Calling suit moot, Knox denies ambiguity

Enterprise file photo — Marcello Iaia

Fenced in, Hitmans Towing has been located on Route 146 on the same property as the home of its owner, Kristen Reynders.

ALBANY — Responding to a lawsuit brought by the owner of a Knox towing business, the town denied allegations about its prosecution of a zoning violation and argued there was no confusion over the level of the charge, considering it a clear misdemeanor.

Last month, Kristen Reynders, owner of Hitmans Towing on Route 146, filed an Article 78 petition against the town of Knox in Albany County Supreme Court, a special proceeding allowed in state law for challenging a government action. Reynders’s petition asked the court to order the town to stop prosecuting the charge as a misdemeanor, dismiss any zoning tickets against her — due to the “nature of the unlawful criminal sanction it imposes” and “ambiguity generated by the Town Prosecutor” — and pay attorney’s fees.

In his response on Jan. 29, John Dorfman, representing Knox, called for Supreme Court Judge Kimberly O’Connor to dismiss the petition. He wrote that the petition was “rendered moot” after Reynders pleaded guilty in town court to the charge of operating a business in a residential area, according to the response papers obtained by The Enterprise. She paid a $300 fine. Since the Jan. 21 plea, her trucks have been on local roads carrying rescued cars.

Tracing other lines of defense, Dorfman cited Penal Law to say that Reynders’s offense was not a violation, but a misdemeanor, while also writing that the determination is left to a presiding judge. In an interview last week, before the response was filed,  Dorfman said court interpretations were mixed on whether the statutory language used in the town’s zoning law considers offenses to the local law violations or misdemeanors and that, with the plea, the town took no position.

A misdemeanor is a charge that can result in a prison sentence of 15 days to a year and becomes part of a criminal record. A violation can bring only a maximum of 15 days in prison.

Using language from the statute for an Article 78 proceeding, Reynders’s petition says that Dorfman acted “without or in excess of jurisdiction” when he implied that she could ultimately be found guilty of a misdemeanor, after first saying it was a violation.

Reynders and her lawyer, Nicole Strippoli of Young, Fenton, Kelsey & Brown, did not return phone calls Wednesday.

“Prior to purchasing the property, the Petitioner consulted with a realtor and Town officials, who informed her that she would be able to operate a business at that location,” Strippoli wrote.

Writing in his response, Dorfman denied that paragraph, as well as several others, including Strippoli’s contention that Reynders was “unfairly targeted” since she is aware of no other businesses near her home that were issued tickets for violating the town’s zoning law.

Reynders left Altamont, where she first started her towing business, several years ago after running afoul of the village’s zoning. She now lives on the same property where Hitmans Towing has been based, with a few other businesses in the same area, where Route 146 meets Lewis Road.

After a public outcry and a petition to change the zoning law, supporters of Hitmans Towing are now looking to an addendum of the town’s comprehensive plan for a signal that the zoning regulations would be changed to allow commercial uses along Reynders’s road. The Knox town board amended the zoning law last year to allow for mixed commercial and residential uses in the hamlet on Route 156.

Citing People v. Bonnerwith, a 1972 case involving the town of Rhinebeck’s zoning law, Strippoli argued that the state law that was excerpted in the Knox zoning law clearly says that, when it comes to conviction, a violation of the zoning law is considered an offense.

But Dorfman wrote that Strippoli misread the Bonnerwith case, in which Rhinebeck had changed the state language in its own law, substituting “offense” with “misdemeanor.”

“By reason of that change the Town Court found that the Town had exceeded the authority of the NYS Town Law…,” Dorfman wrote. “This is not what occurred in this prosecution!”

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