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AFFIDAVIT OF FRANK MONTECALVO


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY

THE LANDMARKS SOCIETY OF GREATER UTICA,
JOE BOTTINI, #NOHOSPITALDOWNTOWN, BRETT B. TRUETT, JAMES BROCK, JR., FRANK MONTECALVO, JOSEPH CERINI, AND O’BRIEN PLUMBING & HEATING SUPPLY, a division of ROME PLUMBING AND HEATING SUPPLY CO. INC.,

Petitioners-Plaintiffs,

For a Judgment pursuant to Article 78
and Section 3001 of the Civil Practice Law and Rules,

-against-

PLANNING BOARD OF THE CITY OF UTICA, NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, ERIK KULLESEID, ACTING COMMISSIONER, DORMITORY AUTHORITY OF THE STATE OF NEW YORK AND MOHAWK VALLEY HEALTH SYSTEM,

Respondents-Defendants

AFFIDAVIT OF
FRANK MONTECALVO

Index No. ____________


FRANK MONTECALVO, being duly sworn, deposes and says as follows under the penalties of perjury:

A. I am over 18 years of age and reside in the Village of New York Mills, County of Oneida and State of New York.

B. I am an attorney admitted to practice law in New York State since 1981, worked as an environmental consultant for JRB Associates, Inc., McLean,VA, from 1979 to 1982, and worked as an Administrative Law Judge for the New York State Department of Environmental Conservation from 1987 to 2000.

C. I was a member of the Steering Committee and served as chairman of the Infrastructure and Waterfront Development Subcommittee for the Utica Master Plan, approved by the Common Council in 2011 after more than two years of development with multiple opportunities for public scrutiny and input (the “Master Plan”).

D. The Master Plan neither calls for a “transformative” change to downtown, nor for an urban renewal-type project, nor for a new hospital there.

E. I became concerned that the Master Plan and other duly enacted plans/rules/ordinances of the City of Utica were being disregarded when, in September, 2015, Mohawk Valley Health System (“MVHS”), a non-government entity, while acknowledging that its existing St. Luke’s campus could be used, announced that it was going to construct a new hospital campus on 34 acres it did not own in downtown Utica (the “Downtown Site”) with no opportunity for public input on the project’s location, its impacts to the community, the need to take taxable properties, the need to dislocate/take thriving businesses, the need to close city streets, and the change to community character.

F. As information about the hospital project was slowly disclosed in the media in the following months, it became apparent that public concern over the project’s location was not going to be considered and that, regardless of environmental impacts and meaningful evaluation of alternative locations, the project was going to be located on the Downtown Site.

G. On July 11, 2017, to determine how the decision to site the hospital was made, the role local government played in that decision, and the persons responsible for the government’s role, I filed a Freedom of Information Law request with the County of Oneida (Exhibit 0 attached). That filing resulted in the production of hundreds of pages of documents, among which were the following [bracketed material added for clarity upon information and belief]:

1. Email, 1/16/2015 Anthony Brindisi [then Assemblyman, now Congressman for the Utica area] to Anthony Picente [Oneida County Executive], Steven DiMeo [President, Mohawk Valley Economic Development and Growth Enterprise, “EDGE” or “MVEDGE”], Lawrence Gilroy [Co-chairman of the Mohawk Valley Regional Economic Development Council, “MVREDC”] inquiring on the appropriateness of the new hospital for the Upstate Revitalization Funds (“URF”) – "… I think downtown should be looked at first..." (Exhibit 1 attached)

2. Email, 1/26/2015 Steven DiMeo to Anthony Picente, Anthony Brindisi, Lawrence Gilroy – "Scott [Perra, then President and CEO of MVHS] sent me an email and made it clear that he has to evaluate sites and cannot automatically go to a downtown site without having looked at other sites. I do not disagree with him but this process has to move quickly if we are to make a new hospital part of a URF investment strategy. I think a hospital investment is a viable strategy under this fund, provided it is part of a Utica revitalization strategy. I highly doubt that this would fare as well if it is a suburban investment. I may talk to Scott sometime today to see how he wants to proceed." (Exhibit 2 attached)

