HOST COMMUNITIES GREENWAY FUND

STANDING COMMITTEE MEETING

Friday,  September 7, 2007 - 12:00 p.m.

Niagara County Department of Economic Development

6311 Inducon Corporate Drive

Sanborn, New York 14132

Staff Present:

Charles Miller, President, NPC

Mary Melloni, Recording Secretary                                                        

Stan Widger, Esq., NPC Counsel, Nixon Peabody 

Samuel M. Ferraro, Executive Director/Commissioner - Niagara County Center for                                                                                                                                                                          Economic Development

1.0          Call to Order

NPC Chairman Ross called the meeting to order the Host Communities Standing Committee meeting at 12:16 p.m. 

2.0          Roll Call

Ms. Melloni called the roll; a quorum was established.

3.0          Pledge of Allegiance

Mr. Ferraro led the Pledge of Allegiance.

4.0          Adopt Roberts Rules of Order

President Miller stated referred to the e-mail he forwarded to the members, along with a diagram that provides a visual understanding of the Host Community Agreement.  [This will be attached hereto and made a part hereof these minutes.]  

Mr. Miller asked for a motion to adopt Roberts Rules of Order.  Mr. Daly stated that with respect to Roberts Rules, procedures need to be in place for the Standing Committee; however, exceptions need to be made and the Settlement Agreement needs to be honored where that conflicts with Roberts Rules, particularly in consensus-based decision making.  He proposed that Roberts Rules be in line, with the exception that the terms of the settlement agreement and provisions of any additional protocols currently under development be recognized as well.  He stated that consensus-based decision making would just be one example.  Mr. Daly stated that he has not had an opportunity to study Roberts Rules to determine that he is ready to fully adopt them.

A discussion followed regarding consensus-based decision making and the adoption of Roberts Rules. Mr. Daly stated that the intent of the agreement says that the Committee will reach consensus-based decision making on all issues.  Mr. Newlin stated that 7.3 of the Agreement states that “the parties agree that the Host Community Agreement shall work in a cooperative manner and shall make a concerted effort to achieve consensus on all decisions.”  He stated that this differs from “consensus must be reached.” 

It was suggested that the Committee adopt Roberts Rules as the governing principals of the Committee where the Host Community Agreement might contradict them prior to the adoption of the protocol.  Mr. Massaro stated that if this were long-range, whatever the Host Communities Protocols are would take precedent over Roberts Rules. 

Mr. Widger explained that what is before the Committee is that Roberts Rules would be adopted, subject to anything to the contrary in the Host Community Settlement Agreement; also subject to later adoption of the protocols to the extent the protocols may be inconsistent with Roberts Rules. 

Mr. Granto made a motion to adopt Roberts Rules of Order, except to the extent that Roberts Rules is inconsistent with anything in the Host Communities Settlement Agreement and subsequently upon adoption of protocols, that the protocols control over Roberts Rules where there is any inconsistency.  Mr. Newlin seconded the motion.  Motion passed 7 – 0.

Mr. Fluskey asked if it is agreed that the Committee has not identified what, if any, inconsistencies exist between Roberts Rules of Order and the Host Community agreement.  Mr. Miller stated that is correct; it has not been discussed yet.

5.0          Elect Chairperson

Mr. Newlin requested that the Committee also elect a Vice Chairperson to act as Chairman in the case of an absence. 

Mr. Rappold nominated Mr. Granto as Chairperson of the Host Communities Standing Committee.  Mr. Ross seconded the motion.  Motion passed. Mr. Granto stated he is accepting of the nomination.  Mr. Ross motioned to close the nominations and members cast votes, seconded by Mr. Newlin.  Motion passed.  Mr. Granto was elected Chairperson unanimously. 

Mr. Ross nominated Mr. Newlin as Vice Chairperson of the Host Communities Standing.  Mr. Granto seconded the motion.  Motion passed. Mr. Newlin stated he is accepting of the nomination.  Mayor Anello motioned to close the nominations and members cast votes, seconded by Mr. Rappold.  Motion passed.  Mr. Newlin was elected Vice Chairperson unanimously. 

Mayor Anello nominated Mr. Rappold as Secretary of the Host Communities Standing Committee, seconded by Mr. Granto.  Motion passed. Mr. Rappold stated he would accept the nomination as long as he has the support of the NPC support staff. Motion passed. Mr. Ross made a motion to close the nominations and the members cast votes, seconded by Mr. Newlin.  Motion passed. Mr. Rappold was elected secretary unanimously.

