ZBA Minutes 1/17/06

Mount Kisco Zoning Board of Appeals

Minutes

Tuesday January 17, 2006 7:30 p.m.

Mount Kisco Village Hall

Members Present: Donald Rose

Robert Marino

Harold Boxer

Max Lippolis

Members Absent: Mickey Zucker

Staff Present: Karen Schleimer

Representing RD Management - Dan Hollis attorney Shamberg, Marwell, Hollis & Davis

Donald Rose: Opened the Mount Kisco Zoning Board of Appeals meeting January 17, 2006 at 7:50 p.m. The first order of business is the approval all of our minutes of the last meeting, October 18, 2005. If there are no comments, I would entertain a motion to approve the minutes.

Robert Marino: I moved to approve the minutes.

Max Lippolis: I second the motion.

Donald Rose: All in favor, the board votes aye. The chair votes aye. We have before us tonight, and application for an interpretation of the provision in the Village Code. The applicant is known collectively as F. B. Mount Kisco, unit one, LLC and FB Mount Kisco owner, LLC and Bazaar Mall Associates. Before opening the public meeting, we need to have a review of the technical issues involving the application. Nancy, I believe that proper notice was given and all green cards received. Is there proof of posting of the meeting?

Nancy Placona: Yes.

Donald Rose: The question that is paramount at this point is the timeliness of the filing.

Harold Boxer: May I interrupt for one moment? I would like to ask the attorney whether the appellant is allowed to have their own court stenographer at an open meeting.

Karen Schleimer: It has actually never come up before. Will you be submitting a copy of the record to the board?

Dan Hollis: Absolutely.

Donald Rose: On that issue, is there any discussion of among the members of the board? Is there an objection to the fact that there is a court stenographer? Since there is no objection we shall move on. The application received by the board was dated August 30, 2005. Please correct me if that is not a true date. Does counsel have an opinion as to whether the notice was timely filed?

Karen Schleimer: My perspective, is that the date. First of all under the Village Law is a 30 day period, the state law requires 60 days. Even permitting this applicant, 60 days, for I believe is the original notice of denial, for filing the application failed under the 60 day. From my perspective to the June 8 letter from Austin Cassidy, to which clearly states the Notice of denial. This is in fact, the official notice of denial. There is no other correspondence. There is no other documentation that states it is a notice of denial. The notice of denial dated June 8 is in the normal form of notice of denial. It is specifically issued by the Building Inspector of Mount Kisco. There was a letter. Just to go back the June 8 letter and it says in its caption, Re: notice of denial. There is a subsequent letter, from the attorneys of the applicant written shortly after that, which acknowledges the receipt of the notice of denial in the June 13 letter from Shamberg, Marwell written by Daniel Hollis lll. Where it says, please receive this letter as our notice to you pursuant to the requirements of the Zoning Board of appeals in the form of an application that we are in the process of preparing appealing the zoning board of your determination. I think that acknowledger's, the June 8 letter as a notice of denial. I think that the subsequent letter included in the applicant's packet, the subsequent letter from the Building Inspector as a denial. We have here a copy of the zoning board application attached to the applicant's papers with a stamp date of August 30, 2005 zoning Board. Between the June 8 denial and the August 30 date is in excess of the 60 days.

Donald Rose: Thank you for your views on that. Do the members of the board wish to comment on the issue of timely filing?