3. Email, 1/30/2015 Steven DiMeo to Anthony Picente cc: Anthony Brindisi, Lawrence Gilroy – "… If you are going to meet with [Director of Upstate Revitalization Richard] Tobe I think you need to talk to him about the downtown hospital project. I was pretty disappointed in his reaction to this as a URF initiative. He indicated that he is looking for net new jobs and creating new wealth. HE was not that enamored with the fact that such a project would revitalize a large part of downtown... " (Exhibit 3 attached [emphasis in original])

4. Email, 2/3/2015 Steven DiMeo to Anthony Picente, Anthony Brindisi, Lawrence Gilroy – "I asked Lisa Nagle of Elan [Elan Planning, Design, & Landscape Architecture, PLLC of Saratoga Springs, NY] to provide me with a proposal to help with site study and capacity analysis for siting new hospital. Scott needs this for his board and help build consensus on a site option ... we need to know if we can make case for a downtown site and in the process include it as part of the URF stragegy (sic)..." (Exhibit 4 attached)

5. Email, 2/3/2015 9:09PM Anthony Brindisi to Steven DiMeo, cc: Anthony Picente, Lawrence Gilroy – "… I spoke to Scott last week and relayed my preference for a downtown site. I know he has a Board to deal with but I hope he impresses upon them that a downtown site is preferable..." (Exhibit 5 attached)

6. Email, 2/3/2015 9:14PM Steven DiMeo to Anthony Brindisi, cc: Anthony Picente, Lawrence Gilroy – "... My whole thought process in bringing Elan on board is to make sure that we guide siting decision in favor of downtown..." (Exhibit 6 attached [emphasis added])

7. Email, 2/3/2015 9:30PM Lawrence Gilroy to Steven DiMeo, Anthony Brindisi, Anthony Picente – "Would you like me to reach out to Scott to ensure that he understands direction and if he needs any board help? ..." (Exhibit 7 attached)

8. Email, 2/23/2015 Raymond Meier [“Ray,” former State Senator, former County Executive and then counsel to MVHS] to Anthony Picente – "… See the e mail exchange between me and Anthony B. below... [Anthony Brindisi to Ray] I’ve asked the Assembly staff to investigate adding language to this proposal that the hospital needs to be sited in Utica. I know this move is not going to make some people happy but I am adamantly opposed to the hospital being sited in the suburbs unless absolutely necessary … I believe this is an opportunity for a brand new facility and a massive urban renewal project ..." (Exhibit 8 attached)

9. Email, 2/23/2015 Anthony Picente to Raymond Meier - “… I do agree that the Hospital needs to be located in Utica. I don’t understand the Board’s resistance to stating that emphatically...” (Exhibit 9 attached)

10. Email, 2/24/2015 Raymond Meier to Anthony Picente - “I agree that it should be in Utica too...” (Exhibit 10 attached)

11. Email, 4/09/2015 Anthony Brindisi to Steven DiMeo - “...Is EDGE still involved with assisting the hospital find a location for the new site? Are they considering a downtown location? … I hope they are seriously considering downtown as their primary location… I also hope they plan on abiding by the language of the law that makes clear the facility must be located in the major population center...” (Exhibit 11 attached)

12. Email, 4/09/2015 Steven DiMeo to Anthony Brindisi, cc: Anthony Picente – “… It is simpler if we can stop looking outside Utica ... ” (Exhibit 12 attached)

13. Email, 7/10/2015 Steven DiMeo to Anthony Picente, Anthony Brindisi – “… They do think that one can rebuild on the St. Lukes site so I think that is the alternative option. They think that if you factor everything into the equation, that St Lukes might be cheaper ... ” (Exhibit 13 attached)