6.0          Adopt Standing Committee Protocol

It was indicated that the 9/05/07 Draft is the document to be discussed today.  [A copy of which will be attached hereto and made a part hereof these minutes].

Mr. Miller stated that NYPA, in their position as facilitator for the protocols, has been developing and working on their document; and he and Mr. Widger have been in constant communication with NYPA .  The latest version of the Host Community (HC) Standing Committee protocol has been forwarded to NYPA.

Mr. Granto asked if Mr. Widger, after reviewing the 8/30/07 draft of NYPA’s protocols in comparison with the Host Communities, sees any concerns/issues between the two protocols.  Mr. Widger stated that the most significant issue is in the later stages of consensus decision-making where NYPA’s version has a dispute resolution process introduced, whereas the HC protocol has a provision that it would go to a majority vote if consensus cannot be reached after good-faith efforts to do so on two separate occasions.  Mr. Widger stated the protocols are similar up until that final step--the HC protocol goes to the voting process, whereas the NYPA protocol goes to decision by alternative dispute resolution for the consistency determination; funding goes to the voting process.  Mr. Widger further explained that NYPA’s approach is that the consistency determination is treated with a higher “standard” in terms of the level of consensus and going to alternative dispute resolution to resolve that; whereas the remaining processes, i.e. selection of the projects once the consistency determination has been made and also for funding purposes, has a lower threshold.  The HC version is a one level process that applies to the whole decision.

6.0          Adopt Standing Committee Protocol

Mr. Daly explained that from the projects that have been determined eligible for funding, after it passes the consistency determination, the Standing Committee would identify projects that receive funding and determine the appropriate level.  They will strive to reach consensus on these decisions.  If after two Standing Committee meetings separated by a period of not less than 30 days and a consensus of the members cannot be reached, then a two-thirds vote of the Standing Committee would be required.

Mr. Massaro stated that after the consistency, as far as the projects are concerned, the difference is that the HC protocols call for two attempts to get consistency, then to a majority vote, all of which can happen at the same meeting.  NYPA’s calls for two attempts in separate meetings, then a two-thirds vote.  Mr. Daly stated that to be eligible for funding, the projects must be consistent with the Niagara River Greenway Plan as determined by consensus basis by a Standing Committee.  Should the Standing Committee fail to reach consensus on whether a project is consistent with the plan at two separate committee meetings (separated by not less than 30 days), the project may still be eligible for funding if the project is found to be consistent through a dispute resolution process agreed upon by ALL members of the Standing Committee. 

Mr. Granto asked Mr. Widger – regarding the HC Protocol on page 3, last sentence reading “No such project shall be entertained in the absence of such sponsorship,” meaning the HC must sponsor a project or it will not even be considered,  and it goes on to state “no such project shall be approved over the objection of the HC or within whose geographical boundaries…” how this reconciles with the statement that says the Committee cannot consider any projects unless they have Greenway consistency established.  If a project comes to a community or school district and they want to sponsor the project, however the project has not gone to the Greenway Committee; can the community/school district authorize the sponsorship to go to the Greenway then come to the Committee, or can they come to the Committee to get approval, go to the Greenway for consistency then come back to the community/school district for funding?  Mr. Granto stated that if they have to go to the Greenway first, HC may not get project proposals.  Mr. Daly stated that from the NYPA perspective, what they have built into their general protocols that would apply to all is essentially time windows for consulting parties; because it might not just be the Greenway Commission that a project needs to go see.  There may be other agencies (i.e. DEC) that a project has to go to.  One of those agencies is the municipality where the project is located.  Therefore, Mr. Daly stated, NYPA has built in a time window in which those consulting parties should get comments back to the project proponent within 60 days.

Mayor Anello stated that for example the City is going to do the boat docks and it is consistent with any Greenway protocol because it has been on the books for years.  Since the City would be the municipality and has the money from NYPA, what would the process be now?  Mr. Anello stated that If it is going to mean that if six out of seven say yes to the boat docks and one says no, it should not mean the project will not happen.  Who will have the power to object to the City of NF spending a portion of the Tourism Recreation Fund on the boat docks?  Mr. Daly stated that NYPA has defended that any decision on consistency is a Standing Committee Decision.  He also stated that the HC’s requirement by the settlement agreement is strictly to consult with the Greenway Commission and other State and Federal agencies as needed.  Mr. Massaro explained that the question is how the Committee determines the consistency.  Mr. Daly stated that since one of the steps via the Settlement Agreement requires evidence that the Greenway Commission was consulted with, and that evidence goes to the Standing Committee. 

