Stephentown ZBA Sued Over Motocross

by David Flint
As he did two years ago, Lewis B. Oliver, Jr., attorney for residents seeking to block Howard Commander’s proposed Motocross park, has again filed an Article 78 proceeding against the Stephentown Zoning Board of Appeals. Oliver is challenging a decision the Board made in March in which, by a 3-2 vote following a public hearing, they rejected an appeal of the Code Enforcement Officer’s determination that no area variance would be needed for the project’s access road which is within 25 feet of a neighboring property.  [private]The Planning Board had also weighed in on that issue, submitting to the ZBA an advisory opinion that an area variance would be required. The ZBA’s decision in effect rejected that advice along with the appeal.
Howard’s attorney had argued that the access road was actually a pre-existing, if non-conforming, driveway and, as Code Enforcement Officer Dean Herrick had pointed out, Town regulations make an exception for necessary driveways.
Oliver had countered that a grandfathered non-conforming use cannot be changed to another non-conforming use without prior approval by the ZBA and then only to a use which is of the same or a more restricted nature. The former tractor trail, he argued, had been changed by Commander toward becoming a commercial roadway intended to carry 300 cars in and out of the site on a single day of racing.
Two years ago Oliver filed an Article 78 challenging the ZBA’s decision to grant a use variance that would have allowed the Motocross park to be built in a residential area off of Webster Hill Road. Oliver charged that the Zoning Board had failed to follow State and Town law and regulations in multiple instances in their deliberations on granting the zoning variance. The challenge was successful, and the ZBA’s action was vacated and annulled. The Board, later augmented by three new members appointed by the Town Board, had to start over again with a review of Commander’s application that included a full blown State Environmental Quality Review process.
At a meeting that lasted about two minutes on Thursday, June 7, the ZBA passed a resolution to retain attorney Craig Crist, who has been representing them in these proceedings, to defend them in the Article 78 proceeding as well. There was no other business since Commander’s team was not yet ready with their draft Environmental Impact Statement.[/private]