14. Email, 7/17/2015 Steven DiMeo to Anthony Picente, Anthony Brindisi – “… Ray told me that Scott is of the view that everyone is trying to manage the hospital... ” (Exhibit 14 attached)

15. Email, 9/1/2015 Anthony Brindisi to Steven DiMeo, Anthony Picente, – “… I know Ray wants us to be low key on location but I don’t want public opinion derailing this ... ” (Exhibit 15 attached [emphasis added])

16. Email, 9/2/2015 Anthony Brindisi to Steven DiMeo, cc: Anthony Picente – “… I called Jim Brock this morning … He claims he’s being pushed by people on the hospital board who oppose a downtown site... I called Ray Meier and asked him to reach out to Scott to inquire whether this is being driven by board members. If it is, I am not honoring the hospitals request to remain quiet while they work through the process...” (Exhibit 16 attached)

17. Email, 9/2/2015 Steven DiMeo to Anthony Brindisi, cc: Anthony Picente – “… I am of the view that the hospital has to get its act together to move forward. Just do the friggin engineering analysis and site assessment on downtown. That will help meet SEQRA requirements....” (Exhibit 17 attached)

18. Email, 9/21/2015 Steven DiMeo to Anthony Picente, Anthony Brindisi – Recommended a change to Scott’s press release announcing that downtown had been selected as the site for the new hospital. (Exhibit 18 attached)

19. Email, 9/22/2015 Dan Guzewich [reporter with Rome Sentinel] to Anthony Picente – Requested comment on selection of downtown Utica for new hospital recapitulating Scott Perra’s statement which included “... In the event the downtown site proves not to be financially viable, we will move on to our second site option at the St. Luke’s Campus, which the board feels will also serve the community well.” (Exhibit 19 attached)

20. Email, 9/29/2015 Scott Perra to Anthony Brindisi, Steve Dimeo, Anthony Picente et al transmitting copies of letters to the Observer Dispatch editor (indicating unanimous board support for downtown “provided we can do it in a fiscally responsible way”) and to Jim Brock. (Exhibit 20 attached)

21. Email exchange, 10/6/2015, between Steven DiMeo and Scott Perra explaining hospital relationship to MV500 application for state grant funds. (Exhibit 21 attached)

22. Email, 11/5/2015 Anthony Brindisi to Steven DiMeo cc Anthony Picente - “...I believe the hospital isn’t doing anything at all until they know if we won the URI [Upstate Revitalization Initiative]...It’s frustrating having to spend this much political capital on this thing and get no hospital support. I feel like walking away from this whole thing and telling the community and hospital if you don’t want this thing downtown then good luck at St. Luke’s and don’t come see me for one ounce of state support.”(Exhibit 22 attached)

23. Email, 12/10/2015 Steven DiMeo to Anthony Brindisi, cc: Anthony Picente, Lawrence Gilroy - “…Right now we do not have a way to deliver downtown and they cannot incur extra costs to offset cost premium to assemble downtown site...”. (Exhibit 23 attached)

24. Email 12/11/15 Anthony Picente to Steven DiMeo, cc Anthony Brindisi, Lawrence Gilroy - “I spoke to Andrew on the way out yesterday and requested a meeting on the Hospital specifically on the downtown piece and he said we should do that ...He was also concerned that movement needed to be shown to assure the money remains ...” (Exhibit 24 attached)

25. Email 12/11/15 Steven DiMeo to Anthony Picente, cc Anthony Brindisi, Lawrence Gilroy - “Does Andrew realize that $300M does not get a new hospital in downtown and probably does not work at St. Lukes either. He balked at us putting this into the URI plan … Right now this entire project is in limbo and I think that would include the St. Luke’s site unless they do a cannabilized project that has some new construction… It is unfair for Andrew to say that the hospital has to show progress to keep the $300M in the 9 months after the ink dried on the budget ...” (Exhibit 25 attached)

26. Email, 12/22/2015 Steven DiMeo to Scott Perra, cc: Anthony Picente, Anthony Brindisi – indicating failure to win URI and that there are “options for keeping the downtown site option on the table.” (Exhibit 26 attached)

