Conflict of interest? Zoning commission requires full disclosure
“I don’t feel like I have to defend myself,” Joe Fossi said.
Fossi, vice chairman of the Planning and Zoning Commission and Inland Wetlands Board for more than a decade, was addressing a conflict-of-interest issue that came up in relation to an application before the commission for a development project at 800 Ethan Allen Highway — a wooded three-acre site off Route 7, a little south of its intersection with Route 35 and across from Little Pond.
A builder by profession, Fossi is a co-owner of the property. A contract-purchaser of 800 Ethan Allen Highway put the property before the commission that Fossi sits on, seeking approval of plans to develop a self-storage facility there.
Fossi hasn’t participated in the proceedings — he didn’t attend the July 9 meeting, the first night of a public hearing on the property, and left the meeting when the hearing resumed July 30. The hearing was continued again to Sept. 10.
“I recused myself when the application was submitted, and said I had a conflict of interest. So I didn’t go to the meeting,” Fossi said of the July 9 hearing.
He left the July 30 meeting when the 800 Ethan Allen Highway project came up. He returned later after receiving a phone call from the chairwoman, Rebecca Mucchetti, participating in the meeting’s remaining agenda items.
Still, the situation has earned Fossi criticism on social media.
Business involvements don’t often present a conflict with the commission’s decision-making responsibilities, Fossi told the Press, but whenever they do he recuses himself from all discussions and voting.
His profession is no secret, he added.
“Go on the Democratic Town Committee website. It says I’m the owner of Pelham Homes,” Fossi said. “When I ran for Planning and Zoning and the Inland Wetlands Board, I stated my profession as a builder.”
Commission member Charles Robbins also recused himself from the 800 Ethan Allen Highway hearings — he’s a neighbor, living in the Regency at Ridgefield townhouses.
“I’m recused. I can’t have input,” Robbins said.
“The application and project ... had a direct impact on the residents of the Regency during the first iteration of the plan (contractor’s yard), and the subsequent plan (storage facility). As such, my residency at the Regency could prejudice my opinion of the project, its design, environmental impact, etc., during the hearings. Therefore, the commission and I felt it was necessary to recuse myself from all hearings,” Robbins said. “Involvement with this or any other project whereby a commission member is indirectly or directly associated with an application is not appropriate and signals a conflict of interest.”
Both Fossi and Robbins will be excluded from all discussions and voting on the proposal — that’s the way recusals work.
That Fossi, with a business involvement, and Robbins, as a neighbor, were both recused on the application exemplifies how public officials are expected to keep themselves out of matters where they have potential conflicts of interest.
Chairwoman Mucchetti addressed the issues in her “welcome comments” outlining the situation with the application at the start of the July 30 meeting.
“Once again, we feel compelled to correct misinformation that has been posted on social media on matters before the Inland Wetlands Board and the Planning and Zoning Commission,” Mucchetti said.
“It came to our attention after the public hearing on July 9 for 800 Ethan Allen Highway, that the physical location of the property was asserted to be at the intersection of Route 7 and Haviland Road, across from the Golf Performance Center on a residential parcel at the corner of Route 7 and Great Pond Road. That is not correct.
“In fact, the property is a half-mile north, in a commercial corridor of B-2 property that runs from Haviland Road to the Danbury town line on both sides of Route 7; north of the medical center at 901 Ethan Allen Highway, south of John’s Best Pizza, next to Design Builders, on a legal building lot zoned for B-2 commercial use. Storage facility is a permitted use in the B-2 zone.
“The state and the Town anticipate the possibility of personal and professional conflicts of interest in a government made up of citizen volunteers,” Mucchetti said. “In conformance with the state, Ridgefield’s Town Charter, Article XI (Standards of Conduct), Section 11-5 (Conflicts of Interest), states, and I quote: ‘Officials and employees may have occupations, professions, businesses, or have financial or personal interests, that relate to or interface with Town operation and government. It is expected that officials and employees will be acutely sensitive to possible conflict of interest issues, and that they will conduct themselves in a manner that will avoid any conflicts of interest.’
