The Plattekill Zoning Board put off making a final decision on an appeal of a determination made by the town’s Code Enforcement Officer, Scott F. Mandoske, on a proposal for a drag strip at 153 Freetown Rd. In late July Mandoske told the ZBA that he did not intend for his February determination to be considered a use determination for the property. The applicants for the project are Anthony Dirago and Tina Bucci and neighbor Kenneth Rodriguez filed an appeal of Mandoske’s use determination.

ZBA attorney Richard Hoyt said he and ZBA members Wilfrido Castillo, George Hickey and Pearl Morse received this new information from Mandoske when they met with him on July 29. Hoyt then read Mandoske’s February 3 ‘determination’ into the record.

“Please take notice the following determination is made, the proposed outdoor recreation and amusement is a special use in the BD 60 zone and requires a 150 ft setback as required by the code.”

Hoyt said this admission by Mandoske raises a significant legal question; “Can a code official change his decision after he has made it?” Hoyt said the ZBA should decide this issue first before proceeding any further but urged the board to allow comments from the public. He suggested putting off a decision on Rodriguez’s appeal until their September 9th meeting.

Resident Shari Riley pointed out to the board that off road and motorized vehicle uses are allowed in the BD 80 zone but not in the BD 60 zone where the drag strip has been proposed. She noted that the surrounding area is primarily residential.

“The intensity of running a drag strip, including noise, dirt, fumes is in alignment with the heavy impact activity stated in the BD 80 zone,” she said, pointing out that the town code in Section 110-54 is specifically designed to protect residential districts.

Attorney Dave Gordon represents Kenneth Rodriguez, who filed an appeal of the use determination made by Mandoske.

Gordon believes Mandoske was not going back to change his determination in July, but was doing so to clarify it for the ZBA.

“His intent was never to make a use determination [on February 3] and he didn’t and that’s why he wrote the March 18th determination, which was the use determination,” Gordon said, pointing out that the February determination focused on the 150 ft setback requirement and the March 18th determination was on the proposed use of the land.

A reading of Mandoske’s February 3rd and March 18 determinations reveals differences: in February he states that the, “proposed outdoor recreation and amusement is a special use in the BD 60 zone and requires 150 ft setback,” as per the code. His March 18 Notice of Determination, however, is far more detailed. He clearly states that the proposed drag strip, “appears to meet the definition of outdoor recreation and amusement,” as defined in the town code. He then lists all of the recreational uses in the code, again stressing that this outdoor recreation and amusement would be as a special use in the BD 60 zone and is regulated by [town code] Section 110-45.

Gordon said when his client Rodriguez went to the town clerk, he filed a Freedom of Information Request, dated March 10, asking for a copy of the use determination that he heard about at the March 25th Planning Board meeting. He was told, however, that one did not exist. In fact, a note was written on his FOIL request by the town, stating that “No letter of determination at this time.”

Gordon said attorney Hoyt’s comments that Mandoske told him that the February 3rd determination was not a use determination, “is exactly what I told the board last month. The reason that no one in town hall believed that it was a use determination is because the building inspector didn’t believe it; this is completely consistent. He is not changing what he wrote, he’s not changing what he meant, he’s telling you what he meant when he wrote it.”

Gordon said the ZBA has two issues to resolve on September 9: whether the February 3rd determination was a use determination and whether Rodriguez needed to appeal that, but if the ZBA decides instead that the March 18th determination was a use determination, then Rodriguez filed his appeal in a timely manner and meets the legal provisions of the statute of limitations.

Rodriguez filed his appeal on May 17, which he believes meets the 60 day statue of limitations, however the applicant’s attorney, Ken Stenger, said Rodriguez missed the statute of limitations deadline because the 60 day clock started in February not March.

Stenger said the law further states there is no requirement that an individual must have notice of the actual determination for the statute of limitations clock to start ticking. He said the two determinations made by Mandoske are, “substantially or identically the same thing,” and that the 60 day clock runs from the earlier of the two.

“That’s law and the reason for that is that determinations are always in derogation [partial revocation of a law] of somebody’s right to use their land and the law wants a short statute of limitations for the landowner to know he can proceed based on that determination.”

Stenger believes Rodriguez knew at the Planning Board meeting of March 25, 2021 that a use determination had been made in February and that he still had 10 days to file an appeal to meet the deadline but he failed to do so and has offered no explanation on why he did not file.

Stenger said the key issue is not whether a Code Enforcement Officer can change his mind but, “the real question is what is the effect of a document in the public record; is it subject to the author’s comment to not rely upon it, I really didn’t really mean it that way.” Stenger said if Mandoske did not intend for his February determination to be about the use of the property, then he should have gone to the Planning or Zoning Board to explain that as soon as he learned that it was being used as the basis of the ZBA public hearing. Stenger said it is questionable from a legal perspective, whether Mandoske could have gone back and done that once the determination was in the public record.

“I can’t look at the public record and have to guess whether someone intended it to be there,” he said. “There is a difference to changing your mind and changing the public record. If he changed his mind or made a mistake or whatever the circumstance is, it doesn’t mean anything because nobody went back and changed the public record.”

Stenger said the ZBA has a single question before them; what date was the use determination made – February 3 or March 18, which will settle when the statute of limitations clock started.

At the September 9th ZBA meeting Stenger hopes the board is informed, “about the relevant rules of law that apply to all of these issues...I think it’s pretty clear that the law will require that the board find that he [Rodriguez] is too late, is outside the 60 day statute of limitations and accordingly, we [ZBA] don’t have to hear the application [appeal].”