Thursday, August 11, 2011

letter to the zba

If you are here for the garage project, click here .

Wednesday, August 10, 2011

Shirley Narzynski
Secretary of Planning and Zoning Boards
Town of Stuyvesant
P.O. Box 250
5 Sunset Drive
Stuyvesant, NY 12173

Dear Members of the Zoning Board of Appeals,

The matter before you pertains to my ability to earn a living to provide for my family. To revoke my permit or attempt to close my business without evidence of wrong doing or due process in a fair hearing with the right to appeal would be a serious injustice. To be fair, this process cannot include charges beyond my original appeal.

Government does not exist to arbitrarily close down business. Zoning and planning are often or occasionally necessary for the community but these functions of government can not be allowed to become oppressive. The ZBA exists to prevent zoning oppression. If the ZBA were to be an agent of oppression, the board would help drag the economy down. Small business should not be at the mercy of boards. We need stability, security and clarity in order to invest, experiment and grow. What we are seeing in Stuyvesant makes no economic sense and is not just.

The matter before you pertains to the safety of my family. The irresponsible and unfair actions of town officials, the planning, town and zoning boards have lead to a climate of hostility, threats, vandalism, surveillance, and intimidation. I have lost a year of my life, $70,000 to date. There is a long list of trauma and mental anguish suffered by my wife, my kids, my mother-in-law and me.

When an officer receives a complaint that is unproven or not actionable under existing law, the responsible thing to do is to advise the complainant that he is sorry but there is nothing he can do. This obvious choice is all the more apparent when the underlying complaint is trivial, a nuisance complaint, and not an issue of public safety not affecting any substantial issue of property or the environment. This sane response is for the benefit of both the person complaining and the subject of the complaint.

That should have happened in this case. The only law that applies here, “no unusual noise… that exceeds that of a normal residence,” is vague. The noise in question is not unusual. The quality of a single bark does not change whether the bark is at my facility or at some other residence. There is not even any evidence that barking audible to someone other than me is more frequent from my facility than other residences. To call dog barking “unusual” is strange. There is no evidence that sound exceeds any residence at all. Gerry Ennis has not attempted to provide a reasonable definition of a “normal” residence. In Stuyvesant Falls, there is quite a range of residences. There are households with large numbers of dogs in Stuyvesant, some located closer to neighbors who have filed against me than I am.

I have worked to bring professional mediation services to Stuyvesant in neighbor-to-neighbor disputes. Rather than continue to persecute my family and me, I would hope the zoning board would consider joining me in calling on the town board to invite Common Ground services to a town meeting to discuss professional mediation in neighbor-to-neighbor disputes.

In order to run a small family business, I should not need to be a public speaker. I should not need to be perfect. I should not need a large amount of home equity to borrow against to pay for lawyers. I should be able to run a small family business even if I were shy. I should be able to run the business even if I were to belong to a minority religion. I should be able to operate a business without unfair government interference even if I have political views at odds with the government. An owner of a business should be able to exercise his or her free speech rights and continue to sell pizza, board dogs, or do whatever it is that the business person does without interference. The government should not interfere with the operation of my business even if I am a complete jerk. The government doesn’t have to like me or me them. The government should butt out as much as possible. You, members of the zoning board, should vote to let business thrive and government to butt out unless there is some really pressing reason to jump in and some very compelling evidence of harm.

Here we a situation of a trivial complaint and zero evidence of harm. Time to butt out.

Here are some specific issues I would also like the board to consider:

Issues with the presentation by Mr. Jurkowski

1) Mr. Jurkowski spoke prior to the public comments as if he held a position of expertise in the subject of acoustics. He was given more time than other members of the public. This difference in treatment creates the false impression that he has some expertise in the matter at hand. I have seen no evidence that he has any professional credentials in acoustics. He does not have a degree in the matter at hand and should not represent himself as an expert in the field. He is no more qualified to speak on acoustics than a pediatrician is to remove my mother’s cataract.

2) Mr. Jurkowski did not give us his documentation in advance in order to allow our acoustic engineer to have an opportunity to respond.

3) Mr. Andria has already answered many or all of the issues raised by Mr. Jurkowski last night. Please note Ken Andria’s response to Mr. Jurkowski’s previous questions about the study. His legitimate concerns have been addressed.

