ALTAMONT — Claiming that she spoke out against the process and not the project, zoning-board member Kathryn Provencher said on Tuesday that she would not recuse herself on matters related to Stewart’s Shops’ proposed Altamont Boulevard project. She then voted with her fellow board members to overturn a decision that was favorable to Stewart’s.

At its regular monthly meeting on May 14, the zoning board heard Carol Rothenberg’s appeal of village Building Inspector Lance Moore’s classification of Stewart’s as a convenience store rather than a gasoline service station. Rothenberg lives next door to the house that would be torn down to make way for Stewarts’ proposed expansion.

The zoning board on May 28 voted unanimously to overturn Moore’s interpretation, saying that, yes, the proposed project was a gasoline service station and not just a convenience store, meaning that Stewart’s now has to come up with a proposal that fits within the narrower parameters of a gasoline service station.

“I am grateful to the ZBA for their thoughtful deliberation and decision to follow the Village codes defining what constitutes a gas station or convenience store,” Rothenberg told The Enterprise in an email.

At the May 14 meeting, Stewart’s had made a last-minute request of Provencher, asking that she recuse herself from anything having to do with the Altamont Boulevard project because, the company claimed, she had been biased toward the proposed project.

Provencher had spoken at the December 2018 village-board meeting and public hearing on the proposed rezone of 107-109 Helderberg Ave., and also signed a petition opposing 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.

Had the board decided to move forward with Provencher participating and make a determination on Rothenberg’s appeal, zoning-board Chairman Maurice McCormick on May 14 had said that Stewart’s had “avenues of recourse,” like filing an Article 78, legally challenging the board’s decision to allow Provencher to vote.

Stewart’s did not return a call seeking comment before press time.

On May 28, Provencher said that, when she spoke at the December 2018 public hearing, it was to express her opposition to the manner in which the rezone was being considered. As a member of the committee that drafted the village’s comprehensive plan, Provencher said that, if any zoning needed to be updated, then it should go through the same open and rigorous review process that helped the committee arrive at the comprehensive plan.

While Provencher, a 20-year member of the zoning board, had spoken against the rezone, another zoning-board member, Tresa Matulewicz, had spoken in favor of the rezone; however, her comments were made before she had been appointed to the board. Matulewicz had written a letter to the Enterprise editor in favor of the Stewart’s proposal, which appeared in the Nov. 22, 2018, edition of The Enterprise.

On May 28, Matulewicz did not recuse herself on manners related to the proposed Stewart’s project.

In making her decision not to recuse herself, Provencher said that she had reviewed a number of resources on conflict-of-interest situations as well as consulting with the village attorney, Justin Heller.

When asked by The Enterprise if Heller had advised her to recuse herself, Provencher would not say.

Heller did not return a call seeking comment before press time.

Heller had, however, been clear at the May 14 board meeting that he thought Provencher should recuse herself, but said that, ultimately, it’s up to both Provencher and the board to decide as to whether she should recuse herself.

The only standard of conduct in the Altamont Code of Ethics that relates to this situation says: “Disclosure of interest in legislation. To the extent that he/she knows thereof, a member of the Village Board and any officer or employee of the Village of Altamont, whether paid or unpaid, who participates in the discussion or gives official opinion to the Village Board on any legislation before the Village Board shall publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he/she has in such legislation.”

What the board and Provencher should care most about, Heller had said at the May 14 meeting, 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’s final 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.

Mark Davies, who had been the executive director and counsel of the New York City Conflicts of Interest Board for 22 years, told The Enterprise in an email that, assuming Provencher has no personal interest in the matter, that the Stewart’s proposal doesn’t personally affect her or her family’s financial interests, or the financial interests of her employer, then the only question is whether or not Provencher has “prejudged the matter and therefore cannot be impartial.”

And so, Davies, paraphrasing existing case law, writes: “As a general rule, a conflict of interest requires some pecuniary or material benefit, not just an expression of opinion.”

Davies went on to say that “a member of a quasi-judicial body, like a zoning board, should not recuse unless required to do so, lest she fail to fulfill the duty imposed on her by law to decide a matter.”