Woodstock resident and former candidate for town supervisor Nancy Schauffler has filed a notice of appeal to a State Supreme Court Justice’s decision to dismiss her lawsuit, first filed in 2012 against the Woodstock Planning Board and 105-109 Mill Hill Road, LLC (the corporation that owns the property on which Cucina restaurant is sited). The June 24 dismissal rendered by Justice Lisa Fisher in Catskill was based on Schauffler’s failure to formally name in the suit, and serve the restaurant and its owner in a timely fashion after being ordered to do so. Schauffler’s current notice of appeal continues the long running dispute in which she, a contiguous neighbor to the property, objected to the manner in which the restaurant was given permission by the town to expand its operations into the large red barn on the property next to the restaurant. She has six months to perfect her appeal, according to New York law.
“I am disappointed by the dismissal. The fact that the first two judges declined to dismiss the case shows that it has merit,” said Schauffler, in emails in late June. “I can only offer a quote by Heywood Broun, father of the famous Woodstock resident: ‘A technical objection is the first refuge of a scoundrel.’ I will appeal Judge Fisher’s decision. This case should be decided on its merits.” Two previous Justices assigned to the case each passed it on for various reasons.
But John C. Capello, of the firm Jacobwitz and Gubits, of Walden, NY, counsel for Cucina and Lois Freedman, the restaurant’s owner, pointed out that such notices of appeal are routinely filed. Should an actual appeal follow, Capello said, “We’re confident we’d be successful. It’s just more time, effort and expense. My client just wants to be operating her business in compliance with everything Woodstock has asked of her. We’re happy with the judge’s decision. We feel it was the correct one. [My client] went to the town at the very beginning, asked them how to proceed and followed their recommendations.” Asked about the nature of winning a case on questions of standing, of technical nature, Capello replied, “I think it was pretty clear to everyone that the law requires that they (his clients) be noticed and able to participate in their defense.” And he reiterated that Cucina and Freedman “just want to continue to operate their facility in compliance with the law.”
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The case itself centers around proceedings that took place in 2012 — an April decision that year by the town’s Zoning Board of Appeals revoking a building permit that had been granted Cucina to renovate the red barn for its purposes. Later that year, in June, the ZBA said that Cucina needed to apply to the Planning Board for a special use permit and site plan approval for use changes in the red barn. The applications were made and in September, 2012, the Planning Board decided that, the judge’s decision states, “the proposed work on the site was minor in nature, the special use permit requirement under the applicable zoning laws and further site review were waived with conditions, including new parking calculations.”
Schauffler’s counsel, John J. Privitera, of the firm McNamee, Lochner, Titus & Williams, of Albany, wrote, “the Town Planning Board took an illegal turn, caved in to well-documented political pressure on the public record…” and listed eight items that would be, contrary to law, omitted from the proceedings due to the board’s decision, including that “the number of additional parking spaces, required to be measured and calculated under the Town Law based upon seating, would not be done,” and that no public hearing would be held.
Schauffler, on August 3, confirmed her intention to follow up on the notice of appeal. “I would love to see a judge actually consider the merits of this case,” she said. “We have currently a very unsafe situation with the barn. There should be at least 65 parking spaces and there are only 55. So cars are parking in the fire lane, cars are blocking the rear exits to the red barn. It’s a fire trap back there.”
However, Justice Fisher’s decision to dismiss the suit did not consider those arguments. Rather, the dismissal was based solely on the failure by Schauffler and her attorneys to, in a timely fashion (20 days from a judge’s order), amend the lawsuit by adding the restaurant Cucina and its operator, Lois Freedman as respondents to the proceedings and providing them with proper service. Originally, only the owners of the property, 105-109 Mill Hill Road, LLC, and the Woodstock Planning Board were named and served.
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