“Accordingly, the Charter requires that ‘An official or employee who has any financial or other personal interest in any official action under consideration shall either: (1) Disqualify himself or herself from participating in the deliberation and decision-making thereupon; or (2) Disclose on the record the nature and extent of such interest and seek a ruling as follows: The governing Town official, board or commission involved shall then rule or vote on the official’s or employee’s right to: (a) Participate in discussion of the issue; (b) Right to vote on the issue.’
Mucchetti then said, “Two of the nine members of the Inland Wetlands Board/Planning and Zoning Commission are recused on this application — Joe Fossi and Charles Robbins. The property at 800 Ethan Allen Highway is owned by BBD, LLC. Mr. Fossi submitted a letter as part of the application, identifying himself as a member of BBD, LLC. Mr. Robbins owns and lives in a home in the Regency. The president of the Condominium Association has submitted a letter of agreement between the Regency and the applicant, Saber Capital Management, LLC. Both documents are part of the record and available for public viewing at the P&Z department office between the hours of 8 a.m. to 4 p.m., Monday through Friday.
“In keeping with Town Charter, Mr. Fossi and Mr. Robbins disqualified (recused) themselves, stating their reasons for doing so on the record, at the May 14 meeting when the applications were received. They have had no participation in the deliberation or decision-making on the proposed activities at 800 Ethan Allen Hwy. Their recusals are being restated tonight for the record.
“One final note, Mr. Fossi is not the applicant for the proposed self-storage facility,” Mucchetti said. “Saber Management, LLC is the applicant and Attorney Jewell is the authorized agent to represent Saber Management.”
As Mucchetti said, the town charter addresses conflicts of interest — understanding that officials may sometimes have them, and need to recuse themselves.
With the high monetary value of what it regulates — land and buildings in Ridgefield — being careful about conflicts of interest has a significance for the Planning and Zoning Commission that it may not for some other town agencies. Nearly all Board of Education members have kids in Ridgefield schools. Everyone on the Board of Finance pays taxes. Planning and Zoning is trickier — people own property, live in neighborhoods, they have business connections, friends who have properties near development sites.
Sure, a commissioner should stand down from proceedings on a property across the street from his home. What if it’s a mile down the road? Or the applicant used to be his kid’s soccer coach?
‘Treat them fairly’
“I think if you can’t be fair, straight down the line, you should recuse yourself,” said George Hanlon, a Planning and Zoning Commission member who works in real estate.
While residential real estate is most of his business today, Hanlon said that before joining the Planning and Zoning Commission eight or nine years ago he did do some building in town.
“I used to,” he told The Press in a recent interview. “I did Palmer Court down behind Stonehenge, and Arrowhead Place off of Ramapoo, and one up on West Lane, and I stopped building in 2008.”
Recusals for conflict of interest are generally seen as protecting the public against insider dealing, but Hanlon said they also protect applicants who come before town agencies.
“I think most people just say if you have a business relationship you should recuse yourself,” Hanlon said. “But if you can’t be fair and treat them fairly, you should recuse yourself, shouldn’t you?”
Hanlon said he has had occasion to recuse himself as a commission member from applications by builders that he’d worked with back when he was with U.S. Insulation, and also from applications by people who are friends.
“The problem is, you can’t recuse yourself from everything,” Hanlon said. “... I know a lot of people.”
He offered examples.
“What happens if I go to a restaurant all the time and they want to put on an addition? I’ve got to recuse myself because I’m a customer? Where does it end?” he said.
“Ridgefield Supply — I’ve been buying stuff from them for years. They came before us.”
Did he recuse himself?
“I didn’t,” he said.
Too frequently recused
The problem of having business relationships, and too frequently needing to recuse himself, was the reason Bob Cascella resigned from the commission earlier this year.