4) Mr. Jurkowski made a number of errors in his presentation: 1) He failed to note that the relevant standard is that the noise from Glencadia Dog Camp cannot exceed the noise from a “normal residence.” 2) He failed to understand how the sound test was  conducted. 3) He did not understand the issue of increasing amplitude being dependent on the simultaneous barking of more than one dog and that this is an issue of probability not a flaw in the way the study was conducted. In order to increase the decibel level, more than one dog has to bark at the same time. Due to probability, the more dogs there are, the more possible a simultaneous bark becomes in theory. However, it is likely never possible to have all the dogs bark simultaneously. If you throw 30 pennies in the air, you might have one land on top of another, or even two on top of one to make a pile of three. If you throw 50 pennies in the air, the chances of 3 landing in a pile is somewhat higher. It would be very unlikely for all 30 or 50 pennies to land in a perfect stack. It is unfair to expect the test to include an impossible event, although Mr. Andria did include a calculation for such a “super bark” were this event ever to occur. Even in the event of a super bark, which is likely impossible, the decibels produced by Glencadia would not exceed those of a normal residence, given the levels recorded on the day of the test for the neighboring dogs. 4) If wind is a significant factor, then the noise is not loud. 5) There is no evidence that ambient noise is lower at 5pm than at 11am. 6) There is no reason to study the sound 1000 feet to the north, east or west. The minor variations in direction to atmosphere and topography are irrelevant in this case since the noise under consideration is below ambient noise levels.  To conduct the sound test in any direction other than south would have required Mr. Andria to stand in the middle of various owner’s fields.  7) Mr. Jurkowski stated that sound “decays with distance.” This is an insufficient statement. The correct expression would be that sound decays at the inverse square of distance. Given that fact, there was in fact no reason ever to conduct the sound test in the first place. The dog camp is 1000 feet from the nearest residence or public road. 8) Mr. Andria reviewed a list of standards from other jurisdictions and other areas of law in his original report and the noise calculated and measured from Glencadia was far below all of them.
5) Mr. Jurkowski has a conflict of interest in that I am leading the opposition to the town capital project that he will benefit from personally. His claim to be unaware of my role in opposing this project is disingenuous, as I have indicated my opposition to this project to him personally at public meetings on at least two occasions. He was in the room when I first called for a referendum in October 2010. I questioned him on this project at the 2011 July town board meeting. I paid for a mailing to all registered votes only a week or two before last night’s hearing. My name, blog and dog logo were on the mailing.
6) There is no reason to hire a local engineer who has not visited the site. Why not hire an expert in acoustics with no conflict of interest who lives anywhere else in the world if the engineer does not need to personally visit the site? If Mr. Jurkowski has problems with Mr. Andria’s study, then he can do his own with independent witnesses to observe the test. I would cooperate in any test proposed by Mr. Jurkowski.

In short, Mr. Jurkowski is probably the least qualified engineer available to speak on the subject. He is the only engineer I can think of with such a substantial conflict of interest. He has no credentials in the relevant area. By failing to provide a copy of his document prior to the meeting, by misrepresenting his qualifications in acoustics, by failing to accurately report Mr. Andria’s findings, by misrepresenting how the sound study by Mr. Andria was conducted, by declining to visit the site, by failing to take his own measurements with witnesses or visit the site, by failing to note the supporting comments of two Ph.D. acoustical engineers in addition to Mr. Andria, Mr. Jurkowski presentation was less than candid, open, fair and full.

Presenting my case thoroughly and fairly

At last night’s hearing, I was not allowed to present all the evidence I would have liked the board to see. This is unfair only because the board has expanded my appeal to include a laundry list of possible avenues to ruin my ability to provide a good life for my family.

If the board would agree to simply rule on my appeal, simply on the issue that Gerry Ennis did not have right to revoke my permit without giving me due process, simply consider whether or nor Mr. Ennis has provided sufficient evidence to justify his actions, then I would not need to give any additional evidence or make a long presentation. Since the board insists on heaping on additional and vague charges, I would like time to fully and completely present all the evidence I was unable to present at the last meeting. I would like to do my presentation, including audio, video and documents, with time to set up and without interruption. I feel that without a full disclosure of all the evidence I have, I have not been given a fair hearing. As I write this, you do not have all the evidence I would like the board to have.

Again, were this a simple appeal on the issues I raised, then there would be no need for additional evidence and I would not insist on a full airing of all the issues below. Again, as the board insists on expanding the scope of the hearing, I insist on expanding the scope of the evidence to consider. These are the issues I want considered, no other issues:

1) Is there any evidence that I ever produced any unusual noise that exceeds that produced by a normal residence?

2) Did Gerry Ennis have the right to revoke my permit without due procees?

I know I’m being a bit redundant on this, repeating those two point over and over. That’s all you have to rule on. Expanding my appeal beyond these issues is simply bizarre and un-American. If the board insists on considering issues beyond my appeal, then I insist on time to fully and completely present evidence to explain this bizarre and un-American situation.

