The New Paltz Village Zoning Board of Appeals (ZBA) voted to hold a hearing on what building inspectors can and cannot inspect regarding the construction at 2 Mohonk Avenue, over the objections of the village building inspector.
Village residents Tim Rogers, Terry Dungan and Theresa Fall want the inspector to enforce local zoning code, but building department employees believe they are constrained from doing so by an out-of-court settlement to a lawsuit brought by the developer of the Mohonk Avenue property against the village. In making the decision on October 14, ZBA members agreed to hold a public hearing on December 9. The meeting room in Village Hall was filled with residents, but none were allowed to comment because that’s reserved for the public hearing.
Leading up to this disagreement about whether or not the building department has the authority to act was an Article 78 petition alleging that village trustees and employees were unlawfully denying building permits to No Place Like Home Development Corp., which was seeking to construct four new buildings on two adjacent lots — one of which had been vacant, the other with one house already there — for the purposes of renting them out to college students. It’s the very project that led the Village Board to change the law, only allowing one residential building on a lot in zones where previously up to three could be built. The suit, filed in January of last year, claimed that mayor Jason West and trustee Ariana Basco had pressured then-building inspector Kathy Moniz not to issue the necessary permits. In fact, one of the legal strategies employed was to maintain that the five buildings could not be deemed a single project and that each lot must be dealt with separately.
In September of 2013, Guy Caffrey, president of No Place Like Home Development, signed a settlement with Mayor West, deputy mayor Rebecca Rotzler, Trustee Basco and building inspector Moniz. The final paragraph of that settlement states, “The plans and parking for the project and construction at 2 Mohonk Avenue are to be reviewed and approved by the village engineer,” and that’s the basis for the appeal to the ZBA. Building department employees maintain that this is a court-ordered settlement which replaces their authority with an engineer’s report, effectively preventing the enforcement of village zoning code, while the appealing residents claim it’s illegal to give up that authority.
A copy of the settlement obtained by the New Paltz Times shows only the above-referenced signatures, indicating that it was reached among the litigants. Had it been ordered by the court, it would have included the judge’s signature as well.
According to Rogers, the site’s development should be reviewed by the Planning Board, despite the settlement to the contrary. Indicating that the full list of problems would be recited at the hearing, he gave one example — that of parking. Village code calls for 21 spots based on the capacity of the buildings, but only 19 are actually striped. It’s significant in part because with 20 or more spots, the code requires sidewalks and curbing. That would significantly increase the amount of impervious surfaces — those which don’t absorb stormwater — which should in turn trigger a stormwater analysis. Rogers pointed out that the intersection of Water Street, Plains Road, Mohonk Avenue and Pencil Hill Road is already prone to flooding.
“Trustees can’t give someone the power to break the law,” said Dungan, as he touched upon case law to support the appeal. He explained that the role of the code enforcement officer is defined by the Department of State as being limited to enforce the law as written; so in this case there is an obligation to enforce the law regardless of the content of the settlement.
Building inspector Mark Jaffee vehemently disagreed, telling ZBA members that the appellants were “leaving out one important thing: the code allows for Article 78 petitions and we have to follow that. Whether you like it or not, it’s our job to enforce it.” He stated that the proper venue for this appeal is the state’s Appellate Court, not the village ZBA. He told the board’s attorney, Victoria Polidoro, that he disagreed with her assessment that it was appropriate to have a hearing at all. He indicated he was concerned that allowing the appeal would lead to unintended consequences, but he did not elaborate.
While it’s true that an appeal of an order from a State Supreme Court justice should be made to the Appellate Court, it’s not clear if the same is true in the case of a settlement among the parties in a case that was not actually ordered by that justice. Polidoro is of the opinion that a ZBA hearing is the appropriate next step.
This is new territory for many of the participants. Nearly every employee of the building department has worked there for a year or less, and according to Rogers, no member of the ZBA has ever heard an appeal like this before. He claimed that there was considerable confusion about whether or not the action was legal, and if so, what forms should be used to file it.
The board did agree, after a lengthy debate, to waive the requirement that the property be posted with a notice of the hearing, since the property owner is not the appellant, and was reluctant to immediately agree to the posting. Village trustee Sally Rhoads, who as liaison to the ZBA takes the unusual step of actually sitting at the table with the board, first maintained that the board could require the posting, then suggested that following counsel’s advice — to waive it — was also appropriate. Rogers said he would be willing to post the sign on his property across the street, but the board did not actually require this of him.