By Doug La Rocque
On Wednesday, March 28, the Stephentown Zoning Board of Appeals signed the written decision it made back on March 1, to grant Brian Baker’s appeal of a building permit issued to Tom Hanson to expand an existing trailer park at the corner of Brown Road and Route 22. Mr. Baker argued that the permit was not legal because the issue was never placed before the town’s Planning Board and was not grandfathered in under the zoning laws enacted in 1991.
At the February meeting of the ZBA, Building Inspect/Code Enforcement Officer Dean Herrick explained his reasoning for his decision to grant the permit. He stated that back in 1991, when the town was looking to enact zoning, they made a promise to existing landowners that they would still be able to expand on their property, even if it was now non-conforming with the zoning codes. Mr. Herrick stated that since that time, he has honored the town’s word, since no Town Board has formally instructed him to stop doing so.
Speaking with The Eastwick Press, Town Supervisor Larry Eckhardt says the current Town Board plans to look at all its options and may possibly take the steps necessary to end the practice of grandfathering. He indicated the Board hopes to meet with Mr. Herrick some time soon to discuss the matter and what changes they may consider making. He also said that following those meetings, any proposals they put forth will first go before the Stephentown public for their input, before any such legislation is finalized.
What Happens Next?
Even though the ZBA’s decision is finalized, what happens next is most likely a matter that will be decided by State Supreme Court Judge Patrick McGrath. Mr. Baker, having won his appeal, now has the right to send a letter to the town, giving them ten days to respond to his request for remediation. Should the town refuse, or simply not respond to his demand, he would have the option to file a taxpayer lawsuit. That would require at least three taxpayers to initiate that litigation. When he last spoke with The Eastwick Press, Mr. Baker indicated he was evaluating all his options.
Mr. Hanson has 30 days to appeal the ZBA’s decision to the Supreme Court. The clock starting the day he receives a copy of the signed decision. Mr. Hanson’s attorney, Bill Better, also tells The Eastwick Press that he and his client will take that time to look at all their options and evaluate an appeal.
Mr. Better has already filed an Article 78 proceeding, which is in front of Judge McGrath, asking that ZBA member David Cass be excluded from any actions involving the Baker appeal. He contends that his appointment on January 1 was made with the condition he recuse himself. That is a statement that four of the Town Board’s five members contest and reiterated in a separate resolution in early March, that said so. That resolution was approved by a 4 to 1 vote, with only P.J. Roder voting against it.
Mr. Cass’s ability to participate in the appeal is a key component. ZBA member Bruce Fairweather had already recused himself, leaving just four voting members. Any vote to approve the appeal would need a majority of the Board, or three votes. That is actually what the appeal got, with Board member Richard Sime voting against it. If Mr. Cass’s approval were to be tossed out by Judge McGrath, it, as the old cliché goes, “would toss another monkey wrench in the works.” Judge McGrath has given no timetable for his decision. He did deny a request for a temporary restraining order against the ZBA vote until his decision on Mr. Cass’s eligibility is made.
A Mute Point?
Mr. Better also claims the whole issue is now mute, because the building permit was closed out on December 27 last year, prior to arguments on the appeal. He also states that the septic system installed for the park expansion was also tied into the six existing homes as part of an overall improvement. He questions whether the town could order the septic removed, since it is now also part of the septic for those existing homes. That too is a question that remains to be answered.