring of Garden City is a certified Bosch dealer in: Intrusion Systems, Fire Systems and CCTV Systems.
Mr. Hausner again insisted, "WWS does not have the certification-Vision Monitoring does."
Mr. Hausner again insisted, "WWS does not have the certification-Vision Monitoring does."
Forced to give an hourly rate, WWS came in at $100/hour compared to Intellitec’s $196/hour.
However, Mr. Hausner claims when you add up the numbers, Intellitec's actual hourly rate comes down to $158/hour and when other variables are factored in, according to him, it is really less expensive. WWS disagrees with that assessment insisting they have been the lower bid both times.
No winning bid was chosen again.
Calling WWS’s bid “non-responsive” Alicia O’Connor, the Islip Town Attorney, spoke to WWS the next day. WWS said Ms. O’Connor told them they were not awarded the bid because they did not meet all the requirements. WWS insisted they had a Central Station on their premises and that Intellitec did not and invited her to take a ride to Garden City so they could show her their Central Station on their facility that very day. Ms. O’Connor declined saying “We’re not required to do that.” In the phone conversation Ms. O’Connor was claiming the process was now “too confused”, according to Ms. Mara V.P. of WWS, a claim Ms. Mara reiterated at the September Town Board meeting saying "These were your bid specs and the Town of Islip is now paying $40,000 dollars more a year because you're confused?"
Ms. O'Connor responded at that meeting, "I didn't say the Town was confused, I said there were some mistakes in the bidding process, which we have reviewed." adding that it was in the "Town's best interest and in compliance with the law" to rebid a third time.
After the second bid, Mike Patdjl told WWS that Ms. O'Connor told him to tell WWS they were not getting the bid because they didn’t submit a certificate of insurance, according to Ms. George. This despite the fact that it was clearly stated in the bid papers that only the successful bidder needed to submit their certificate of insurance, so therefore, not until a bid has been awarded would it be required, according WWS. Even Mr. Hausner agreed in our phone interview that WWS didn’t need one. Mr. Hausner said he had included it in his package anyway, because it is a simple form, "documenting my ability to obtain insurance." Ms. O'Connor's office declined to answer the question about the insurance requirement or any others regarding the bidding process sent to her office by Freelance Investigations.
At a Town Board meeting in August, Ms. George, from WWS asked the Board for a private meeting to discuss the issue and the Board agreed. The next morning, according to Ms. George, without ever having confirmed a date or time for the meeting at 11:30 AM the Town Attorney’s office called her and said her firm missed the meeting that they said was supposedly scheduled for 11:00 AM. Another meeting was hastily scheduled for 1:30 that afternoon attended by; a different fire marshal, Larry O’Leary, Alicia O’Connor, her legal assistant and members of the WWS team.
The Town was informed by WWS that the Towns’ own bid specs were to include a N.Y. City Fire approved Central Station, which WWS says they do have and that Intellitec does not. Intellitec was planning to use Rapid Response Monitoring System in Syracuse, as their Central Station. WWS believe this violates the provision of no subcontracting, because even though the owner of Rapid Response also owns a piece of Intellitec and does business with them, it is still considered a separate company and as such is considered a subcontractor.
WWS claims Vision monitoring is not a subcontractor, it is a company wholly owned by WWS, the same owners.
Mr. Hausner says his part ownership of a small piece of Rapid Response is the same as WWS owning Vision Monitoring, which he claims is also technically a separate company and as such is also a sub-contractor.
WWS owner Pat Mara spoke with Freelance Investigations recently about the myriad of problems with the bidding process itself. Ms. Mara claims that some of the specs required by the Town made no sense. For example, the Town required the company to be S.I.A. certified. This course is not even given any longer. They also required the use of a Mirtone Dealer (made by G.E.) as a necessary “proprietary” supplier, despite the fact that it is not a proprietary dealer as G.E. sells Mirtone Vigilante to another company, according to Ms. Mara.
Mr. Hausner said Intellitec has $40,000 dollars worth of Mirtone parts available 24/7 in an emergency. "Intellitec can provide them at a moments notice. WWS would have to acquire these parts third hand and on a weekend in an emergency, that would be difficult if not impossible to accomplish."
In a letter to Islip Town Councilman Steven J. Flotteran (Rep,) WWS Vice President, Pat Mara discussed the concerns she had with the bidding process with the Town of Islip.
“We are a strong company who are reputable and work for some of the largest organizations in the world. I followed the bid specifications to the letter.” Ms. Mara wrote.
Ms. Mara offered to replace the Mirtone Alarm equipment that is in two Town Hall Buildings free of charge if they could not repair or replace it and that they would guarantee they would use brand new Honeywell Equipment, (the world’s largest supplier of fire and security equipment). Ms. Mara cc’d the letter to the members of the Town Board, inviting Phil Nolan, the Town Supervisor and the rest of the Board to visit their facility and see for themselves, that they do have a NYC Fire Department approved Central Station. Ms. Mara said no one took her up on the offer.
