Following is an explanation written, as promised, by Trustee Darby explaining his February 21 votes on two matters: his vote to not uphold the stop-work order issued by Mayor McFadden to the Tuxedo Club and his vote against Mayor McFadden’s proposal to rescind the permit issued to the Tuxedo Club in 2005.
My Votes on the Tuxedo Club Docks
At the February 21, 2007, Board of Trustees meeting, the Trustees were asked to vote on a stop-work order issued by Mayor McFadden on February 16 to prevent the Tuxedo Club from putting back in the water so-called Seasonal Docks 2 and 3. I voted against the stop-work order. I would like to take this opportunity to explain why. The bottom line is that, in my view, Mayor McFadden did not present any real evidence demonstrating that these docks violated the Village Code. These docks have been on the Tuxedo Lake for about 10-15 years. To claim now that these docks violated the Village Code seems to me to require clear and convincing evidence, which was not presented, and without it the stop-work cannot be upheld.
I also voted not to rescind a Board of Trustees resolution from May 18, 2005, which approved the issuance to the Tuxedo Club of a permit to construct certain additional docks. These docks have not yet been completed or installed on the lake. The bottom line here is that again there isn’t sufficient evidence demonstrating that the issuance of this permit violated the Village Code. Furthermore, the Village has already received in 2005 an opinion of the Village Attorney James Sweeney advising it would be a legal mistake to rescind the resolution and could expose the Village to significant risk of liability. New Village Attorney Roemer has prepared a lengthy memorandum in which he disagrees with Sweeney. In the absence of an obvious factual error by Sweeney, I am not prepared to disregard Sweeney’s advice.
The Stop-Work Order
On February 16, Mayor McFadden issued a stop-work order to the Tuxedo Club requiring it to immediately cease all activity relating to the existence, siting, etc. of so-called Seasonal Docks 2 and 3 owned by the Tuxedo Club. The stop-work order claimed that both docks violated Section 65-6(I) of the Village Code. Section 65-6(I) provides in relevant part that:
“The Tuxedo Club is restricted from expanding its dock and mooring facilities beyond the number in existence on September 19, 1991.”
Mayor McFadden claimed that Seasonal Docks 2 and 3 violated this restriction.
As I said at the BOT meeting, it seems obvious to me that to determine whether the stop-work order should be upheld because Section 65-6(I) is violated, there has to be evidence that the number of the Tuxedo Club’s docking and mooring facilities in existence today is greater than the number in existence on September 19, 1991. The only evidence Mayor McFadden put forward is the December 15, 2006, memorandum prepared by Village Attorney Roemer. I have studied that document carefully and I do not find anywhere in it where he makes the simple calculation Section 65-6(I) requires.
On the contrary, I find the memorandum confused on the very point in issue. The memorandum does attempt to calculate the number of boats the Tuxedo Club had in September 1991, but that is not the calculation required by Section 65-6(I). Attorney Roemer states in paragraph 7 of his findings of fact that “It is without dispute that the Village Code limits the number of boats that the Village may have to the number that existed on September 19, 1991.” (emphasis added) I believe this statement is simply wrong. What is limited is not boats but “docking and mooring facilities.” While another part of Section 65-6(I) does limit the number of boats an owner may have on Tuxedo Lake, the Tuxedo Club is expressly excepted from this limitation.
Attorney Roemer also attempts to calculate the square footage of docks the Club had in September 1991 and to compare it to square footage today. I find this calculation irrelevant. Nowhere does Section 65-6(I) mention square footage. It deals with the “number” of “docking and mooring facilities”. In any case, I do not see how one could calculate the square footage of a mooring facility.
At the BOT meeting, Trustee Hansen seems to have argued, if I understand him correctly, that it doesn’t make any difference how many of these facilities there were in September 1991 if two have been added since then. But that ignores the fact that the Tuxedo Club has removed docks. Pursuant to an understanding reached in connection with its May 2005 application for additional docks, the Tuxedo Club has removed two cement docks, one in front of the Club, the other in front of the Tennis House. I believe it is undisputed that these docks were in existence in September 1991. 2-2=0.
Then there is the matter of the 44’x15’ dock listed in the Club’s 1992 registration of temporary floating docks. Roemer concludes in his finding of fact no. 6 that this dock must be listed in error because a reasonable person would conclude that its existence is unlikely. I am not sure I understand why that would be true, and I note that two people, a Trustee and a Village employee, signed the dock registration on which this dock is listed. But whether a mistake was made in listing this dock seems to me to be unimportant. Some sort of dock was listed and it evidently isn’t there now – i.e. subtract one dock.