“I stepped down,” Cascella said. “... It is what I do for a living, commercial real estate.
“I just felt every other thing that was put in front of us I had to recuse myself because I had some kind of monetary or financial stake in it...
“Probably 70 percent of my business is in town,” he added. “So I felt being on a land-use board was not the place for me.”
Cascella said he works in real estate, not land development.
“No, not in a long, long time,” he said. “I strictly do brokerage, sales, leasing, that kind of stuff. I may sell somebody a piece of land and they build a business on it, but I don’t do the building.”
Still, he found that too often he was having to stand down.
“It was multiple items on our agenda,” Cascella told The Press. “Every week there was at least one thing I couldn’t vote on… None of them major things. Often what P&Z hears is the signs, and little things that aren’t going to hurt anyone one way or the other.”
As a hypothetical example, Cascella pointed to Urstadt Biddle, a landlord owning property on the east side of Main Street and on Bailey Avenue. Commercial signs are regularly reviewed by the commission, which has rules concerning the number and size of business signs.
“Someone who’s going to lease from Urstadt Biddle wants a sign. I do a ton for work for Urstadt Biddle. Is that going to influence a vote for a sign? Of course not,” Cascella said. “...It’s still business, and you’ve got to be careful.”
While his active real estate career too often required recusals, Cascella didn’t see problems with commission members occasionally stepping back from proceedings due to potential conflicts.
“It’s a small town board,” Cascella said. “Members may need to recuse themselves.”
Route 7 property
Fossi explained his handling of conflict of interest at the Planning and Zoning Commission’s public hearings session on 800 Ethan Allen Highway, owned by BBD LLC.
The 800 Ethan Allen Highway property had previously been before the commission when owned by Larry Leary, who after a series of often contentious public hearings over several years got plans for a “contractor’s’ yard” approved for the site.
Now the property — owned by Fossi, through BBD LLC — is the subject of another development application, by a contract purchaser, Saber Management LLC, seeking a self-storage facility on the site. Saber Management LLC was represented at the hearings by Chuck Saber, its principal, and by attorney Bob Jewell of Donnelly, Gustafson and McNamara, as well as engineers and technical consultants.
In a phone interview, Fossi said he’d recused himself from all meetings and hearings concerning the property — dating back to the contractor’s yard application by Larry Leary. Fossi said he’d previously worked with Leary and thought he might work on the contractor’s yard project.
“Larry Leary owned the property and he came to myself and my excavator,” Fossi said.
“...Larry approached us years ago about helping him build this contractor’s yard. He applied for a zoning permit, a special permit for the contractor’s yard. It went on for years. Appeals were taken. Finally, it was approved.
“By that time Larry personally lost interest in the project. It had been going for four or five years. He’s living down in the Carolinas now, and had no interest in doing it any more. So he sold the property to us in August of last year...
“We paid, I believe, $225,000,” he said. “We also had $200,000 in legal expenses and engineering expenses.”
That’s because eventually, with the understanding they’d be purchasing the property, Fossi said he and his partner began carrying some of the application’s legal and engineering costs.
Fossi said he stayed completely out the proceedings — that’s what the situation required, and that’s what he did.
“The whole time the application was in front of the zoning commission, I always recused myself,” Fossi said.
Potential conflicts of interest — even if only implied, or looming in the background — can raise the temperature at commission meetings.
Consider this exchange at the first public hearing session on the 800 Ethan Allen Highway project, involving Tom Lincoln, a Haviland Road resident concerned about the proposal, Chairwoman Mucchetti, and attorney Jewell.
After lengthy presentations by Jewell and the applicant’s engineers on July 9, Mucchetti opened the hearing for public comment, with Lincoln rising to speak.
Lincoln: “I’d like the owner of the property to state his name and address, and also if there are any other parties and (that) are in this investment, this project. You asked the same of me, I’d like to ask the same of you.”
Mucchetti: “Mr. Jewell?”
