The Town of Montgomery Zoning Board of Appeals (ZBA) made no decision on John Brown’s appeal to overturn the use determination for BHT-Montgomery.

ZBA Attorney Stephanie Tunic said the ZBA deferred the appeal, so if a similar project were proposed for the same site the applicant would have to go before the ZBA for a ruling on Brown’s appeal.

“This will be deferred and remain open if another application of a similar set of facts comes before the planning board for this property,” Tunic said.

ZBA Chair John Fallon said the board could not make a decision on the appeal because BHT-Montgomery withdrew its application on June 6. Located between Stone Castle Road and Browns Road, the 118-acre project would have contained about 4,115 parking spaces for storage of used inoperable insurance salvage/resale vehicles, according to planning board documents.

When the application was active, Town of Montgomery Building Inspector Walter Schmidt ruled the property to be an auto sales lot and automobile recycling facility because it fit the dictionary definition—despite the town code not containing a definition for that use—and granted the special exception use permit.

John Brown, Leonard Brown and the Historic Brown Family Farm, LLC requested that the ZBA reverse Schmidt’s determination and determine that the use is a junkyard, which is prohibited under town zoning law. Brown filed the appeal in April.

In a letter to the ZBA, George Rodenhausen, Brown’s attorney, said Brown’s appeal had a right to be heard and the building inspector’s determination should be reversed.

Rodenhausen agreed with BHT Project Attorney John Cappello’s earlier statements that the board’s jurisdiction is appellate and that the Brown family must be aggrieved in order for the appeal to be heard.

The appeal is between Schmidt and the Browns, not BHT, therefore BHT is not a party to the appeal and BHT’s withdrawal would not affect the appellate status, Rodenhausen argued. He also said the Brown family is aggrieved by Schmidt’s determination as long as it stands because BHT may return under the same name or a different name and build on another property near the farm.

John Brown said the decision not to rule on the appeal would allow future applicants to use the building inspector’s use determination as precedent for similar projects.

“Very clearly [future applicants] would try to use this as a precedent to say this was not challenged and they would not have standing because it was not done within 60 days,” Brown said. “So, maybe you’re protecting me but you’re not protecting another property that may be different that is also adjacent to me as long as you allow this use determination to stand. If you rescind his use determination, then that removes its ability as a precedent.”

The ZBA should remove the stipulation that this appeal will remain open only for this particular property, instead allowing the appeal to apply town-wide, Brown said.

ZBA Chair John Fallon said the purview of the board applies only to this appeal, which applies only to the specific site on which BHT previously planned to install an auto sales lot.

“We can’t make a decision that affects the entire town of Montgomery,” Fallon said. “[The building inspector] made a determination on this particular property.”

A continuation of the public hearing for Brown’s appeal will be at 7 p.m. on July 15 at town hall, 110 Bracken Road.