NEW SCOTLAND — The New Scotland Zoning Board of Appeals and the town’s building inspector are being sued by Tommell Livestock to overturn a decision denying use of a commercial garage on its property, a right “that had been permitted for decades,” according to the complaint filed in Albany County Supreme Court on Aug. 23. 

According to court documents, Tommell Livestock, LLC — owned by Samuel T. Tommell and Adam S. Tommell — purchased the property at 173 North Road in New Scotland in 2018 from the estate of Charles Schufelt; the property contains a four-bay commercial garage that, since 1982, has “consistently and repeatedly” been used by no less than four different property owners “to repair and maintain vehicles and heavy equipment,” court papers say.

A decision made by the zoning board in July states that the 2016 variance, allowing a commercial garage, was not in effect when Tommell bought the property in 2017. The decision further says that Tommell “purposefully misrepresented the actions it took to determine the zoning status of the property and admitted that the various statements made to the ZBA were false.”

A call to Tommell Livestock, LLC was answered by Frances Tommel, who declined comment on behalf of her son, Samuel. Tommel’s lawyer, John J. Henry, did not return a call seeking comment. 

The complaint states that in January, Jeremy Cramer, the town’s building inspector, issued Tommell a violation, which said that the commercial garage was no longer an allowable use for the parcel. 

Tommell appealed Cramer’s determination on two bases, according to court papers:

— First, that the 2016 use variance had not expired (the court filing says that the town’s zoning board had granted the property’s previous owner, Shufelt, a use variance for the garage in 2016 because he had “made the required showing of hardship for the grant of a variance …”) — and that it “ran with the land”; and

— Second, even if the 2016 variance had expired, Tommell had satisfied all of the criteria under the town’s zoning code for the granting of a new use variance.

Tommell, the court papers assert, “did not receive the same treatment” Shufelt had in 2016. In addition, Tommell “became the first and only owner of the Property to be denied the right to operate the commercial garage when the ZBA concluded, without any rational basis, that a use that had been permitted within the Town for decades was no longer permissible.”

Tommell, in court papers, claims that the zoning board failed to identify an expressed time limit on the 2016 use variance — further, the variance was never revoked by the town.

“As a result,” the complaint states, “the 2016 variance ran with the land as a matter of New York law, and the ZBA’s determination that it expired by operation of law was arbitrary and capricious.”

Zoning board’s view

Crystal Peck, the attorney for the zoning board, pointed The Enterprise to the zoning board’s July 2019 decision.

The zoning board upheld Cramer’s determination, and concluded that the 2016 use variance had “automatically expired by operation of law.” Further, the zoning board denied Tommell’s application for a new use variance.

In its decision denying Tommell’s application, the zoning board explained that the 2016 use variance had been granted to Shufelt with a dozen conditions attached to it. “The conditions of the 2016 use variance were never met by the prior Applicant,” the zoning board’s decision states. 

The zoning board said that Shufelt failed to obtain a license from the state’s Department of Motor Vehicles to operate a public garage. In addition, he never obtained the necessary permits from the town — like a certificate of occupancy —  to use the property as a public garage. Shufelt also failed to complete required improvements to the property, the zoning board said. 

The zoning board, in its decision, citing town law, said that the 2016 use variance expired because Shufelt failed to comply with the conditions that were attached to the variance, “as well as the failure to obtain necessary permits by March 22, 2017.”

So, the zoning board further states, the use variance was not even in effect at the time Tommell bought the property.

Court papers say that Tommell’s application for a use variance was “immediately met with opposition” by the zoning board, “who publicly and improperly disparaged” both Tommell and members of his family during the review process, and stated publicly that Tommell’s use-variance application “had no chance of being approved even before any final determination was rendered.”

According to the complaint, Tommel’s application for a use variance was denied by the zoning board even though it was “virtually identical” to the 2016 use-variance application that had been approved by the board. 

The zoning board, according to court documents, “improperly and illegally denied [Tommel’s] application based on the identity of the landowner…”

“Accordingly,” the court filing states, “the ZBA’s determination should be annulled, with a directive that the 2016 variance be reinstated and/or Tommell's application for a new use variance granted.”

The zoning board, in its decision, says Tommell didn’t do his due diligence before buying the property

The board’s decision states, “[Tommell] also relies heavily on a 2017 email to support a reasonable presumption on ... [Tommell’s] part that a previous use variance had been granted and was in effect at the time ... [Tommell] purchased the property. However, the attorney for the previous applicant/owner specifically states in that email ‘I have not received a final version of the use variance and I do not know if he complied with the terms and conditions.’”

“The ZBA finds that the Applicant has purposefully misrepresented the actions it took to determine the zoning status of the property and admitted that the various statements made to the ZBA were false,” the decision says. “The ZBA also notes that after the Applicant purchased the property in December, 2017, it made no effort to assure it had the proper permits with the Town and operated a public motor vehicle repair shop without first obtaining a permit from the NYS Department of Motor Vehicles.”