6.0          Adopt Standing Committee Protocol

Mr. Granto stated that the HC Protocols call for a host “sponsor.”  Mr. Daly stated that there are two steps; if the project is located in the City of Niagara Falls, they will have to consult with the Greenway Commission and the City of Niagara Falls before it comes to the HC Standing Committee because there has to be municipal sign-offs.  Mr. Granto asked if it was.  Mr. Daly stated it is not possible for someone to go directly to the Standing Committee with a proposal no, not with evidence of the sponsorship of the municipality and the Greenway. 

Mr. Burgasser stated that one of the steps is that the project gets given to the Greenway Commission for consultation after they come to the Standing Committee because why go to the Greenway Commission if it is not going to be approved by the HC Standing Committee.  The protocol says that consultations that come in from our third party agreement will receive a resolution from the Greenway acknowledging that there was a consultation, and that is all they are going to do.  Mr. Burgasser stated that therefore, the proper step would be to come to the Committee first to see if the project will even be considered.

Mr. Widger stated that Mr. Burgasser has the correct concept, however under Step 6 on Page 5 it says that one of the things that has to be submitted is evidence of consultation with the NRGC and that has to be submitted no later than ten days before the meeting is identified in the next step, which is the meeting at which the project will be discussed.  It allows some flexibility as to when people go to the Greenway Commission.  Mr. Burgasser stated that they can go to the HC Standing Committee first to see if the Committee would even consider the project.  Mr. Massaro explained if a project is in the City of Niagara Falls they would seek the sponsorship of the City of Niagara Falls, the School District or the County.  It would be incumbent, as the applicant, to seek one of them as a sponsor.  Then, if he cannot get the sponsorship of one of the three, he cannot even come before the HC Standing Committee.  Mr. Granto stated that his question then is can they then go to the Greenway and the Greenway says that it is consistent but they have no sponsor in the HC Committee.  Mr. Massaro stated if they want HC funding they could not go. 

Mr. Burgasser pointed out that paragraph 1 under “REQUIREMENTS FOR FUNDING PROPOSALS…” on Page 2 of 4 of the NYPA protocol it states that they have to consult with the geographical region they are going to be in.

Mr. Daly stated that the issue of sponsorship raised a public relations concern for him when he read it.  The settlement agreement talks about the HC or individuals with an interest may submit projects to the Standing Committee provided they have evidence that they have consulted with the NRGC, with the municipality or State and Federal agencies.  In the settlement agreement, Mr. Daly stated they envisioned all of that happening before it even got to the HC Committee because of the possibility of a project coming before the Committee to make some level of determination and then DEC or the Army Corps saying it can’t be done.  NYPA would like that consideration done prior to coming to the Committee. 

Mr. Burgasser stated that the HC Standing Committee needs to see what the projects are and once they show an interest in them,  direct them to get the required consultations, etc. and then they would come back with the project to make sure the numbers are proper, etc.  Mr. Daly stated there is a pre-determination nature to sponsorship – an open, transparent process that NYPA is hoping the HCSC has.  Mayor Anello stated that the allotment is done, and questioned why would someone would have veto power on how the HC’s spend their money.  He explained that if a project is large enough they can borrow on this and pay it every year for ten years from

6.0          Adopt Standing Committee Protocol

the monies received and use it as debt service.  If that determination is made as a municipality, he asked if the committee could say no to that form of funding?  Mr. Daly explained not if the other things are in place.  Mr. Daly stated that the NYPA has made a commitment to put the dollars into a fund and those dollars are going to be available. 

Mayor Anello asked if each entity has the right to their portion of the money.  Mr. Daly stated that NYPA’s main concern in all of this is the consistency determination.  After that, it is really up to the HCSC because then there is the two-thirds vote on funding levels and appropriate projects to fund. 

Mr. Daly stated that NYPA attempted to make these two separate decisions – the consistency and then the funding. Because the reality is the HCSC could say it is a good project and is consistent but we have no money, and decide not to fund it.  The Standing Committee would also be able to prioritize.  Mr. Massaro stated that the allocation is there for each entity, but if the committee operates on the basis of consensus on the funding level decision, there would be no funding unless everyone agreed to it.  Mr. Massaro asked if NYPA will accept the NPC By-Law allocation.  Mr. Daly stated that NYPA rejected putting that in during the settlement negotiations (the allocation); if you take a look at the settlement agreement, NYPA accepted the Community fund allocation separation; they accepted the Power allocation division; but did not accept the allocation as outlined in the NPC by-laws and he does not foresee them accepting it. Mr. Daly stated that NYPA’s concern is that projects are consistent with the Greenway Commission. 