Max Lippolis: I guess I would be happy to. I have reviewed the files pretty thoroughly. I have tried to look at the timeline. That has been set forth by the attorneys that are presenting their argument regarding the time barman. Obviously there is a lot of communication going on, within a two or three month time period. There is obviously a very detailed chain of communication going on. I think as Karen has said, there is obviously a notice of denial, that was sent to the attorney's office on June 8th written by Austin Cassidy. Obviously, in some of the subsequent letters especially the ones in August that start talking about and bringing up the issue of whether, and I think we got late in the game there. I think there was some concern by the attorney, whether the time barman would be an issue, is obviously when some of the rhetoric from the letters started trying to pinpoint when the actual clock started ticking on this 30 or 60 day time period. I think we all acknowledge 60 days would be the fair assumption here even if there was any ambiguity to the attorneys. In that June 8 letter, whether that notice of denial actually meant notice of denial of their appeal for notice of denial of a CO. even if there was any ambiguity whatsoever. I think it is quite clear in a letter on June 13 by Mr. Hollis, that clearly acknowledges. That they are acknowledging that there is no other option for them at this point, than to pay the fine. Which although is duly noted that it is being paid for with prejudice, and all the other wording that goes along with it. To obviously leave open their right to seek an interpretation. I strongly feel the wording, which is detailed by Mr. Hollis himself, as Karen noted. Clearly except the fact and goes to the point of mentioning that they are in the process of perfecting an appeal. There is a lot of other communication, which you can look at, and there is some ambiguity to it and you could draw different conclusions. When I see this June 13 letter by Mr. Hollis that clearly states that you are in the process of preparing an appeal to the zoning board, because you have taken that note, yourself and saying, this is when my clock is ticking. It is quite difficult. Even if you look at the pages 12 and 13 when you are making the argument more on page 13 when you're talking about the issue of why and notice of appeal. Verbiage in a letter in a subsequent letter, which you reference, I believe, on August 5 is sort of a verbal notice of appeal. You can use that same terminology in your June 13 letter. To say that the notice of appeal, terminology is being used and that should be sufficient enough to classify it as a notice of appeal. Therefore giving you whether 30 or 60 days from that point on, you reference in an August 5. I believe you use the same exact wording in the June 13 letter.

Donald Rose: Just for the record, the chair would like to know that the hearing has not been announced as a public hearing. We are in the process of determining whether this indeed should be.

Max Lippolis: In my opinion, given those two issues. It just seems like the attorney in this case was clearly aware that a timetable had been established and the clock had begun, and therefore, I find it quite difficult to see an application come in, August 30 to find that sufficient to meet the 60 day window.

Donald Rose: Do either of the other members present have any comments that they wish to add? The chair also notes the same information in the June 13 letter, with reference to the notice of denial, dated June 8. The attempt to characterize the later informational letter August 5th as the denial, I do not agree with. I believe that the intent clearly was as stated in the June 13 letter. The quote is, please received this letter as our notice to you pursuant to the requirements of the zoning Board of appeals in support of an application that we are in the process of preparing appealing to the zoning board. You're pursuant to sectionA-110 B3 as to the additional filing fees and seeking the items which are fully stated and included in the paper record. I believe therefore, that even the 60 day window mandated by the state law in this regard was not met, missing by more than just two or three days. Clearly, August 30th is a good 75 days.

Karen Schleimer: I just would like to point out the August 12 letter from the Building Inspector of Mount Kisco, noted by the applicant. That it was in fact, delinquent and time barred.

Donald Rose: That was the August 12 letter from the Building Inspector to the applicants, attorney. In the opinion of the chair the board is really barred from accepting this application, because of the lack of timely filing. I think if we were to look the other way. We would be establishing a president's. That could come back to haunt us later on, and we don't know whether some other parties might in fact, think that we acted illegally by accepting the case. It could be unforeseen problems. The applicant, I think is well aware that they do have other remedies to address the issue.

Karen Schleimer: I would also like to put on the record: That the applicant filed notice of claim against the village, which was received by the office of the village manager, on August 16^th. This was before the filing of their application outside of the 60 day period, as we counted from June 8^th. It clearly demonstrates that there was some concern that preserving the right to go outside of and further than the appeals to the zoning board.

Dan Hollis; Will I have the option to be heard?

Donald Rose: I think that we would not allow that, because that would be considered opening the public hearing.

Dan Hollis: I think on the issue. I would object to that. I think it's relative to our client's substance to do process rights. I would like to just say this, so it would be official. I am submitting as petitioners Exhibit 1 a copy of what you already have and the August 30 submission. I think it would be unfair for me not to address at this point. With good intentions have been characterizing certain things I have written that making assumptions about my state of mind, and my intentions at my purpose. I don't think that that is your job. I think your job is to make appeals, and that is what we have done. Most importantly, there are two things. Number one, your own rules require that notice be given before, you can file the appeal. Notice was given within the 60 day period. Exhibit L. which was quoted from and was not quoted from accurately. I will let the record speaks for itself as to what extent exactly. But I will read from it. I won't paraphrase it.

