Altamont ZBA delays appeal decision after Stewart’s says Provencher is biased

Enterprise file photo — Melissa Hale-Spencer

Carol Rothenberg’s Victorian home is next to a turn-of-the century home, at far left, just visible behind the tall pine tree. If Stewart’s plan goes through, the back of the new store will be within 13 feet of her property line.

ALTAMONT — A last-minute request on May 14 made by Stewart’s Shops, seeking to have zoning board of appeals member Kathryn Provencher recuse herself from anything having to do with the company’s proposed Altamont Boulevard project, left a surprised board searching for answers.

The board set a follow-up date, May 28, to hold another meeting.

While Provencher had spoken against the rezone, another zoning board member, Tresa Matulewicz, had spoken in favor of the rezone. Matulewicz’s comments were made before her appointment to the board. Provencher is a 20-year member of the board.

The board has five members and one alternate. To make decisions, a majority — three votes — is needed.

The May 14 meeting took place at the request of resident Carol Rothenberg, who was appealing a decision made by village Building Inspector Lance Moore that the proposed Stewart’s project should be classified as a convenience store rather than a gasoline service station.

Rothenberg, whose property line would be just 13 feet from the rear of a new building, in her appeal letter to the zoning board wrote that Moore had “incorrectly determined the proposed use of this property to be a ‘convenience store’ rather than a ‘gasoline service station.’”

In Guilderland, to cite just one example, the town has taken what in Altamont is a binary choice — convenience store or gasoline service station — and given zoning and planning board members more options to choose from: automobile service station; convenience store, food only; and convenience store, gas.

In Altamont, the convenience store - gasoline service station distinction is important because, when an applicant applies for a special-use permit or a site-plan review, if the proposed project were a convenience store, the planning board would have only one explicit special standard or requirement that would have to be met: “Outdoor storage of any stock or other material or outdoor display or sale of any goods shall be prohibited, unless stored or displayed within four feet of the building perimeter.”

A gasoline service station, on the other hand, has 16 special standards and requirements that have to be met, for example, “no building or other structure, except a fence, shall be closer than 50 feet to any lot in a residential district or any other lot used for residential purposes.”

For Rothenberg, the difference between a gasoline service station and a convenience store is that the proposed Stewart’s “convenience store” would be just 13 feet from her property line. Conversely, if the project were determined to be a “gasoline service station,” the only thing that could be within 50 feet of Rothenberg’s property line is a fence.

But the only thing that happened for Rothenberg on May 14 was that her appeal letter was read into the record; her challenge was trumped by one from Stewart’s.

Stewart’s says Provencher​ should recuse herself

The emailed letter from Stewart’s had arrived in the village’s inbox at about 2 p.m. on the day of the meeting.

Stewart’s was requesting that Provencher recuse herself from all matters that would impact Stewart’s pending application before the zoning board, including the Rothenberg appeal.

The request was being made, the letter stated, because, at the December 2018 village-board meeting and public hearing on the proposed rezone of 107-109 Helderberg Ave., Provencher was on the record speaking in opposition to the rezone.

The village board decided at that meeting, in a 3-to-2 vote, to rezone the residential property, located between Stewart’s Shop and Rothenberg’s house, as commercial, paving the way for the Stewart’s expansion.

The Stewart’s letter further stated that the December 2018 rezone request was made by the company to further the very redevelopment currently before the zoning board and the subject of Stewart’s variance application as well as Rothenberg’s appeal.

In addition, the letter stated, Provencher had signed a petition in opposition to Stewart’s application to rezone 107-109 Helderberg Ave.

Stewart’s believes, the letter stated, that recusal “would be well supported” given “the benefit” of avoiding even the appearance of any impropriety and to safeguard the administrative process.

As for what precipitated the recusal request, Provencher, at the December 2018 public hearing, said: “Thank you for your patience and listening to everybody tonight. I know, [Mayor] Kerry [Dineen], that you said to try to summarize what other people have said that you agree with and I will try to do that.

“One of the things I’d like to say is, I was also one of the people who served on the comprehensive plan committee. I’d like to add that to what others have said, that that was a long process that involved surveys, talking to specific groups in the community and also a public hearing to approve it, like this public hearing — so there was a lot that went into it.

