At last week’s public hearing the Plattekill Zoning Board was scheduled to respond to Kenneth Rodriguez’s appeal of a determination made by the town’s Code Enforcement Officer, Scott Mandoske, concerning a proposal for a drag strip off Freetown Road in Modena. Mandoske stated in a Notice of Determination, dated March 18, 2021, that this project, “appears to meet the definition of Outdoor Recreation and Amusement as defined in Sec. 110-6,” of the town code.
ZBA attorney Richard Hoyt suggested that the ZBA break this into two parts by first determining if the appeal was filed in a timely manner and if so then the board could address the determination.
“I am not trying to limit tonight’s hearing, but it would seem appropriate if we concentrate [first] on the timeliness issue,” he said.
Hoyt admitted that he was not ready for the hearing, despite the matter being before the ZBA for 4 months.
“I personally am not prepared to get into the merits of the real question [as] I was away for most of this past week and when I got in this evening, I see there’s just a lot of material flying around, mostly among the lawyers, and the arguments are being crystallized,” he said.
Ken Stenger, attorney for drag strip applicants Anthony Dirago and Tina Bucci, said he has no problem with the ZBA setting a hard deadline for additional information, “so long as I can respond to whatever I might hear at the hearing.”
Dave Gordon, attorney for Ken Rodriguez who filed the appeal of the determination, said he understood that the ZBA is presently considering the procedural aspect of the alleged violation of the limitation period. He said two determinations have been made in this case; one on March 18, 2021 dealt with the use and the classification of that use on the property. In addition, at issue is the February 3 determination that he believes is not on the use but is on the required setbacks from property lines needed for the proposed drag strip.
Gordon said there are two separate rationales, either of which he believes would sustain the timeliness of the Rodriguez appeal.
“The March 18 determination, which is actually what was appealed, is the correct appeal and that the time frame should start from there,” he said.
Gordon pointed out that last March Rodriguez repeatedly tried to get a copy of the use determination but was told verbally and in writing that there was no use determination as of mid March. Rodriguez’s original Freedom of Information request was submitted on March 10 for this information.
Gordon noted that at the board’s June meeting, the ZBA attorney, “told us all that Mr. Rodriguez’s appeal was timely. He even remarked, as I recall, that somebody was looking at the calendar [and] noted that it was filed in a timely manner.”
Gordon said if the ZBA were to reconsider the entire timeliness issue, legal cases show that the clock starts, “only after the affected third party [Rodriguez] and not the land owner, is made aware of the building inspector’s use determination specifically. In this case, Rodriguez did not have a copy because no one in the town gave it to him even though he asked for it in his March 10th FOIL.”
Gordon said the facts here are clear; this was not made available to his client until April and thus the appeal was filed in a timely manner.
ZBA Chairman Wilfrido Castillo said he recalled the June meeting when Rodriguez said he went to the town hall to request the determination on more than one occasion.
Gordon said when a board applies the statute of limitations, “which a very draconian remedy, it’s very important to do it by the book and by what is fair.” He pointed out that the Court of Appeals, “is telling you, you can’t be unfair, the town can’t take actions to essentially, in effect, deny this information to this particular citizen and then say you’re too late to come back to us and appeal. I don’t think anybody meant to do that and I don’t think anybody even thought that February determination was a use determination. So all we are asking you to do is to recognize that history and to allow the appeal to go forward.”
Gordon said this is a huge issue in Plattekill and at the heart of the matter is where race tracks are allowed in town.
Ken Stenger told the board that this argument by opposing counsel, “is the most amazing thing that I’ve ever sat through, when a lawyer comes in and gives you his testimony and then asks you to rule in his favor because you have the ability and discretion to do so. This is what the danger is of what you’re doing here tonight.”
Stenger said the Statute of Limitations is “an absolute rule.” It is 60 days from the date when the determination was filed in the building inspector’s office; that’s the law.” He added “that according to the Court of Appeals the purpose of that law is to protect the landowner so he or she knows there is a 60 day period when a determination can be challenged.” Stenger said it is not a discretionary act for the board to make on when an appeal can be heard but it is dictated by the law. He said the ZBA needs facts rather than conjecture and he urged the board to get affidavits from people who were involved at the town hall to ascertain if they knew that a determination of use was made on February 3 and if it was subsequently filed properly.
Stenger said he reviewed the ZBA minutes of March 25, “and Mr. Rodriguez received actual knowledge of the February 3rd determination because it was spoken about on the record...on that day he had plenty of time to still comply with the Statue of Limitations but he didn’t do it, he could have, but he didn’t.”
Stenger brought the March 10th FOIL request to the ZBA that was submitted by Rodriguez that asked for copies of a determination that was in the possession of the Planning and Zoning Boards.
“He knows when he writes this that there is a determination, one made for your board and one made for the Planning Board, and in fact, that’s true because the February 3rd determination was made for your board.” Stenger was skeptical of Gordon’s comment that the Building Department said they had no knowledge of either of these determinations. In his own investigation, Stenger said he was told that the Planning Board determination was not in the file but that the Zoning Board determination was in the file.
Gordon countered Stenger by saying that the facts he presented are in a sworn affidavit that has been submitted to the board but that Stenger only used words to back his claims.
The ZBA closed their meeting, stating that the public hearing will be continued at their next meeting on August 12 at 7 p.m. at the town hall.