Mayor Anello stated he wants to make it clear on all documents written by the Committee from now on that the portion of the NYPA money that comes to the City of Niagara Falls, belongs to the City of Niagara Falls.

Mr. Miller read from the HC Agreement, Section 7.1:  “Within 60 days after the NYPA files its acceptance of the new license with FERC and the NYPA and the host communities in a manner approved by the Host Communities in accordance with the by-laws of the NPC, shall establish a Greenway Recreation/Tourism fund in the Host Communities.”  Mr. Miller stated that in his opinion this makes it clear that these funds are subject to the by-laws of NPC. 

Mr. Granto stated that the school districts need to be included [page 2, REQUIREMENTS FOR FUNDING PROPOSALS…(2) the chief elected officer…affected by the proposed project;]. If the project involves the school districts, they need to be added to this statement in the document.  Mr. Widger explained that this may be because the language came out of the settlement agreement. Mr. Granto asked that this be amended.

Mr. Burgasser stated that he interprets the NYPA document (Evidence of consultation) to indicate that the Greenway Commission makes the determination on a project; whereas he does not feel they get to make that determination.  Mr. Daly stated that NYPA is referring to having substantive issues with consulting parties (i.e. DEC, etc.).

Mr. Massaro stated that the determination of a project is made by the Standing Committee, but the question is  will it be by a two-thirds vote or a majority vote.  Those issues need to be settled before there is an agreement. 

6.0          Adopt Standing Committee Protocol

Mr. Granto stated that the two agreements are close to being congruent.  Mr. Daly stated that the NYPA is not in a position to adopt anything today.  He stated one of the issues that needs to be addressed is the reference of a Greenway “concept” versus the Greenway “plan.”  Mr. Daly referred to the HC Standing Committee Protocol, page 1, under Background, last two lines… “the HC Committee ensures that the proposed project is consistent with the Greenway concept…”   Mr. Widger identified that the reason for not saying “plan” was to cover the situation that is identified in the HC Settlement Agreement in the event that the Greenway Plan is terminated; the idea is that you have the concept of what the Greenway plan was about.  Mr. Burgasser suggested adding wording that says “including the Greenway Plan if in existence.”  Mr. Daly suggested taking the language in the settlement agreement and put “consistent with the Greenway Plan and should the Greenway Plan be terminated …[Insert language from Section 7.3 (p. 16) of the Settlement Agreement that begins with ‘the HC Committee shall ensure that the proposed project is consistent with…”]

Mr. Burgasser stated that the protocols from the NRGC indicate they are expecting a full application process; and that was never considered as being part of the HC relicensing.  Mr. Daly stated that the Greenway Commission is moving in the right direction and have put a tremendous amount of work into making an effort to have one set of rules and one bank of information for all submissions to them as they have to be prepared for submissions beyond relicensing developers.  They are trying to put one form together that encapsulates somebody who wants to do an EPF grant with no relicensing funds involved or a TEA-21 grant with no relicensing funds involved.  However, general protocols identify what we believe would be meaningful submission to the Commission or any other consulting parties.  They have dropped their questions to 5.  Mr. Daly stated that the Executive committee met and sent a draft to their Commission and it is available on their web site. 

Mr. Ferraro stated that that point was discussed where it says our consultation with the NRGC, the way they define it, includes filling out an application for them to make the decision of consistency or consultation.  Mr. Ferraro stated if there is a form that they have to fill out – there is another application process whether it is one page or 20.  That is not in the HC Agreement.  Mr. Daly stated they removed the word “application.”  They are making efforts and anything they are asking for right now is probably something that is no more than copying and pasting or submitting an additional copy of the project. 

 Mr. Granto asked if the consulting period will keep changing as they ask for information.  Mr. Daly stated that they have identified a window of 60 days for them to accomplish it; it is incumbent upon them to do it.  Mr. Granto stated that it appears in the documents that the consulting period starts over again if they don’t meet the criteria, referring to page 2 of the NYPA Protocol, paragraph two “…if it is not, the project proponent will provide the additional information and the consultation period will begin upon submission of the additional information.”

Mr. Rappold referred to Page 16, 7.3, 2^nd paragraph “…provided that each proposal provides written documentation evidencing consultation with the Greenway Commission…”  Mr. Rappold stated that it does not refer to forms or applications, just “written documentation” that the Greenway Commission is aware of what you are doing. 