“And so, I really support the idea that, if we believe that that plan needs updating, that it be done in a similar process. Not by making decisions piecemeal as a particular individual or organization or business in the community decides that they have a specific need. I don’t think that the way to improve upon the plan is this process.

“And also, I’d like to say that there’s been a lot said about the neighborhoods, how it affects neighborhoods. And I would ask [Trustee] John [Scally], thank you for what you said, you know what it’s like to live on the edge of the business district. I don’t know where everybody else on the board lives, but I would ask you to consider what it’s like for those neighbors to have purchased homes, to have made their home there, and to find out that their neighborhood is going to change because of this process.

“And I would ask that you vote against it. I really love some of the ideas about working with Stewart’s or about engaging the community, again, in a process to update the plan if that’s what we need. And I’d like to reiterate that this is not about whether we want a bigger or better Stewart’s; [it] is about whether we want to rezone in this way.”

Later in the meeting, Provencher spoke again, saying, “The question I have is about what are the criteria that you use when you make this [rezoning] decision. As on the zoning board, when we make the decision to make a variance, there are specific criteria that we have to go through and I wonder what those criteria are…”

The zoning board chairman, Maurice McCormick, said at the May 14 meeting that Provencher had gone before the village board before any decision was made on rezoning 107-109 Helderberg Ave., adding that the petition had been signed well in advance of any decision as well.

Leah Everhart, an attorney with Miller, Mannix, Schachner, and Hafner, speaking on behalf of Stewart’s, told McCormick that a member of the zoning board can speak out on any application as he or she sees fit; all are members of the community. And, just because someone serves on the board, that doesn’t mean that member loses his or her ability to speak about an application, Everhart said.

However, Everhart said that Provencher, as a result of taking a position contrary to the applicant’s position, shows “there is at least an appearance of bias.”

And as a result, what is typically done, she said, is that, when the application the member has spoken against comes before the board, the member will recuse herself because “either there’s an actual indication of bias, or because there’s a possibility that it could be viewed as bias.”

Stewart’s, Everhart said, was not taking a position one way or the other that there had been bias. What the company is suggesting is that Provencher took a very clear stance against the rezoning that was integral to Stewart’s variance application as well as the determination appeal.

McCormick reiterated that Provencher’s stance was a moot point because she was concerned with the rezone of 107-109 Helderberg Ave., which has already been decided.

Everhart pushed back and said that the issue is whether or not a zoning-board member who would otherwise have the ability to vote in favor or against certain aspects of Stewart’s application took a public stance on the issue.

McCormick defended Provencher, saying that whatever concerns she had previously had, appeared, at least to him, “to be something that is over and done with.”

McCormick then asked Justin Heller, the zoning board’s attorney, to weigh in. Heller said that, ultimately, it’s up to both Provencher and the board to decide  as to whether she should recuse herself.

Whether Provencher is biased or there is a concern that she may be biased, based on prior proceedings, Heller said, what the board and Provencher should care most about is that the process is not tarnished in any way and there isn’t even the appearance of impropriety.

On that basis, Heller said that it would be appropriate for Provencher to abstain from participating in the process involving the Stewart’s application. “I think the board will be well served by having Kate abstain,” Heller said, meaning that Provencher would in effect be a bystander on all matters related to the Stewart’s application.

Heller added that Provencher could abstain for just the May 14 meeting and,  upon further reflection, decide that there is no appearance of impropriety and she could be involved in future proceedings.

“It’s not an irreversible decision,” Heller said, noting that the letter had come in at the “11th hour,” and that neither the board nor Provencher had time to reflect on it — or consult with Heller.

Everhart said that neither she nor Stewart’s had known of Provencher’s comments until Monday, May 13, the day before the zoning-board meeting. When asked how she made the last-minute discovery, Everhart told The Enterprise that she came across the comments while reading through the board minutes of the December 2018 public hearing. Asked if she had been tipped off as to where she could find the comments, Everhart said that she hadn’t.

Heller’s recommendation was that Provencher abstain from participating in the May 14 meeting, then he, Provencher, and the board would further evaluate what to do going forward.