Beyond the docks there is the issue of “mooring facilities.” From his comments last Wednesday, I take it Trustee Hansen believes they are to be calculated separately from docking facilities and that the Tuxedo Club is subject to two separate restrictions – one on docking facilities and the other on mooring facilities. With due respect, I believe the plain language of Section 65-6(I) creates an aggregate class of “docking and mooring facilities” and the number of these must be calculated. It may not make a lot of sense, but the language of Section 65-6(I) does not seem to me susceptible of any other interpretation. Mooring facilities are relevant also because the Club has claimed that because there are fewer sailboats today it has reduced the number of mooring facilities from what it had in 1991, although it does not say by how many.
In summary, I see no evidence the Club has a greater number of docking and mooring facilities today than the number it had on September 19, 1991.
Lastly, one has to ask oneself whether it makes sense to tell the Tuxedo Club now that it has to remove docks it has been using openly for 10-15 years. Until very recently, it appears no one claimed that they violated the Village Code. At the BOT meeting, I asked Attorney Roemer whether he thought that the Village might be “estopped” from claiming after so many years that the docks were illegal. Another similar issue is that the Tuxedo Club might claim that “laches” or long-standing inaction might prevent the Village from claiming the docks are illegal. Roemer said that he did not believe there was any “estoppel”, but he did not provide any legal analysis for reaching this conclusion nor did his memorandum consider the issue even though common sense would seem to lead one to question whether, as a matter of fairness and equity, it is now too late for the Village to tell the Tuxedo Club to take out these docks. I don’t know that it would, but I would not wish to see the Tuxedo Club’s junior sailing program collapse this summer because Village children could not find docking space for their sailboats or canoes.
May 2005 Resolution of BOT
I am not going to deal with the rescission issue to the same extent as my discussion of the stop-work order as I do not think even the most learned dock law aficionados would wish to follow the peregrinations of a detailed “rescission analysis” as to whether the BOT should rescind the May 2005 resolution approving a permit for the Tuxedo Club to build some additional docks, and I am not going to discuss all the legal issues such an action would raise. The basic point is, however, pretty much the same. Mayor McFadden didn’t produce the kind of clear and convincing evidence I believe is necessary to ask the current Board of Trustees to pass a resolution rescinding the action of a prior Board of Trustees almost two years ago.
Once again, the only “evidence” produced by the Mayor that might be said to support a rescission of the May 2005 resolution is the Roemer memorandum. However, after having read this document carefully, I cannot find any place where it unequivocally concludes that the May 18, 2005, resolution was illegal or invalid. The conclusion it seems to wish to reach, although this is itself very unclear, is that if the Tuxedo Club uses the May 18, 2005, resolution as a basis to install additional docks, it must nevertheless comply with Section 65-6 by removing docking facilities if the number would otherwise exceed the number in existence on September 19, 1991. It is beyond dispute that the Tuxedo Club must comply with Section 65-6(I) of the Village Code, but nothing in the May 18, 2005, resolution leads to the inevitable conclusion that this provision is going to be violated in the future. As I said at the BOT meeting, at the time the Tuxedo Club goes to put in the additional docks we will have to see whether Section 65-6(I) would be violated. No inference should be drawn from the Board of Trustees vote last Wednesday as to whether such additional docks would be in compliance with the Village Code if and when the issue is presented in the future.
Finally, my voting not to overturn the May 18, 2005, resolution is also based on the advice of former Village Attorney James G. Sweeney. Attorney Sweeney was asked to consider the legality of the May 18, 2005, resolution. He issued an opinion dated November 15, 2005, which strongly advised against rescinding the resolution. To quote Attorney Sweeney:
“In my opinion, it would be a distinct legal mistake to rescind the May 18 permission. The Tuxedo Club has moved ahead in reliance on the Trustees actions of May 18 and there is no ostensible reason at hand for the current Board to undo that permission at this time….To revoke the permission under these circumstances would cause harm to the Tuxedo Club who, as I said, has acted in reliance on that permission. If the current Board were to act and revoke the permission I feel that would open itself up to a claim for damages by the Tuxedo Club as well as an Article 78 proceeding in the nature of a writ of mandamus to review and restore the permission.”
This is very clear advice from an attorney who represented the Village for many years. I am not prepared to disregard it.
Everyone who has studied them agrees that the Village dock laws are badly drafted and require determinations of factual circumstances in existence decades ago. They should be revised and clarified in a new Village law. The lakes are the Village’s most precious resources. We must preserve their crystalline beauty while seeking to accommodate legitimate interests of the community in their use. I would like to see a dialogue among ourselves as to how to do this that is worthy of the lakes themselves.
Lawrence A. Darby, III
February 26, 2007
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