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.
In approximately 30 encounters — either in person, by email or by phone — with the Philipstown building department, Building Inspector Greg Wunner, Town Supervisor Richard Shea, County Legislator Nancy Montgomery and the Zoning Board and its members between July 13 and Aug. 12, we attempted to obtain the paperwork to file a petition for review of the permit issued for a non-conforming structure at 529 Route 9D.
On Aug. 9, the chair of the Zoning Board graciously and correctly asked me to try again. On Aug. 12, with the help of a lawyer, we were finally given the paperwork to file our petition. It was timed-stamped within the 60-day period. Many months later, against established law, the Town Board on March 2, sensing a loss, placed its heavy hand on the scale by attempting to change this timeline. The documentary evidence is clear. We filed on time.
Zoning Boards of Appeals must be established when a municipality enacts zoning. State, town and village laws endow ZBAs with appellate power to hear appeals of rulings by the code enforcement officer as well as interpretation of the zoning code. In this capacity, the Zoning Board sits as if it were a court.
According to the state’s Local Government Handbook, “ZBAs function free of any oversight by the municipal legislative body. Where the Zoning Board of Appeals has final decision-making authority, the legislative body may not review the grant or denial of variances…” The ZBA is the sole interpreter of the town’s ordinance.
In the case of 529 Route 9D in Garrison, both the timeliness of the appeal and the incorrect granting of the building permit are before the Philipstown ZBA. The ZBA is in the process of interpreting these issues, and as a quasi-judicial body has the sole right to do so. The Philipstown Town Board has no power to intervene in this appeal. If it did, what would be the purpose of a ZBA or a Planning Board? They would be superfluous, and in direct conflict with state, local and municipal law that en-sure the creation of these independent agencies.