At the recent Lancaster Town Board meeting I addressed the board as follows.
Two and on-half months ago I submitted a letter to the town board requesting information on whether approved site plan conditions are enforceable.
The correspondence I submitted listed the conditions that were instated on approved Wal-Mart site plan and asked whether they were enforceable. Fifteen (15) of the twenty three (23) conditions had to do with meeting conditions that had to with receiving an occupancy permit that would allow the store to operate. The eight other conditions agreed upon by Wal-Mart, the Town of Lancaster and the Northwood Association Board (representing the residents living next to the Wal-Mart) were conditions that were instated and agreed upon by Wal-Mart to protect the quality of lives of the neighboring residents thereafter and to maintain the conserved area that was deeded to the town.
Two months ago this board told me they would send a copy of the plan agreement I submitted to the town with the list of the conditions. I asked at a following meeting whether Wal-Mart responded and was told, “Not yet.”
It has been a month later and I am asking again whether Wal-Mart has responded.
Supervisor Dino Fudoli: No.
Chowaniec: Are these conditions enforceable? Wal-Mart has been a good neighbor until this past summer. Something changed. The board declared at the one meeting that perhaps there was a change in management and the new manager was unaware of the responsibilities. That is why they were contacted by the town and reminded of their agreement.
Fudoli: I don’t know about the Wal-Mart site plan and conditions as I was not in office back then (2008). I don’t know what ground rules were made. I don’t know if they put any teeth into the conditions being enforceable so you would have to ask the board members who were then present. Council members Stempniak and Ruffino were here at that time.
Chowaniec: Mr. Abraham was also on the board. He and Mrs. Stempniak voted against site plan approval. It is disturbing to me that the town is not being more proactive as they have skin in the game. The town was deeded the 65-foot conserved are that lies between the Wal-Mart and the adjoining community properties. Wal-Mart has agreed to maintain that area and it did not this past summer. They did not pick up the litter in the area; litter that then finds its way onto our property. Wal-Mart has never replaced a tree or plant that has died in the area. They have never removed the dead trees that have fallen onto our area and our landscapers had to remove them.
When the site was being cleared for Wal-Mart construction, the conserved area was incorrectly measured off, a silt fence incorrectly placed and numerous trees were killed off then or later on from having root damage. The Association had been quiet trying to be good neighbors in turn. But have someone examine the conserved area and see how many dead trees there are.
A resident who lives along William Street approached the Wal-Mart manager and asked why RV’s and tractor trailers are now allowed to park overnight on the Wal-Mart property. The manager produced a copy of a Wal-Mart policy document that claimed Wal-Mart allows such overnight parking. Maybe as a general rule, but the site plan condition for this Wal-Mart says no overnight parking. Overnight parking has occurred on the Wal-Mart in the past, but infrequently this past year so frequent that calls have been coming in from our association residents because of noise from engines running; and their fumes.
Wal-Mart had eight (8) storage containers placed at the location several weeks before Christmas and there are still four storage containers on the site the last week of January. The site plan conditions declare that they are not allowed. It was disturbing to hear this board ask the code enforcement officer if they got a permit to have them there. Site plan conditions say they are not allowed. Why would the town give them a permit if site plan conditions are enforceable?
So, if Wal-Mart does not respond and agree to the conditions set in the site plan, what is the town going to do about that?
Councilman Mark Aquino: Tell me direct John (Town Attorney Dudziak)…it shouldn’t be hard to do some research concerning what plan conditions are; whether they are enforceable; how are they enforceable. Let’s get an answer and if we can enforce them I am all for it. I don’t know the answer and I don’t think the town attorney knows the answer. I think they are, but I don’t know. I would like to get an opinion from council and have this addressed by the next meeting.
Chowaniec: We don’t want Wal-Mart cited. We just want them to understand that they agreed to the conditions, that that are enforceable and want them to go back to being the good neighbors they have been prior to this year.
Town Attorney John Dudziak: You wanted us to address Wal-Mart on the conditions they were not abiding by but you did not mention what they were. Is it parking, or what?
Aquino: It’s in the plan.