I have evidence to sustain the following broad points:

1) All letters written to the planning and zoning boards in December 2010 and January 2011 contain false statements. No one has consistently and independently complained of dog barking. No one has credibly complained of loud barking. The board should consider the credibility or complaints and not assume they are credible without allowing me a chance to demonstrate that they are not.

2) The hostile environment created by the town government contributed to the willingness of people complaining to respond positively to a coordinated effort to gather complaints.

3) The complaints were gathered as part of a coordinated plan involving bad faith negotiations in December 2010 and January 2011, an effort involving town officials and complaining neighbors.

4) Gerry Ennis has manufactured, encouraged and manipulated the production of complaints.

5) David Everett has no legal standing to claim to be the attorney of record for the planning or zoning boards. Any decision taken with David Everett in attendance claiming authority as the attorney to the board is likely subject to challenge.

6) The public interest in reducing the climate of vigilantism, threats, racially charged internet posts, vandalism, denial of essential services, and surveillance far exceed any public interest in any charge laid at my feet or of continuing with this badly flawed and unfair process.

7) The inclusion of charges beyond my original appeal defies the essential purpose of the ZBA and is unconstitutional.

8) The science is absolutely settled and clear.

I do not feel I was given a full and complete opportunity to present the evidence I have that proves all of these items to be true. I believe I should be allowed to make the case I believe best explains the process before the board. I believe the combination of factors above, fully explored in an open hearing based on evidence, is the best way to understand how and why this process before the board is so deeply flawed, unfair, dangerous, anti-rational and unconstitutional.

If my appeal were limited to my issues, I would not insist on additional time to fully and completely present the case I have. The board should only hear my appeal, discard the additional charges. If the board does discard the additional charges, I will not insist on more time to present additional evidence.

List of objections

I would like to list my objections to various matters to be clear on my problems with this process:

1) There is no public interest in charges beyond the scope of my original appeal. Adding additional charges to my appeal flies in the face bedrock principles of American justice.

2) David Everett was hired illegally. The unexplained discrepancies in the process of retaining special counsel cast a shadow over the whole process.

3) Expanding the scope of my appeal is unconstitutional, unfair and turns the appellate function, the primary function of the ZBA, on its head.

4) Margaret Pino is a close relative of Valerie Bertram, someone I have sued in court and should consider recusal.

5) David Everett has supported the expansion of my business competitors in his role as chair of the Chatham ZBA and as such presents the impression of a conflict of interest and should consider recusing himself.

6) I have not been given adequate time to present the case I think best explains the problems with the list of additional charges.

7) There was no purpose in holding public comments, as Peter Lynch and I indicated prior to last night’s meeting. I believe the board’s insistence on public comments when the issue at hand is fundamentally jurisdictional unnecessarily stoked hostility in a situation already rife with threats, vandalism, and malice. The board should consider the public interest in fairness, public safety, the constitution and the rule of law when addressing this matter in the future, as this board as well as other organs of town government have disregarded the important issue of the safety and mental health of my family in the past, not to mention our right to our property.

In conclusion, this process, from Gerry Ennis’s illegal revocation of my permit a year ago to me finding my appeal transformed into a witch hunt, is an absolute disgrace. The complete lack of fairness, respect for the rule of law, and fundamental principles of American government is positively shocking. To continue to use every agency of town government to harass and harm my business, my family and me is utterly indefensible, counter productive and dangerous.

The proper role of the ZBA is to hear my appeal and rule on the substance of my appeal and nothing more. Ruling on the jurisdictional and evidence questions I posed in September 2010 is fair. Doing anything else is unfair. I want to know: 1) Did Gerry Ennis have the authority to unilaterally revoke my permit? 2) Is there any evidence that my business produced an unusual noise that exceeds that produced by a normal residence?

Rule on my appeal. Stop the witchhunt. Government does not exist to pursue anything other than the public interest. There is no public interest in continuing this madness.


Will Pflaum
PO Box 40 / 3 Rybka Road
Stuyvesant Falls, NY 12174

From an email about this post:

Will, one more thing about the town engineer's statement: he stipulated that the audio engineers could not perform one of their tests because of dog-barking noise from the town road. In saying so, he basically has stated that the TOWN ENGINEER has stipulated to the facts presented by the audio engineer that the level of noise on the road off of your property is measurable and emanates from barking dogs. Ask your lawyer about this, but the next obvious question is, where are the complaints filed against those dogs? Where are your neighbor's complaints filed against those dogs? If they are not extant, then it kind of proves the point that you are being blamed for the noise of all the town's dogs barking because you have a dog camp.

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