August 6, 2015

Follow Progress For Westhampton Beach

By:  Progress for Westhampton Beach

At the August meeting for the Board of Trustees there were mostly routine matters on the agenda.  Two matters of significance were addressed.

Master Plan

The update of the master plan is now under way.  This has been in the works for months and at times was stalled.  Now, there will be a review of the master plan by a committee of village residents with services provided by Nelson, Pope and Vorhiss, LLC.  Such periodic reviews are essential to ensure that the best laid plans made years ago for our village remain appropriate, and that implementation of that plan has the best chance for success.  In conjunction with this review a Business District Task Force was created; the Mayor appointed and the Board confirmed: Joe Musnicki, Susan Rosenberg, David Fox, Jackie Bennett, Robert Busking, Paul Montagna, Dee Perfido, Jim Badzik and Jean Marie Braat to serve. The Board left open the possibility for other interested individuals to be appointed as well.

The second matter of particular interest was a public hearing on a change in the village code.

The Change in the Village Code

Many in the Village of Westhampton Beach, as in other communities, are concerned that local businesses that are part of village’s unique appeal are in constant competition with the cookie cutter chain stores that enjoy economic advantages of scale.

There is no legal way to prohibit a business based upon it  being part of a national chain.  Still, many communities try.  Local government is permitted to use laws to protect the health, safety, and welfare of its residents and many municipalities turn to zoning laws to attempt to indirectly regulate national chain stores.

It appears that in 1993 our village may have attempted to address the challenge from national chain stores through its definition of Fast Food Restaurants which are prohibited in the village.  The village code defines any restaurant having more than one cash register as a prohibited Fast Food Restaurant, the 1 register law.

It does not take an undercover investigation to see that there are several local restaurants in the village that use more than one register.  The 1 register law must be enforced uniformly without discrimination.1)this should not be understood as a criticism of code enforcement, it was acting reasonably, as does highway patrol that does not ticket people on the expressway at speeds under 70 mph when the limit is 55 mph.  The 1 register law that was not working as well as originally intended has been adjusted with important recommendations from the Building Department.  Our choice was to keep the  1 register law  and enforce it against all restaurants, OR change this code provision. If we kept this code provision the law of unintended consequences would kick in….


National chains have developed what amount to handheld cash registers — applications in smart phones that allow for both ordering and payment.  The village 1 register law actually places local merchants with a single cash register at a competitive disadvantage.

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Changing our village law so it does not disadvantage local merchants is a good start.  However, the advantages of scale for national chains will remain.  Local merchants need to accentuate their own advantages — their deep roots and broader commitment to the village and its residents.

Perhaps the Chamber of  Commerce can blunt some of the advantages of national scale.  Fluid Imagery can probably produce a “Westhampton App” for the Chamber where local merchants can have one web location that provides a smartphone cash register that covers all Chamber Members.  Some local merchants might even choose to have a loyalty program to recognize year-round customers, or inversely Uber style surge pricing. 

Implementing the advantages of technology isn’t always easy, but working  through the bugs can be the difference between successfully competing in the long term, or being a fond memory in a Westhampton Beach Historical Society exhibit…   but that is for each of our local business owners to think about, it’s their risk and their reward.

The public hearing was held, with very little public input having being made and the amendment to the law was unanimously adopted.

Public Comment

Arnold Sheiffer came to the meeting to express his concern about the federal litigation involving the eruv.  Mr. Sheiffer is a principal organizer and chairman of JPOE.  Mr. Sheiffer is understandably frustrated by the course of the federal litigation.

Last year the Second Circuit Court of Appeals determined that JPOE could not intervene in the federal action.  JPOE has opposed the establishment of an eruv in the village and opposes the associated attachments to utility poles.  The federal district court judge said in effect “no intervention for JPOE, the village is already litigating the Establishment Clause claim that you want to fight, rely on the village.”  JPOE appealed to the 2nd Circuit which affirmed the district court and went even further when it said there was no Establishment Clause violation by the attachments to the utility poles.  That was the appellate equivalent of saying   ” … and the horse you rode in on.”

Mr. Sheiffer’s concern is reasonable, how can the village trustees be called upon to represent his personal interests and those of JPOE while also representing the village’s interests?    The alignment of interests, while substantial, is imperfect.  Unfortunately for JPOE the 2nd Circuit is the end of the line, unless JPOE petitions for a writ of certiorari from the U.S. Supreme Court.

Jack O’Dwyer tonight made a repeat appearance before the Board of Trustees to express his dismay with the federal judiciary on this issue which he contends has resulted in political decisions by the court, not constitutionally sound determinations.

It seems Mr. O’Dwyer would like to perform an exorcism on some jurists as their determinations appear to him possessed by things other than considerations constitutional.

Even with strong urging from the village attorney, Mr. O’Dwyer, persisted in his demand to make inquiries of the Board of Trustees about the pending litigation.  Mr. O’Dwyer’s sentiment  on this point is right in theory, but not in practice.

The Mayor explained that in theory, the Board of Trustees should be able to discuss publicly all matters of importance to the community. However, in practice, when it comes to litigation such public comments by elected officials too often end up being cited in the legal proceedings.  Then counsel for the village has to spend a great deal of time and energy putting such comments into proper context. Just look at the complaints filed in federal court and you will find that it is the stray remarks of not only officials but of members of the community that constitute the body of the federal case, not any actions taken or threatened by the Board of Trustees.

The Mayor did give a brief synopsis of the current status of the litigation for those who remained in attendance.2)for all others there is always the video.

The public comment period was concluded and the Board of Trustees then made a motion to enter executive session to discuss personnel matters.

By:  Progress for Westhampton Beach


References   [ + ]

1. this should not be understood as a criticism of code enforcement, it was acting reasonably, as does highway patrol that does not ticket people on the expressway at speeds under 70 mph when the limit is 55 mph.  The 1 register law that was not working as well as originally intended has been adjusted with important recommendations from the Building Department.
2. for all others there is always the video.

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