David R. Everett, partner at Whiteman Osterman & Hanna, wrote some kind of secret letter to the zoning board (ZBA) of Stuyvesant this week. See this post.
The letter seems to argue that the ZBA can go on a fishing trip to get me some other way if the dog barking thing doesn't work out.
I haven't read the letter but I bet the phrases "original jurisdiction" and "specifically granted" feature prominently. I bet, and wouldn't it be nice to know?, that David R. Everett, partner at Whiteman Osterman & Hanna, argues that state law, as outlined here, allows jurisdictions to make exceptions to the appellate function of the ZBA.
The Court of Appeals, New York State's highest court, has recognized the necessity for and the value of boards of appeals as a "safety valve" to prevent the oppressive operation of zoning laws in particular instances, when the zoning restrictions are otherwise generally reasonable.
David R. Everett, partner at Whiteman Osterman & Hanna, proposes, with a creative reading of town law and clever citation of "specifically granted," to make the ZBA the opposite of a ZBA. Can he turn the ZBA into an agent for making zoning oppressive despite the fact that the purpose of the ZBA is to prevent zoning oppression?
You can use a safety belt to choke someone but that's not what its for. It's called a SAFETY belt because it is suppose to keep you safe. The Zoning Board of Appeals is called a board of APPEALS because that's what it's supposed to do, hear appeals.
If a creative reading of town law suggest that the ZBA has broad powers, if state laws allows for exceptions to the appellate functions of the ZBA, these two facts cannot add up to an opinion that renders the ZBA to be opposite of its purpose, not without violating the 5th amendment of the constitution anyway.
I didn't get the letter so I'm guessing. Dave says, "ZBA you can fish." Next, public comments. Someone says, "Fish!" Dave says, "Hey, guys, you can fish, remember?" All of a sudden my appeal of a dog barking issue is a hearing on whether or not my dogs run away or whether I filed my workman's comp correctly or if I wash my shoes before I go in the house or if I filed form 23B with the state office of stupid forms or some other thing.
I think that's the plan.