Questions over ‘timeliness’ and jurisdiction
The Philipstown Zoning Board of Appeals this week again postponed action on a home transformation project after a memo from the town attorney sparked debate over the board’s jurisdiction.
The disagreement stems from plans by architect Timothy Rasic to convert a small, circa-1960 ranch-style house at 529 Route 9D in Garrison into a taller — or, critics contend, larger — home.
The ZBA got involved in November after Jose Romeu and Sidney Babcock, who live next to the property, brought an “appeal,” on complaint, about a building permit issued for the project. In January, the ZBA opened a public hearing that continued in February and on Monday (March 2), and will resume next month.
Romeu and Babcock claim that the demolition of the original structure required not only a building permit but a special-use permit from the ZBA because Rasic’s planned house far exceeds the size allowed by town code.
The Rasics maintain that Romeu and Babcock waited too long to object.
In an opinion prepared at the request of the Philipstown Town Board, Stephen Gaba, the town’s legal counsel, linked the timeliness issue to the ZBA’s authority.
When an appeal is not filed by the deadline, “the ZBA lacks jurisdiction and cannot hear and decide the matter” and “the building inspector’s decision stands,” he wrote. Gaba did not attend the hearing, but ZBA Chair Robert Dee read the memo aloud.
Under local and state laws, Gaba wrote, aggrieved parties must file an appeal within 60 days of either the building inspector’s issuance of a permit or the onset of visible construction. He noted that in legal documents Romeu and Babcock reported they realized by July 24 that construction was underway. However, they did not file an appeal until Oct. 10.
Gaba acknowledged allegations that the Building Department had denied Romeu and Babcock ready access to materials on the Rasic project but said that even if the department had delayed their review, “it seems clear” they got the information in time to file an appeal before the deadline.
Since they missed it, their “appeal is untimely and the ZBA lacks jurisdiction,” he advised board members. “I’m sure you can appreciate the need for the ZBA, like all other municipal boards, to comply with the law in regard to the limits of its jurisdiction.”
Dee concluded that “our hands are tied” and that Gaba “is telling us that we lack jurisdiction” to proceed. “I’ve no intention of breaking the law.”
Offering clarification, Adam Rodd, the lawyer for the ZBA (and Gaba’s colleague), said the board still “needs to act on the appeal” and dismiss it as untimely or, alternatively, accept it as properly filed and consider the underlying arguments of the case.
Romeu said he and Babcock could not comprehend the scope of the project until they saw the Building Department documents on Aug. 12, after four unsuccessful attempts. “How could I file something if I didn’t get the information or paperwork?”
Joan Turner, a former ZBA member, said she was at the Building Department on other business and saw “uncooperative” staff rebuff Romeu. Turner termed the ZBA “a quasi-judicial body” whose members “do have the right” to act in the case. “This undermining of the appellate function of the ZBA by the town attorney is absolutely outrageous,” she said.
Frank Smith III, the Rasics’ attorney, urged the board to immediately rule in their favor. “The law is clear,” he said. “You are being asked to disregard the law, and that’s highly inappropriate.”
But with two members missing from Monday’s discussion and complex matters to weigh, the ZBA chose to continue deliberations in April. “I don’t like it any more than anybody else,” Dee said of the delay.