27. Email, 1/7/2016 Steven DiMeo to Anthony Picente, Anthony Brindisi – “We have a 5AM meeting this morning with MVHS. I have no sense on where the hospital stands. I would not be surprised if they are prepared to do a band aid project that would just add on to St. Lukes. I think they are looking or have looked at that option.” (Exhibit 27 attached)

H. On December 11, 2017, via Certified Mail with return receipt and fax (Exhibit 28 attached), I advised the Dormitory Authority of the State of New York (“DASNY”) of his concerns regarding the site selection process, that the process seemed to contravene the public process envisioned by Public Health Law (“PHL”) 2525-b, and that the downtown location seemed to contravene the objectives of said law; and requested that DASNY assume the role of Lead Agency under the State Environmental Quality Review Act (“SEQRA”) and that review under SEQRA include an analysis of the St. Luke’s Campus as an alternative project site.

I. I received no response to the aforesaid communication.

J. On or about February 5, 2018, via Certified Mail with return receipt and fax (Exhibit 29 attached), I again advised DASNY of his concerns with the downtown site and site selection process, advised for reasons mentioned that there was “no confidence” that regional entities could properly conduct SEQRA review in the public interest; and again requested that DASNY assume Lead Agency status and require an analysis of the St. Luke’s Campus as an alternative project site.

K. I received no response to the aforesaid communication.

L. On February 15, 2018, I requested that the Utica Planning Board defer lead agency status to DASNY or the NYS Department of Health for reasons stated. (Exhibit 30 attached)

M. On or about June 7, 2018, I submitted comments with numerous requests to the Utica Planning Board in response to its Draft Scoping Document (undersigned’s comments/requests incorporated herein by reference to the Draft Environmental Impact Statement [“EIS”]).

N. On December 26, 2018, I submitted written comments with numerous requests to the Utica Planning Board in response to its Draft EIS (incorporated herein by reference into the Final EIS), and those comments included a preliminary regulatory analysis demonstrating that most adverse environmental impacts may be avoided by relocating MVHS’s proposed hospital to its St. Luke’s Campus.

O. I maintain that because the hospital project is being implemented to advance the objectives of a state law, because it is being almost entirely paid for by the taxpayers of the state and certain of its political subdivisions, and because the governmental power of Eminent Domain will be employed either directly or coercively by agencies of political subdivisions of the state to assemble the Downtown Site, the hospital project is as much a state government project as it is a project of the MVHS, and the choice of site location is subject to the requirements of SEQRA.

P. In any event, the Planning Board, as lead agency under SEQRA, is required to comply with SEQRA, procedurally and substantively. The substantive analysis requires consideration of alternatives; and even for a private project sponsor, sites owned by the private project sponsor, which meet the sponsor’s objectives and capabilities, must be meaningfully evaluated at a level of detail sufficient to allow for a comparative assessment of environmental factors.

Q. The emails discussed above suggest that various individuals under the color of government authority and without any prior compliance with SEQRA used their positions to steer the MVHS hospital project to the Downtown Site to justify the request of additional state funds without regard to the avoidance or mitigation of adverse environmental impacts that might be offered by siting the hospital on the MVHS-owned and acknowledged-as-adequate St. Luke’s site, and without regard to the vision and requirements of the duly enacted Master Plan and other local plans, requirements, and ordinances.

R. Because I believe that the intent, if not the letter, of PHL 2825-b, SEQRA, the Master Plan and other duly enacted local plans, requirements and ordinances are being thwarted by various local and state officials to advance this project regardless of its devastating impacts, I join in the Petition herein.

Frank Montecalvo

Sworn to before me to this ____ day of May, 2019.

Notary Public


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We're not opposed to a new hospital, just do not bulldoze Downtown Utica's Historic Columbia-Lafayette Neighborhood... "Build It At St. Luke's!"



No Studies, No Reports, thus we remain #NoHospitalDowntown