Chowaniec: Nonsense. I mentioned the same four conditions not being met at prior meetings – overnight parking, not maintaining the conserved area (litter and dead tree/plant removal and replacement), tractor trailer deliveries from William Street, and storage container use.
Keep in mind that I am using Wal-Mart site plan conditions here as an example. I am talking about all site plan approvals; not instated conditions have been met before a residential or commercial development is completed and receives an occupancy permit, but where long term conditions are instated to protect the quality of life and best interests of the adjoining community thereafter.
If those long term conditions are not enforceable, then the town has been disingenuously using them as a placebo to placate residents who voice concerns about a proposed project adjacent to their property. Stop telling concerned residents that you are going to put in a condition that has no teeth.
Why hasn't the building dept. cited them for violating the conditions that were imposed? Isn't that the way a town enforces its land use rules? Sounds to me as if your town is too lazy to do anything. Town attorney probably afraid town will get sued and then he'll have to answer for the outcome.
Three times I have asked the question whether site plan conditions are enforceable and still no answer; how disturbing to me and many others and how embarrassing that should be to our town officials who put the conditions in the plan.Originally Posted by grump
And just now they commission the town attorney to do research and come back with an answer. The same town attorney who gave me his personal opinion at one meeting that he did not think violating the conditions was a big deal.
It's not laziness Grump, it's blowing smoke up our asses one more time. Look what we just put in writing to protect your property rights BS.
If I don’t get an answer at the next town board meeting it’s off to the State Attorney General’s Office for clarification.
PEOPLE v. GEBBIA, 2011-1246 N CR (2d Dept 5-9-2014)
2014 NY Slip Op 50808(U)
The People of the State of New York, Respondent, v. Laurie Gebbia,
Appellant.
2011-1246 N CR
Appellate Term of the Supreme Court of New York, Second Department.
Decided on May 9, 2014
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from a judgment of the District Court of Nassau County, Second
District (Norman Janowitz, J.), rendered December 9, 2010. The judgment
convicted defendant, after a nonjury trial, of maintaining a fence on her
property without a building permit or certificate of completion.
PRESENT: NICOLAI, P.J., MARANO and GARGUILO, JJ.
ORDERED that the judgment of conviction is affirmed.
The record shows that, after defendant had received a variance and had
been issued a building permit to erect a fence on her property, she was
informed in a letter from the Town of Hempstead's Building Department, dated
September 21, 2009, that her building permit had been revoked since it had
been determined, based on an inspection of her property and a review of
Building Department records, that the fence that had been constructed under
the permit was not located where defendant had indicated it would be on the
site plan that was submitted as part of her application for the permit.
Subsequently, defendant was charged in an information, dated June 8, 2010,
with maintaining a fence on her property without the required permit, in
violation of Hempstead Town Code § 86-9 (A) (1). After a nonjury trial,
defendant was convicted of the charged offense.
Defendant's contention that the evidence was legally insufficient to
establish her guilt is unpreserved for appellate review (see CPL 470.05 [2];
People v Gray, 86 NY2d 10, 20 [1995]). In any event, viewing the evidence in
the light most favorable to the People (see People v Contes, 60 NY2d 620,
621 [1983]), we find that it was legally sufficient to establish defendant's
guilt, beyond a reasonable doubt, of violating Hempstead Town Code § 86-9
(A) (1), in that, on the date alleged in the information, defendant
maintained a fence that was either entirely or partially on her property
while her building permit therefor had been revoked and without obtaining
the required certificate of completion (see Hempstead Town Code § 86-16
[C]). Contrary to defendant's contention on appeal, it was not the People's
burden under the Hempstead Town Code to demonstrate a valid basis for the
revocation of the building permit, i.e., that the fence was not actually
located where defendant had indicated on her site plan that it would be. We
need not pass upon whether defendant could have challenged the validity of
the revocation of the permit to build the fence as an affirmative defense to
the criminal proceeding since, in any event, she failed to make any such
showing at trial.
Upon the exercise of our factual review power, we are satisfied that the
verdict of guilt was not against the weight of the evidence (see CPL 470.15
[5]; People v Danielson, 9 NY3d 342 [2007];
Page 2
People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d 490, 495
[1987]).