6.0          Adopt Standing Committee Protocol

Mr. Burgasser stated that the latest application from the NRGC is 4 pages, requests other documentations, and there is a consultation and review form.  This means that all the Host Communities are going to have to do this and this was never envisioned.  In addition to that, after a quick review, they took out the part regarding the fact that they had a whole separate area for the mandated third-party agreements of which says that they will do just an acknowledgement of consultation—instead the HC’s have to complete the same application that everyone else does.  Previously their original proposal contained something that stated they would treat it differently from the HC’s, which is what the intention was of the third party agreement.  Mr. Massaro stated that when the HC’s approve their protocols they will send a letter to the NRG. 

Mr. Newlin stated that they need to know what that process (consultation) is.  Since consultation is not explicitly defined in the HC Agreement. 

Mr. Daly suggested that they take back the information discussed jointly, address the wording and prepare for the next meeting to approach closure on these items for everyone.

Mr. Daly stated that the document conflicts itself in places.  Mr. Burgasser stated that he does not believe that either NYPA nor the Coalition members intended for the contract to create a stalemate-- and therefore the language that says we are going to make a concerted effort to come to consensus leaves it open that the Committee needs to be able to have another method if consensus cannot be reached. 

Mr. Daly stated he does not see consensus from the NYPA as ever reaching stalemate if you are willing to sit down responsibly in an open setting and use an open mind.  Mr. Newlin commented that the idea of “majority rules” is the longest serving tradition in Western democracies.  In 50 years there are going to be 7 representatives plus the NYPA and he would like to hope that they will agree on everything, but there is a good chance they will not and that is the future interest he has to protect and is incumbent upon all members to protect.  Mr. Newlin stated that to mandate consensus on a political body is a wonderful concept, but it is not based in the real world. 

Mr. Granto stated that what consensus gives the NYPA is veto.  Mr. Newlin stated not only does it give the NYPA veto, it gives any member veto 20 or 30 years from now.  One person, for reasons that are not apparent at this time, could conceivably veto every project. 

Mr. Daly stated that consensus will get things moving forward and planning for anything less is doing a disservice. 

Mr. Granto stated that he believes in consensus, however, he also believes in moving forward. Mr. Granto is asking Mr. Widger, Mr. Miller and Mr. Daly to make changes/adjustments to the protocol and then there will be some issues to be reviewed at the next meeting.  Mr. Daly stated that the Committee should be involved in the NYPA protocols that need to be put into play.  Mr. Burgasser asked Mr. Ferraro if it has been resolved regarding whose protocols govern if there is an inconsistency.   He stated that it has not been addressed.  Mr. Widger stated that the NPC’s proposal as expressed in the last group meeting was that the individual protocols of the Standing Committees would govern over any inconsistent provisions of the general protocols. 

6.0          Adopt Standing Committee Protocol

Mr. Fluskey stated that this is a reason consensus is problematic -- everyone around the table agrees that majority vote is reasonable --- except one entity.  And this has been going on for weeks.  Mr. Daly stated that the Standing Committee has not been empowered to negotiate with NYPA on their protocols. 

Mr. Daly stated that the next meeting NYPA will be holding regarding the protocols will be on September 26, 2007.  Mr. Granto asked that Mr. Widger, Mr. Miller to sit down with Mr. Daly to review these issues prior to September 26, 2007. 

Mr. Massaro stated that there is a mandate from the seven members that consensus is not 100%.  The only thing that they can come back with is that the NYPA accepts something less than 100%.  Mr. Burgasser stated that the HC’s proposal commits to consensus, but if not consensus then it would go to a majority vote. Mr. Widger stated that it will basically be whether it goes to an alternative dispute resolution or to a vote.  Mr. Massaro stated that two hours ago the first issue discussed was the consensus issue.  What is the direction that goes to the members – do they move off our positions completely;

7.0          Next Meeting

It was decided that the Standing Committee would meeting again on Wednesday, September 19, 2007, following the 12 noon meeting of the Niagara Power Coalition. 

8.0          Adjournment

Mr. Newlin made a motion, seconded by Mr. Rappold, to adjourn the meeting.  Meeting adjourned at 2:20 p.m.

Respectfully submitted,                                                                               Reviewed by,

_____________________________                                            _____________________________

Mary P. Melloni                                                                                                Donald Rappold

Recording Secretary                                                                       Secretary