Last week the Plattekill Zoning Board of Appeals [ZBA] dismissed Ken Rodriguez’s appeal of a determination made by the town’s Code Enforcement Officer Scott Mandoske on a drag strip that has been proposed at 153 Freetown Road by applicants Anthony Dirago and Tina Bucci.
Rodriguez, who lives at 151 Freetown Road, was appealing a March 18th determination by the Code Enforcement Officer, believing it was on the use of the land, however the ZBA stated that a previous February 3nd determination by the officer was essentially the same and the one that started the 60 day Statute of Limitations clock running. By Rodriguez filing his appeal on May 17, 2021, the ZBA stated that he missed the 60 day deadline and led to their dismissing his appeal.
“The Board finds that the 2/3/21 determination is clear and subject to no other interpretation. It was not retracted nor modified by the later determination of 3/18/21,” ZBA attorney Richard Hoyt stated.
The ZBA pointed out that in the February 3 determination the Code Enforcement Officer wrote that a drag strip, “is outdoor recreation and amusement, is a special use in the BD-60 zone and requires a 150 ft setback” as per the town code.
On July 8, 2021 the ZBA denied the applicant’s request for a setback variance because they did not meet the requirement of the code on this point.
“Thus the Town of Plattekill Planning Board has no jurisdiction to review and decide the special Use/Site Plan application for a drag strip. At this time the drag strip proposal, as presented, cannot be pursued,” Hoyt wrote.
The ZBA did not accept Rodriguez’s argument that the statutory clock should have started from the March date because he did not receive that determination until April 8, 2021. The ZBA instead said, “there is no mention of extending that window from the date that actual notice is in hand by any would-be appellant.”
The board further pointed out that Rodriguez was present at the ZBA meeting of March 25 when the applicant’s surveyor discussed the February 3rd determination, leaving 11 days for him to file and appeal but he failed to do so.
The opinion concluded that, “As the ZBA has no jurisdiction to entertain this appeal, it cannot reach the merits of the appeal but urges the Town Board to revisit the issue of Outdoor Recreation and Amusement and to exercise its legislative prerogative to address any issues that, in its judgment, need to be resolved.”
In a subsequent interview, ZBA Chairman Wilfredo Castillo Jr. said this was one of the longest matters to come before his board, lasting about five months. He noted that the applicants first went to the Planning Board with a concept of what they wanted to do on their property but Castillo discovered that Planning did not have an actual detailed site layout that Surveyor Brooks had drawn up.
Castillo said the ZBA should not be an applicants first stop, but instead they should go to the Planning Board.
“Don’t come to us first, it doesn’t make sense because the Planning Board might see something that we don’t,” he said. “They see black and white, they see what’s there. Zoning sees zig-zag lines, where can we bend the rule without breaking it and getting the town into [legal] trouble...It’s relief on the law and not to throw the law out.”
Dave Gordon represented Ken Rodriguez on his appeal. He said when Rodriguez learned at the ZBA meeting of March 25 that a determination had been made on February 3, he could not get a copy of the use determination from the town for that date but was eventually given the March 18th determination.
“He was trusting the town to give him the right determination that he’d have and that he could appeal from. He never got the February 3rd determination but my partner FOIL’d for it and got it on April 8,” Gordon said.
Gordon said his client has to decide whether to accept this ruling, “which is not based on firm law. The law does say that if there is a third party who is opposing a building inspector’s determination that they have the right to notice. The problem is whatever notice they claim was provided on March 25 was compromised. The town staff consistently kept telling him [Rodriguez] there was no February 3rd [use] determination. They never gave it to him and never acknowledged that there was one and we now know why because the building inspector never considered it a use determination.”
Gordon pointed out that the two determinations are not similar.
“The February 3rd determination was for the setback variance and March 18 was on the [land] use,” he said.
Gordon said Rodriguez can challenge this ZBA decision by filing an Article 78, which would go before the state Supreme Court in Kingston. The basis of this action would be that the ZBA applied the wrong statute of limitations.
“There are two reasons why; one is they just used the wrong determination. The [land] use determination was the March 18th determination and we’re challenging that this is outdoor recreation with these cars,” he said. “And even if it was the February 3rd determination, there was no effective notice of it to this third party [Rodriguez] and when there’s a third party they need to have effective notice of it.”
Attorney Ken Stenger represents the applicants Dirago and Bucci. He said this Zoning Board, “tells you what they think. They work it out, they write it and you don’t get that kind of dedication from many zoning boards. They have a well deserved reputation for answering the questions before them with a thorough explanation for their reasoning.”
Stenger pointed out that they denied his clients application for a variance while at the same time denying to hear Rodriguez’s appeal because he violated the statute of limitations.
“That’s pretty good work on the part of the board. It’s clear that the board understands and is part and parcel of the process of making the decisions,” he said. “That’s very impressive.”