Defendant's claims of selective enforcement and malicious prosecution are
not preserved for appellate review. In any event, such claims are not to be
considered as affirmative defenses to a criminal charge, to be determined
together with the issue of guilt by the trier of fact, but, rather, they
should have been addressed to the court before trial in a motion to dismiss
the prosecution upon constitutional grounds (see Matter of 303 West 42nd St.
Corp. v Klein, 46 NY2d 686, 693 [1979]; People v Goodman, 31 NY2d 262,
268-269 [1972]; People v Carter, 86 AD2d 451 [1982]), which defendant failed
to do. As to defendant's remaining contentions, they are either raised for
the first time on appeal or dehors the record and, thus, we do not consider
them (see People v Bregaudit, 31 Misc 3d 152[A], 2011 NY Slip Op 51136[U];
[App Term, 9th & 10th Jud Dists 2011]).
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Marano and Garguilo, JJ., concur.
IN RE OAKWOOD PROPERTY MANAGEMENT, 103 A.D.3d 1067 (3d Dept 2013)
2013 NY Slip Op 01310, 960 N.Y.S.2d 535
In the Matter of OAKWOOD PROPERTY MANAGEMENT, LLC, Appellant, v. TOWN OF
BRUNSWICK et al., Respondents.
No. 514922.
Appellate Division of the Supreme Court of New York, Third Department.
February 28, 2013.
Appeal from an order and judgment of the Supreme Court (Devine, J.), entered
January 23, 2012 in Albany County, which, in a combined proceeding pursuant
to CPLR article 78 and action for declaratory judgment, among other things,
granted respondents' cross motion for summary judgment and dismissed the
petition/complaint.
Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of counsel), for
Appellant.
Tuczinski, Cavalier, Gilchrist & Collura, PC, Albany (Andrew Gilchrist of
counsel), for Respondents.
Before: Mercure, J.P., Stein and McCarthy, JJ.
Egan Jr., J.
Petitioner operates a landscaping and mulching business in the Town of
Brunswick, Rensselaer County. In April 2002, petitioner obtained site plan
approval from the Planning Board of respondent Town of Brunswick to operate
its business on a five-acre parcel of land zoned for industrial use. Shortly
thereafter, petitioner purchased an adjoining 43-acre parcel that fell
within a "Schools and Cemeteries" zone as depicted on the Town's zoning
map[fn1] and, in 2004, acquired an abutting 26-acre parcel zoned for
agricultural use. As each parcel was acquired, petitioner expanded its
operations accordingly and, as the business grew, neighboring property
owners began to complain of noise and other issues.
In June 2007, respondent John Kreiger, the Town's Code Enforcement
Officer, sent a letter to petitioner expressing concern that petitioner's
business had expanded beyond the scope of the original site plan. No
response from petitioner apparently was forthcoming, prompting Kreiger to
advise petitioner in July 2008 that it was in violation of its approved site
plan and directing petitioner to submit an amended application with respect
thereto. Petitioner submitted the requested application in October 2008 and,
when the Planning Board convened in November 2008, the application was
adjourned at petitioner's request to allow petitioner to compile "additional
Page 1068
information."[fn2] The matter thereafter was tabled several times and, in
January 2009, was "adjourned without date[] pending further research
regarding zoning compliance matters."
In June 2010, Kreiger issued a notice of violation alleging that
petitioner was conducting operations on the 43- and 26-acre parcels without
the required approvals and, further, had exceeded the bounds of the 2002
site plan approval with respect to the original five-acre parcel. Petitioner
appealed that notice of violation to respondent Town of Brunswick Zoning
Board of Appeals (hereinafter ZBA) and, while that appeal was pending,
Kreiger issued a second notice alleging various violations of the Town's
zoning ordinance. Petitioner appealed that notice of violation as well, and
the appeals were consolidated for purposes of the public hearing conducted
by the ZBA in August 2011.[fn3] At the conclusion of that hearing, the ZBA
issued a detailed decision sustaining the notices of violation and
dismissing petitioner's appeals.
