Wednesday, January 27, 2016

letter to the town of stuyvesant

revised here or if that doesn't work, try this but I think THIS VERSION is the best and now the town has uploaded a pdf...

Basically, after losing in state court twice, the town seems to be trying to re-write the law and start the dog war back up. I think it's a mistake and would prefer peace. Here is my letter to the town:

Wednesday, January 27, 2016

Town of Stuyvesant
Town Board, Planning Board, ZBA, ZEO
5 Sunset Drive
P.O. Box 33
Stuyvesant, NY 12174

To the members of the boards of Stuyvesant and the zoning officer:

In 2013, New York Supreme Court Judge Hon. Henry Zwack, ruling against the town of Stuyvesant noted that, “It is well established that inasmuch as a violation notice is akin to a criminal proceeding, the notice must comply with the requirements of Criminal Procedure Law ... Every element of the charge must be supported by non-hearsay allegations, and an improper information is a jurisdictional defect, warranting dismissal of the notice.”

The court further criticized the town’s handling of the matter of Glencadia Dog Camp, finding, “Stunningly, not one of the procedural requirements of the zoning ordinance were followed. This, in and of itself, requires dismissal of the Notice of Violation… With respect to petitioner's charge that he has been unfairly targeted by the Town because he has been vocal in his criticism of it through his blog, there does appear to have been a disproportionate amount of time and money spent on this violation notice... What the records do not reveal is a real issue with dog-barking.”

In 2012, Hon. Patrick McGrath found, also pertaining to the same general matter, “The general rule is that a determination or a zoning board of appeals should not be set aside unless it is illegal, arbitrary and capricious, or an abuse of discretion… As a matter of statutory construction and based on the case law cited above, the Court finds that the ZBA’s determination was made in violation of lawful procedure and is affected by an error of law.”  The error of law in this decision pertained to the town’s claim that the ZBA and ZEO had the right to revoke a permit issued by the Planning Board under New York State Town Law. In the 2012 finding, the court did not allow the town to making a finding as to a matter not on appeal to the ZBA.

Thus, in two decisions, in 2012 and 2013, New York State Supreme Court judges have rendered rulings on Stuyvesant zoning. Notably, Hon. Zwack criticized the actions of the zoning officer Gerald Ennis (if not by name) as “stunningly” outside the law. Hon. McGrath found that the ZEO and ZBA acted illegally.

Subsequent to two lawsuits and the expenditure of more than $300,000 in legal fees over two years by a town with an annual budget slightly over one million, the town of Stuyvesant took no action to reprimand or re-train Gerald Ennis to assure that future enforcement is not so far beyond the law. The town also did not address the failings of the ZBA to assure more narrow and legal findings in the future.

Now, in 2016, the town proposed to change the zoning law in the exact areas addressed in the aforementioned decisions. Rather than address the shortcomings in the process identified by two New York State judges to make the process more fair and open, the proposed changes to the local zoning law seemed designed to allow the ZBA and ZEO to act in an arbitrary and unfair way without being tripped up by the local law.

One proposed change would allow the ZEO to accept anonymous complaints (see draft page 44 item number 4). This change directly challenges the spirit and letter of the Hon. Zwack’s decision. The court was “stunned” that the ZEO revoked my permit without any complaint by any neighbor. The current ordinance does not allow anonymous complaints. The new change would empower Mr. Ennis, already rebuked by the court and the instigator of a process that caused some $300,000 in needless expenditures, to be more arbitrary than he was before.

Another proposed change would make it easier for the ZEO and ZBA to revoke home occupation permits, the subject of the two decisions above. Given that two illegal revocations, once by Mr. Ennis in August 2010 and once by the ZBA in September 2011, gave rise to multiple lawsuits that the town lost, the town seems to have gone back to the drawing board to make sure they can act as arbitrarily as in the decisions above but without running afoul of their own ordinance. Please see proposed changes on the draft on page 45 and wherever the work “revoke” might appear in the draft document.

The other provision that I am concerned about is on page 33 of the draft pertaining to noise. The copy in the draft reads, “No noise emanating from the business which is excessive, unnecessary or unusual due to volume, intermittence, beat frequency or shrillness, such that the same shall be perceptible outside the property from where it originates, shall be permitted.” You tried to prosecute me under an “unusual noise” provision and couldn’t get very far since dog barking is not unusual nor is it, at 1000 feet, at all loud. In that process, I sent you copies of the noise provisions of many jurisdictions, all of which have decibels written into the law. A noise ordinance without a DB reading is an arbitrary invitation to abuse. Coming off two loses in court based on a provision that was too vague to be enforced, you seem to be re-writing the provision to be even more vague. If you put a decibel reading in a noise provision, then you could probably find a way to enforce it. As written, and given the Zwack decision, this provision may no more enforceable than the current provision. Obviously, none of these provisions of the zoning law would apply to my facility if passed into law, given the law and science as provided to you in the course of various lawsuits. Thus, I am speaking about a hypothetical enforcement of some other issue in the future.

Rather than trying to wiggle out of New York Supreme Court rulings and continue to operate in an arbitrary and illegal manner, the town should seek to comply with the letter and spirit of these decisions. The provisions as to revocation with only cursory appeal seem not to conform to the decision in the Zwack ruling. The noise provision only exacerbates an unenforceable law pertaining to quantifiable phenomenon, noise, that you chose not to quantify.  A permit holder needs to have a constitutionally valid process in terms of non-arbitrary statues and legally valid processes. Evidence cannot be secret or anonymous. This provision is asking for more trouble and encouraging more false, malicious and racially motivated accusations. Please consider the words of the Zwack ruling as to Mr. Ennis' behavior in the instant case. The permit holder must be allowed to cross examine witnesses, and all the other equal protection provision specifically mentioned by Hon. Zwack in his decision that was written precisely for the town of Stuyvesant. Given the above history in enforcement in town, these changes to open up more apparently unfair procedures seem ill advised in the extreme.

I personally would not be subject to any of these changes as my permit is a nonconforming legal use allowed by case law. Please note, in particular, the matter of Town of Orangetown v. John F. Magee et al., (88 N.Y.2d 41 (1996), 665 N.E.2d 1061, 643 N.Y.S.2d 2) pertaining to a change in a zoning ordinance prejudicial to a permit holder, the court held that “the permit was revoked solely to satisfy political concerns” and restored the permit as a nonconforming legal use with costs to the permit holder. Case law is quite clear more generally, as long as I continue the approved use, which I am not doing and plan to continue for many years to come, and as the use involves considerable investment and is consequential to me economically, the town cannot arbitrarily change the law to prejudice an ongoing use.

In short, I hope the town board considers avoiding changes to the zoning ordinance that may lead to more unnecessary conflict and expense and the the town. The zoning law should be consistent with basic constitutional principles of fairness. The court decisions should guide the town’s revision on matters adjudicated so as to assure an enforceable, fair law. Tranquility, fairness, and peace would be served by a less punitive, more open, approach that seriously considers the words of two judges and attempts to honestly put the spirit and letter of those decisions into practice as town policy. Let's try to get along.  

Thank you for your consideration.

Will Pflaum

PO Box 40

3 Rybka Road

Stuyvesant Falls, NY 12174


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