Donald Rose: If I could ask you, just to pause, because having the continuing dialogue that is strictly in a public hearing format, does bothers me a bit.

Dan Hollis: It bothers me to have my words misquoted.

Donald Rose: I would like to first hear from counsel.

Karen Schleimer: I think that the board can make a determination as to whether the matter is time barred. The applicant has a problem; the applicant has a forum in which to seek redress.

Dan Hollis: Except this gentleman Mr. Lippolis, he said, I clearly said in my June 13 letter that I accepted the fact that the Austin Cassidy letter was a notice. What the letter says, please be advised that we at knowledge receipt of your two letters of June 8, 2005, which were characterized by you as one notice of denial and to notice of violation in order to correct. That is light years away from my agreeing that it was a notice of denial. I said it was a characterization. The other thing that is important. And in my memo and our submission deals with this actual limitation, at great length, is that your requirement is that notice be given. Notice was given, notice was given and my other letter of June 13. There is no requirement that the appeal be perfected within those 60 days. I think the board is making a huge mistake if they hang their hat on this procedural book. Hoping to avoid, what is somewhat difficult decision to make. Because I would hazard a guess that my review of this record we will be back here for a hearing on the merits.

Donald Rose: The question that has been raised is whether notice constitutes, and whether it falls within the requirements of the law.

Karen Schleimer: My impression is that it requires the filing of the actual application.

Dan Hollis: I believe we address that quite thoroughly. I will let that record speaks for itself.

Karen Schleimer: That is fine.

Donald Rose: I was under the understanding that notice had to be given, not only to the village, but to the zoning Board of appeals for the notice requirement.

Dan Hollis: I quote, and your own rules. If you read your instruction sheet on your web site, the letter of June 13. The shorter letter which is exhibit L. goes on to say. Please receive this letter as our notice to you pursuant for the requirement of the zoning board of appeals in support of an application. The notice has to go to the Building Inspector. In the first sentence and that is how it is done. And that is what your rules say.

Karen Schleimer: I don't think you can rely on web site as being the absolute requirement, as you pointed out.

Dan Hollis: If one was to make that decision you are welcome to it.

Max Lippolis: You are talking about your application of your issue, which he then denies. Application of your issues is then denied, and then there is an appeal. The appeal body, He is the one who denied it. You applied to him.

Dan Hollis: You have to read your rules. You have to understand your own rules. Your own rules say before I can file, what is exhibit N, before you can file that according to your rules; you have to give notice of your intentions to file that appeal. If I hadn't done that, I wouldn't technically; Mr. Cassidy or Mrs. Placona would not have been required to accept the printed form, Zoning Board of appeals application. Which is exhibit N. those are your own rules. We go through that and some detail in our memorandum, which precedes Exhibit A in petitioner's exhibit, one which I handed out tonight.

Karen Schleimer: Section712, the village law, each requirement decision or determination of the administrative official charged with the enforcement of the local zoning law shall be filed in the office of such official within five business days from the day it is rendered and shall be a public record. An appeal shall be taken within 60 days after filing of any order requirement decision. By filing and as such, administrative official and or the zoning Board of appeals.

Max Lippolis: I guess the question is when he filed with the Board of appeals, because it says and the Board of appeals.

Karen Schleimer: The only thing that was filed with the Board of appeals. As far as I am aware, is the application.

Dan Hollis: Exhibit L was filed with the appeals pursuant to your own rules, which we also have an exhibit to our submission as well, under exhibit C.

Karen Schleimer: The chairman was not carbon copied.

Max Lippolis: It is not addressed to him.

Dan Hollis: I call your attention to, this is exhibit C. these are your own rules. These are off the web site. You published it. It's yours, whether you like it on the web site or not. If you publish it, it becomes yours. Your own rules exhibits and says if you wish to appeal a notice of denial from the Building Inspector, regarding the zoning matter. You must give written notice of your intention to do so and submit the required application and Notice of your intention to do so. We gave notice of our intention to do so.

Karen Schleimer: And submit the required application documents within 60 days of the denial. That is what it says in the document that you are reading from.