WWS provided the documentation to Freelance Investigations to support their claims and gave Freelance Investigations a tour of their facility in Garden City, including their on premise Central Station, which contained state of the art modern technology and was manned by two employees at the time.
Mr Hausner sent Freelance Investigations a link to a virtual tour of Rapid Response, their state of the art, Central Station Monitoring facility located in Syracuse, New York.
American Securities Technologies Inc. D/B/A WWS does business with a wide range of clients including the government, West Islip School District, the Town of Hempstead, Nassau County and NYC Department of HRA at over forty locations.
Mr. Hausner declined to name any of his clients stating, "We are in the security business and the last thing I would do is reveal a client due to security concerns."
On September 23, 2010 Patricia Mara sent a letter to Islip Town Attorney, Ms. O’Connor requesting a definitive answer on the second set of bids.
At the last board meeting a number of issues were addressed regarding the use of sub-contractor and licensing. I am sure you have been able to verify that Intellitec does not operate a central station at their location, which was a requirement of the bid specifications. You should also have been able to confirm that Intellitec was going to be using Rapid Response as a “sub-contractor” for the central station monitoring, which is in violation of the bid specifications. Intellitec is not certified as a NYC Central Station Signaling Company, which would make Intellitec “non-responsive” to the bid.Mr. Hausner insisted, "Nowhere in the request for proposals does it state that the bidder must operate the Central Station at their location." adding "We provided the name and address of Rapid Response in the initial bid papers as well."
The letter was sent in advance of the recent September 28th Town Board meeting where Ms. O’Connor admitted on the record that the Town had made mistakes in the specifications and the process itself was flawed for the second time, though she declined to specify what the mistakes were.
After the second bid went out, we found there were some mistakes, not only in some of the bid specifications, but in the actual document we had prepared. There was some information not put into the bid documentation that would specifically go into a maintenance/service contract and they were not there. So we need to do it again we need to re-draft the specifications. (Ms. O'Connor/ September 28, 2010)
No one disputes the quality or the credentials of either company. Mr. Nolan admitted for the record at the September meeting that both sides have "great expertise" and he insisted "This is an important contract that we are looking at in totality."
THE THIRD BID…
The Mara’s and their employees say they have invested so much time and energy into this bidding process so far it is really a question as to whether it is even worth it to re-bid. Ms George called the process "unjust" and "it is nothing like I've ever seen before." at the Town Board meeting, adding her company put in over 200 hours of time and energy on the bidding process so far. According to them, the anomalies of the process itself need to be exposed.
Mr. Nolan responded, "We've given it an even handed negotiation, what more do you want?"
Terry George also asked at the September 28th meeting why Mr. O’Leary and the Fire Commissioner were at these meetings and not just the purchasing agent as is her experience in the 27 years she has been working creating bids in the industry. Mr. Hausner said their presence at the meetings was "not out of the ordinary". Ms. George asked of the Board, "I'd like to know what's missing and what errors you found. I'm concerned because normally the other bidders try to get the lowest bid thrown out."
Ms. George also charged the Town is purposely trying to throw out WWS even though they are the lowest. "Intellitec doesn't have to say a word, because the Town Board members are doing the work for them."
Mr. Nolan insisted that "We're just trying to get the best outcome." Saying "I'm not thrilled with bidding something three times...but if an error is correctable, then we should do it. It's a simple as that."
No one knows when the next bid will be or if they will re-bid, according to owners of WWS and Intellitec.
“We may not even be invited to the next bid, if we are, we will bid unless the new bid specs are clearly aimed at Intellitec. If it is not clearly looking for the lower bid then we won’t waste our employees’ time.” according to Ms. Mara.
Mr Hausner declined to say if Intellitec will bid again as no date for the third bid has been set.
Freelance Investigations called Ms. O’Connor with a list of questions regarding the bidding process itself and a time frame for the third bidding invitations to go out. Calls to Ms. O’Connor were handled by Amy Basta, the Director of Public Information for Islip Town, who sent this E-Mail response from Ms. O’Connor.
Hi, Amy, I won’t be able to respond to the questions since we have not yet issued the advertisement for the third bid and any information out there could impact prospective bidders’ numbers and proposals. The writer is free, however, to submit a FOIL request to review the documentation the Town has on file. Thanks, Alicia.At the September meeting Ms. O'Connor apologized to Ms. Mara and Ms. George stating:
We have cancelled the bid, we are now working on new specifications and putting in the required information, for a maintenance, servicing and monitoring contract. I can assure you that it was not our intent to have a long arduous process, but the fact of the matter is, there were some mistakes, it went out and we caught the errors and now we are addressing it.
Admitting, "Some of the errors were discovered after the second bid" Ms. O'Connor added when questioned by Ms. George, that the Town would again be drawing up the specifications for the third bid "in house".
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