NEW SCOTLAND — A civil lawsuit against the town’s planning board has been dismissed by Supreme Court Justice William E. McCarthy.

The planning board’s decision in September to grant a special-use permit to allow Mary Ferentino to operate a dog-training and boarding facility on her Fielding Way property off of Krumkill Road still stands.

The Dimura family and a few other neighbors challenged the board’s decision in court, claiming that the board acted capriciously and arbitrarily, and abused its discretion. They petitioned for the courts to annul the planning board’s decision.

The Dimuras main contentions centered around the private road of Fielding Way, which they say they own. In order to access the Ferentinos lot, cars have to drive over the Dimuras’ property.

Attorney John Hayko, representing the Dimuras, argued in court papers that it was irresponsible of the planning board not to address the validity of the easement. Also among the complaints is that the Ferentino property does not have the required road frontage for a commercial venture, that the property had existing violations making it ineligible for a special use, and that it was irresponsible of the planning board to condition the special use on the roadway being modified to accommodate two-way traffic and to meet all the other town road standards when the widening of road would have to be agreed on by Dimuras who are against it.

Hayko’s petition also references all the area residents who attended the public hearing held by the planning board to speak against approving the dog kennel because of concerns about increased traffic and the noise from the dogs.

The planning board’s attorney, Louis Neri, advised the board in September at the time of the application that the neighbor’s dispute over of the extent and limitation of the right-of-way was out of the planning board’s jurisdiction, and that the board could move forward on making a declaration simply on the special use.

When the town was sued, listing all the planning board members as respondents, the town board hired attorney Peter Barber to handle the case. Barber responded to the suit by asking the court to dismiss the petition without stating any specific grounds for such relief.

New Scotland’s planning and zoning board historicially has rarely been sued, the last case was in 2003 by Tower Ventures, a cell phone tower company.

Judge’s decision

Judge McCarthy ruled in the town’s favor, saying that the nature and character of the easement is a matter of a private agreement, and the planning board’s granting of a special use is a legislative enactment, so that they are separate and distinct matters.
"The issuance of a permit for a use allowed by a zoning"may not be denied because the proposed use would be in violation of a restrictive covenant," meaning a private agreement, McCarthy’s decision reads. He said the exception to the general rule applies to building permits and subdivision approvals but not special-use applications. McCarthy repeated this a number of times in his decision, clearly indicating that the Dimuras would have had a much stronger case if the Ferentinos had been requesting a subdivision approval.
"It was neither arbitrary nor capricious for the planning board to defer to the Supreme Court the issue of the extent, if any, of the applicant’s right to improve the road or driveway," McCarthy writes.
"The planning board would have acted unreasonably if it had required the applicant to upgrade the driveway and obtain a variance [from the zoning board for frontage] "before they even knew if the planning board would issue a special use permit to operate a kennel," McCarthy continues.
The Dimuras believe that the Ferentinos have a prescriptive right to use Fielding Way for residential ingress and egress only, and that the Ferintinos’ property has never been granted any official easement. The right-of-way exists "by necessity," Hayko argues, but a deeded right of way was never granted by a predecessor.

Separate suit

A separate civil suit filled In November by Halina C. Dimura, Daniel and Susan Dimura, and Joseph Dimura Jr. against Mary and Gregory Ferentino seeks a declaration from the court that they own the driveway free and clear, and that the Ferentinos be restrained from entering any part of Fielding Way, or if the Ferentinos have any right to use Fielding Way, that their right be limited to accessing their land.

The Dimuras are also suing the Ferintinos for already paving the road without their permission. They want the courts to declare that the road be restored back to the way it was at the Ferentinos’ expense, and to declare that the Ferentinos do not have the right to widen the road to meet the town’s road standards for a business. This case is still pending.
In the case against the planning board, Judge McCarthy wrote that the planning board does have the right to condition the special-use permit on improving the road. However, he said, "The special use permit does not require the petitioners [Dimuras] to allow the Ferintinos"to improve the driveway" nor does it authorize the Ferintinos to improve the road over the Dimura’s objections, McCarthy writes.

Other objections

Hakyo also argued that it was irresponsible for the planning board to issue a permit, when there were outstanding violations. Hayko said that the Ferentinos have been operating a dog-training business for a number of years on the Fielding Way property without a permit from the town. The judge wrote that, while he believes that they have offered dog-training classes in the past, the Dimuras did not prove that the violation was continuous from when the permit was issued.

McCarthy said that the only issue raised by the petitioners of serious concern to him is noise. But, he wrote he believes that the proposed kennel is on a large enough parcel surrounded by woods with the closest residence being 500 feet away, and the planning board placed conditions on the special use to reduce the noise. Dogs are to be housed inside and will only be let outside in small numbers, in screened in dog runs, the planning board stipulated.

The noise would not appear to exceed that which might be made by other uses permitted in this neighborhood such as agriculture or a home with a large number of dogs, McCarthy declared.

In response to the petitioners allegation that the character of the neighborhood would be adversely affected by a kennel, McCarthy said a kennel is already a permitted use in this zone, a legislative determination by the town board that this use is consistent with town general zoning plan so its legislatively determined that this use will not adversely affect the neighborhood.

The Dimuras failed to establish that the board’s decision was capricious or contrary to law so, McCarthy writes the court is ordering the petition be dismissed in its entirety.

Response

Hayko responded through his secretary to The Enterprise last week that he has no comments about the dismissed case until he speaks to his clients about their next action.

Susan Dimura of Fielding Way told The Enterprise that she doesn’t want to comment right now about the suit against the town because they have just received and are dealing with their new property assessment; she doesn’t want to create any enemies, she said.

Town Councilmember Richard Reilly, who has served as the liaison to the planning board, told The Enterprise that the town board throughout the civil dispute has most certainly stood by the planning board’s determination. Reilly said the town board believed that the planning board had done everything it needed to when addressing the special-use application.
Planning board Chairman Robert Stapf said that he did not see the suit against his board affect its members morale at all. Everyone felt "what we did was reasonable and followed the letter of the law," Stapf said.

The board thought it took precautions to mitigate noise with the structures, buffer zones, and vegetation, Stapf said. And the board placed a number of specific conditions on the approval that still need to be met prior to a building permit being issued, Stapf said.

Meeting the condition of improving the roadway, is now contingent on a decision from the State’s Supreme Court on the rights of the right-of-way, something outside of the planning board’s jurisdiction, Stapf said.

Stapf said he doesn't see the dismissal as a big win because litigation is an expensive cost for the town. He added though, that anyone who disagrees with a planning-board determination does have the right to challenge it.
"We did the best we could," Stapf said.