Petitioner thereafter commenced this combined CPLR article 78 proceeding
and action for declaratory judgment seeking, among other things, to annul
the ZBA's determination and a declaration that the "Schools and Cemeteries"
designation as depicted on the Town's zoning map was unconstitutionally
vague. Following interim motions not at issue here, respondents answered and
counterclaimed to permanently enjoin petitioner's operations. Petitioner
then moved for, among other things, summary judgment on its declaratory
judgment claims and dismissal of respondents' counterclaim, and respondents
cross-moved for, among other things, summary judgment and dismissal of the
petition/complaint. Supreme Court denied petitioner's motion, granted
respondents' cross motion and dismissed the petition/complaint. This appeal
by petitioner ensued.
We affirm.
it appears that site plan conditions can be the basis for a violation notice and a criminal prosecution.
Notice who got screwed - "The People of the State of New York, Respondent, v. Laurie Gebbia" - now this was because the "Government/People"(Controlling Members) went after her.(The tax payers)
The question here is with Walmart is - "When our local Government sets conditions on to a building permit/development approval - are they enforceable ? If they are - who enforces them - why aren't they being enforced"
Maybe because Topps/Ahold/American Sale donates so much to help Lancaster's Controlling Members - they get a pass !
But then again - like the Store/Plaza built at Aurora and William street - the owner had a storage building and dumpster where they weren't supposed to be. But because he bought the property from our Town Attorney and went to a Town Board Meeting to promise a lawsuit - based on his claim part of the reason he bought that corner was he was assured no interference from the Town Board. He stated straight out the Town Attorney assured him of this and he would testify to that in court.
The reason the man had concerns was he heard the man the Town Attorney bought it from was denied the building of the same type project - on that same corner.
It all depends on which side of the controlling fence you live on or in the case of Walmart - where you make your donations.
#Dems play musical chairs + patronage and nepotism = entitlement !
4248 is right Lee - just give up, go home, and type your frustrations on your computer - there is nothing you can do - you are just an emasculated peon that those of us who run the world ignore as we go about our lives. And besides, it is so much easier to rant and rave on the internet than it is to actually get up off your arse and do something to change your life and the world around you.
That's not at all what I stated - people like you want people to feel disenfranchised !
I don't - I am now more empowered than I ever was ! I have been educated and help educate and expand the interests of others.
When I was a Party Follower like some people - I was lead - not educated - I was being used as so many others have and are. I don't need any group or label to validate my life or positive dead's. My mistakes are mine - my wins are won by me - my life is mine and that of my family and true friends.
I recommend everyone get involved - just keep your eyes open and count your fingers every time you shake hands with a Politician/Party Playin Lawyer.
#Dems play musical chairs + patronage and nepotism = entitlement !
Thank you nogods for providing examples that make the case that site plans are enforceable. This individual is going nowhere; rather will keep pursuing this because this town has left itself wide open to claims of bad governance by not enforcing its zoning codes, failing to enforce town codes inconsistently or not at all, and blatantly acting in the best interest of developers and business entities and not its residents.
Wal-Mart is but one example where a resident was told (me here), "Well, what do you want us to do shut the business down." Glory be Wal-Mart's assessed property valuation is $12.5 million. They pay a lot of taxes and have no children going to school. Well, the townhome association I reside in has 124 units, has an assessed valuation of $16.5 million and has only a handful of children attending Lancaster schools. I would think that would entitle us to equal consideration and the right to request the town honor the conditions it set for Wal-Mart in the approved site plan; and agreed upon by them.
How dare we ask to have our property rights protected?
How dare residents throughout the community appear at town board meetings complaining about overburdened roads, flooding and drainage issues, infrastructure improvement needs, low water pressure issues, etc. It was just a few years ago when some of us so-called obstructionists were told by the previous supervisor that our complaints were ill founded. Then wrap it all together in the waste that occurred in past administrations by the police/courts building fiasco, the fire contracts, etc.
The question on site plan condition enforcement will open a can of worms regarding land usage. But what do us unwashed gadflies know; a group made of individuals from all party affiliations and blanks joined and acting for one purpose - good governance and community best interests first; otherwise known as Utopia in today's corrupt New York State.
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