Dan Hollis: Even if you are missing the boat on the denial issue and that if I had, this is not a situation where it is a side yard or a front yard or a use variance. This is for an interpretation of your ordinance. Before that claim, became right for me to complain about Mr. Cassidy's decision. I had to demand a refund. I had to make the payment and demand a refund. Otherwise, I do not have a judicial controversy. I have accepted it they have paid it and have walked away. And I have not voiced my displeasure. As the record is clear, I communicated with Mr. Cassidy on this point. Mr. Cassidy turned my request for a refund over to the village attorney, and there was back-and-forth, as it set forth in the record between myself and the village attorney Mr. Singleton as to the appropriateness of the position we were taking with regard to our feeling that this fee of $40,300 was excessive and not something that was a requirement for our client to pay.

Donald Rose: I think that we are beginning to slip into the substance of the appeal to the board, and not the timing issue. It is still the opinion of the chair that the June 13 letter, in effect is giving notice to the village. Even if we assume the zoning board is in that loop or not, and If we don't worry about that part of the process. The process was clearly starting. It was clearly intent to appeal to the zoning board. If it was not a denial, then what would the language mean? I am at a loss as to understand what it would be otherwise.

Max Lippolis: If he is using the statement, part of that statement which says you must give written notice which you are referencing June 13, as your notice that you cannot omit the last part and the required application documents within 60 days. If we are taking that as a true statement, because you are saying it is a true statement, then you're saying you gave written notice then, where is the second half of that statement.

Dan Hollis: What was stated in our memorandum gives you ample support as to the position we are taking. And I will let that record speak for itself.

Donald Rose: Even if we started the 60 day clock from the date of the June 13 letter, the lateness of the application is outside.

Dan Hollis: The time starts, and our position from August 5 denial.

Max Lippolis: You just said yourself; you gave written notice on the 13^th. Did you not? Did you not just say that? You can't say it. And I am still going to continue to send letters, and I'm still continuing to have dialogue and that when it doesn't satisfy me. I'm going to say, on August 5^th, then that is my denial.

Dan Hollis: You are entitled to your opinion. I respectfully disagree with you.

Max Lippolis: I am just going by what your words were. You said you gave written notice. We have a court stenographer.

Dan Hollis: My words that are in the record and what you are saying that all due respect, is you are interpreting what I am saying.

Max Lippolis: Exactly.

Donald Rose: I believe that we have heard your point, and your complaints about the characterization and the intent of your letters. It is all noted, and obviously is in the public record. I would ask are there any other board members that would wish to speak.

Harold Boxer: I just want to point out that we have not opened the public hearing. And I think that we should take a vote on the time issue.

Donald Rose: I believe that if there are no further comments from the board that would be the appropriate thing to do. Is there a motion, and I will ask our council to phrase it properly. In case I do leave something out. But I think the question here is not an action on the merits application but really on whether we are committed to accept the application. I would entertain a motion reject the application on the basis of late filing.

Harold Boxer: I will move that the issue, the hearing should not be held as the application was made over the 60 days limit and therefore was not a valid application to the zoning board.

Max Lippolis: I second the motion

Donald Rose: All in favor?

Board Votes All Ayes.

Donald Rose: That concludes the business before the board this evening. Are there any items of new business to be brought to the board's attention by the members?

Karen Schleimer: The only thing I wanted to let you know. The Westchester municipal planning Federation will be running its annual seminar, which takes place over four nights in March and April. They are doing a mock zoning board. They actually have a new program for people that have been there before. There may be things of interest. The course content will be finalized on Tuesday. I will be happy to get out to you, what the schedule is, so you can select, if you choose to go to any of these things. They are generally at night, at Pace in White Plains. In the past they have been repetitive, but they would be of interest to all. They are also going to do a mock planning board session. It may be very different this year and may be exciting and valuable.

Donald Rose: Duly noted. I thank counsel for the information and encourage all the members to think about attending. If there is no further business before the board, I entertain a motion to adjourn.

Harold Boxer: So moved.

Board All Ayes.

Meeting Adjourned: 8:25 p.m.

Respectfully Submitted By

Nancy Placona

Board Secretary

Created by nplacona. Last modified 2006-04-21 15:20:24.