Saturday, March 24, 2018

Stephentown ZBA Upholds Baker Appeal

March 8, 2018 by · Leave a Comment 

By Doug La Rocque

In October of last year Stephentown Attorney Brain Baker filed what is known as an Article 78 action in New York State Supreme Court, challenging the building permit that was issued to Tom Hanson for the expansion of a trailer park located at the intersection of Brown Road and NY Route 22. The action was denied because the court ruled Mr. Baker had not yet exhausted all his remedies with the town, namely filing an appeal with the Zoning Board of Appeals.

After a lengthy debate at the December meeting as to the timeliness of the appeal, a motion to reject the appeal failed when a majority of the Board declined to vote in favor. At that time Board member Bruce Fairweather recused himself from the proceeding because of recent dealings with Mr. Baker.

At the ZBA’s February 1 meeting, nearly three hours of arguments took place as to the merits of the appeal. The most important statements that night coming from Building Inspector Dean Herrick, who admitted he considered the property on which the expansion is taking place to be grandfathered in and exempt from a non-conforming zoning declaration based on a 1991 promise made by the town to land owners when zoning was first instituted. He told the ZBA that night no Town Board since that time has told him not to honor that promise and he was simply keeping the town’s word when he granted the building permit to Mr. Hanson without first sending the matter to the Planning Board and a subsequent public hearing. Also brought up that night by Mr. Hanson’s attorney Bill Better was the ability of the newest member of the ZBA to participate in the process. He contended that the appointment of David Cass to the Board on January 1 was made with the condition Mr. Cass not take part in the appeal. At its January 15 meeting, the Town Board stated the appointment was made without conditions and passed a resolution at its February 26 special meeting reiterating that. Mr. Better promptly filed legal papers with the Supreme Court, challenging the appointment, and asked for a Temporary Restraining Order (TRO) preventing the ZBA from ruling on the appeal at its Thursday, March 1 meeting. That TRO was denied and after voting not to consider letters filed by both sides after the oral arguments and public hearing where closed, chose to uphold the appeal by a three to one vote. Board Chairman Roland Barth, Arthur Karis and Mr. Cass voted in the affirmative, while Richard Sime cast the only negative vote.

Following the vote Mr. Karis explained his vote by saying he believed the building inspector’s actions where in violation of the town’s zoning law, and in particular, because the land in question was not part of the original property the park was built on. It was purchased by Mr. Hanson after the zoning regulations took effect. He also strongly pointed out that while he disagreed with Mr. Herrick’s decision, he did not feel there was any collusion between Mr. Herrick and Mr. Hanson. Mr. Sime explained his vote simply by saying he thought it unfair not to grant the same approval to Mr. Hanson as had apparently been granted to three other trailer park expansions in the town. The owners of those parks, however, appear to have owned the land the expansions took place on prior to the 1991 zoning laws.

Is the Decision Too Late?

Following the ZBA’s ruling, Attorney Better told The Eastwick Press, “it’s a mute point.” He says all the site work was completed in December of 2017 and the building permit closed out at that time. Asked as to what impact the ZBA ruling would have on any further work or placement of more trailers on the site, the ZBA’s attorney Chris Langlois said he “really wasn’t sure at this point,” and needed to look into it some more.

At its February 26 meeting, the Town Board said it had already spent $7,000 on attorney’s fees in this case and it was certain that cost would go higher. Mr. Hanson told The Eastwick Press it was concerning that one man (Mr. Baker) was costing the town so much money. When asked to reply to that statement, Mr. Baker said “if anyone is looking at me, they are looking at the wrong person.” He also indicated he brought his action on behalf of the people of the town, whom he felt were not being given the benefit “of the rule of law.”

What’s Next?

The legal proceedings instituted by Mr. Better are returnable before Supreme Court Justice Patrick McGrath this month, but as to how long it may take for him to issue a ruling is anyone’s guess. And as to whether the decision will prevent Mr. Hanson from placing more trailers on the site depends, of course, on who you speak to. Mr. Baker may have summed it up rather succinctly when he said this is still a legal mine field, and as he put it, “the rule of law is not out of the woods yet.”

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