Matulewicz had expressed views

Resident Julian Rosenberg asked a question to which he already knew the answer: Had there been any other board member who had made a public comment about the Stewart’s proposal or written a letter to the Enterprise editor to voice an opinion on the matter?

McCormick asked Heller if Rosenberg’s question had to be answered; Heller told McCormick that, no, it did not. McCormick then addressed Rosenberg, answering his question: “There you go.”

Rosenberg quickly responded that board member Tresa Matulewicz had written a letter to the Enterprise editor in favor of the Stewart’s proposal. Matulewicz’s letter appeared in the November 22, 2018, edition of The Enterprise. It was pointed out that Matulewicz had written her letter as a private citizen; she was appointed to the zoning board in February of this year.

Additionally, Matulewicz, like Provencher, spoke at the Dec. 12, 2018, village-board meeting, again, as a private citizen: “I am in favor of the rezoning. I think the Stewart’s plan is a good plan. I think that as a village we are inundating that corner [Altamont Boulevard and Main Street] with traffic.

“You know, back in the eighties we had Bonfare [and] we had Ketchum’s, which provided a lot of different varieties of products, so that business was dispersed. When Bonfare left and Ketchum’s became Sunoco, everything kind of got shoved into Stewart’s; that became our convenience store.

“As a result, that corner is a nightmare in the morning and in the evenings. My son gets on the bus there; three times last week he was almost hit by cars coming in and out of that lot.

“It may be an inconvenience to some that the store needs to expand, but my son’s life and the lives of our kids who get on the bus — there is not an inconvenience; their safety is not an inconvenience. The safety of our residents is not an inconvenience.

“There is a lot of traffic there right now and I’ve also heard some people say, ‘You know, this is our town. We don’t want more people coming to Stewart’s, and as the gentleman from Stewart’s said, I’ve never heard somebody say, ‘Oh, I want to go to a town because they have Stewart’s.’ That doesn’t happen but, if it were to happen, so what?

“Our Altamont Fair numbers have been down; we were threatening to close our elementary school because we didn’t have enrollment. Maybe we do want people coming into the village and, maybe, having a Stewart’s that is nice [and] will give them a place to sit, have a cup of coffee and say, ‘Wow, this is nice. You know, we should come up here more often and spend our money and put that money into our economy.”

McCormick said that, in a village with fewer than 2,000 residents, if someone has an opinion, it’s going to get out.

Wait till May 28

He then turned back what should be done about Provencher.

McCormick said that it was only last month he had been praising Provencher for her 20 years of service. She is an integral part of the board, he said, before adding that he would not be in favor of Provencher recusing herself. “I don’t think that’s necessary,” he said.

Had the board decided to move forward with Provencher and make a determination on Rothenberg’s appeal, McCormick said that Stewart’s had “avenues of recourse,” like filing an Article 78, challenging the board’s decision to allow Provencher to vote.

The board had three options, McCormick said: move forward with Provencher voting; postpone the vote; or have Provencher recuse herself, which, for McCormick, wasn’t an option because he didn’t see Provencher as “being biased at all.”

Matulewicz, too, said she wanted to have time to talk to Heller.

After polling the board, McCormick decided to postpone making any determination on Rothenberg’s appeal, and set another meeting for May 28.

Everhart said that an “automatic stay” had been placed on Stewart’s application in order for the ZBA to consider Rothenberg’s appeal.

McCormick said that no matter what the ZBA decides, Stewart’s isn’t moving forward with its application because an Article 78 lawsuit is challenging the rezoning decision made by the village board.

Everhart responded that, if the zoning board determined that the project use is a gasoline service station, which is what Rothenberg is saying it is, that would mean Stewart’s would need to redevelop its application and resubmit it.

“That will take time, effort, and money,” she said; there is no good reason to extend making a determination for another 30 days.

Referring to the Article 78 brought against the village board, Everhart said that process “is a fairly short period of time,” and that Stewart’s doesn’t agree to tacking on another 30 days on top of it, adding that a date for the Article 78 proceeding had been set.

McCormick asked Heller if that was correct, and Heller said that he was not aware that a date had been set.

According to the Albany County Supreme Court docket, the date has been set for Aug. 1, with Judge James Ferreira presiding over the case.

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