Jewell: “We’re not doing that. The applicant’s address is in the application.”
Mucchetti: “And we do have it as a file — in the file we have Mr. Saber as the applicant and the contract purchaser.”
Lincoln: “Is he the only principal of Saber LLC?”
Mucchetti: “I don’t know, sir, and it’s not necessary for us to have that information to receive and review this application.”
Lincoln: “I noticed Joe Fossi was redacted from the committee. Are there any other local builders that are involved in this?”
Mucchetti: “Mr. Fossi is recused. And I have no information on whether any other builders are involved or not.”
Lincoln: “I have a question on the truck volume, which was a big concern of the committee. It’s a huge concern of mine, as well…”
‘Not a secret’
Part of Mucchetti’s role as chairwoman is to keep the hearing moving along under established procedure — making sure speakers give names and addresses, that everyone gets the chance to be heard, keeping discussion on topic.
Later — speaking from memory, without benefit of the tape — Mucchetti said her intent was not to quiet Lincoln, or deflect his questions.
“I was trying to answer the question with the information we had. We know Joe Fossi was recused,” Mucchetti said.
“His question, as I recall, it was he knew Joe Fossi was recused, were any other builders or contractors involved with the project? My answer was Mr. Fossi was recused, we have the name of applicant and applicant’s representative, but that’s the only information we have...
“I was not trying to evade or obfuscate who owned the property,” she said.
“It’s all in the application. There’s a letter from Joe, signed, in the application, giving the applicant the right to go forward — it’s not a secret.”
Attorney Jewell said he was simply reacting to the situation as it unfolded — including the tone of the question, as well as considerable history of rumors and misinformation being disseminated on social media.
“The applicant is shown on the form and, as far as I know, Chuck Saber is the only owner of the entity,” Jewell said. “My objection to the ‘disclosure’ was because the guy who asked was just being unreasonable or perhaps he bought the misinformation being spread by the trolls. That information is right on the application form and is public record.”
Doesn’t happen often
One other project Fossi did that required him to recuse was a commercial building he put up several years ago on a property in Branchville — at 9 Ethan Allen Highway.
The approval was utterly routine, he said, and involved a “special permit” — meaning a public hearing, and a vote of the commission were required. A different kind of application might need just review and filing of paperwork in the town planning office.
“The building I did in Branchville was a single lot that was zoned for exactly what I built there, but because everything in a commercial zone requires a special permit, I had to get a special permit for it,” he said.
The Branchville building and 800 Ethan Allen Highway are the only properties he’s had any business interest in during his tenure on the commission, Fossi said.
“In 14 years, I’ve had two properties I was involved with, and I recused myself,” Fossi said.
Fossi also said that he doesn’t think of himself as someone in land development.
“I’m not really a developer, I’m a builder,” Fossi said. “... Most of my business is really additions and renovations.
“I do mostly additions, renovations, and I’m building probably about a house a year — a new house a year,” he said. “If I was going to take an average, since I was on the commission, maybe one new house a year.
“The new house business is not what it used to be,” he added. “I used to do three or four a year.”
‘Always will be true’
Fossi said he’s far from the only commission member in recent years to be in construction.
“I could name at least four other people who were elected to planning and zoning who were builders in town,” he said. (In addition to himself and Halon, he mentioned former commissioners Don Gifford and Dave Huntoon.)
Fossi said he’s followed appropriate procedures — always recused himself if warranted. His business has never been a secret, and he’s been elected and re-elected. He doesn’t see the problem.
“If there was anything I was involved in as a builder, I recused,” he said. “That’s always been true and always will be true.
“Certainly, I would never be involved in an application that I could personally in any way shape or form profit from,” Fossi said.
“If anyone can find an application that I profited from, have at it,” he said. “I’ll resign tomorrow.”
He’s unapologetic because he doesn’t feel like he ever has profited from or would take advantage of his position.
“The long and short of it is, I feel like I have the best interests of the town at heart,” Fossi said.