Landowner fed up after years of zoning gripes

KNOX — The last of three zoning complaints over a property on Singer Road is being addressed, after years of protests by a neighbor.

Vincent Virano, who lives in Albany and owns land on Singer Road, asked the town at its June 11 board meeting to issue a ticket for Gerald Hackstadt’s pool on the adjacent property.

After the meeting, Zoning Administrator Robert Delaney cited Hackstadt for being in violation of a side-yard setback with an in-ground swimming pool Hackstadt said was completed in 2004.

 “There was an application for a building permit which was denied for the pool because it was in violation of the zoning…I think this is back in March of this year,” Town Attorney John Dorfman told The Enterprise.

Virano has sued the Hackstadts, claiming zoning violations — commercial activity in a residential district, and a house and swimming pool in a setback area — devalue his property.

Dorfman said Delaney found no violation at the Hackstadt property after investigating Virano’s claim that his neighbor runs a towing business in a front-yard pole barn. The zoning board of appeals issued a variance for the house in 2011, since, after a survey, it was found to be 29-and-a-half feet within the 50-foot setback adjoining Virano’s empty. The board also asked the Hackstadts to move a woodshed out of the setback.

“It was as much the town as it was them that a survey wasn’t done,” said Robert Edwards, zoning board chairman, of the Hackstadts. “But, like I said, a survey wasn’t required.”

Originally, Delaney granted a building permit and certificate of occupancy for the Hackstadt house based on a hand-drawn plot plan on which the well was labeled with an incorrect distance from the property line.

“If there was a survey, you probably wouldn’t be talking to me today. But, unfortunately, the representation by the property owner was this is where it could be,” Dorfman said to The Enterprise.

Delaney declined to comment, saying the town attorney had asked him not to.

Virano works at Pepperjack’s restaurant in Albany. He told The Enterprise he bought the property in 1990 to build a home, which he hasn’t done.

Of whether he would build on the property, Virano said, “At this point, I don’t know. I have to get through this before anything.”

Virano says the Hackstadts, Gerald and his wife, Traci, offered to buy his land in the late 1990s and built their home in 2000. Virano did not respond to their offer, he said, because he didn’t want to sell, and he suspected them of encroaching onto his property as the pool was constructed in subsequent years. In 2006, Virano had the property surveyed.

Last October, Traci Hackstadt told the zoning board of appeals she would need a four-and-a-half foot variance for the pool that is around 35 feet from Virano’s property line, rather than the required 40 feet.

 Virano said the pool was completed in 2003. “I hired a contractor to do the pool. I didn’t know, but the contractor didn’t get a permit,” Hackstadt told The Enterprise.

Keith Hirokawa, an associate professor at Albany Law School specializing in land use and environmental law, said there is no property right for something built without a permit.

“In practice, what happens is, everybody’s a little more willing to work together, especially when the owner says they want to comply,” said Hirokawa.

He added, “The dilemma is that sometimes zoning is very political, which means that local governments often have a political incentive to say, ‘I realize you broke the law, but let’s figure this out…because it will cost you a lot of money to tear that down.’”

Edwards said in June that no request had been made for a variance on the pool.

Towards the end of its June meeting, the zoning board commented that Virano was looking for attention and money.

Virano told The Enterprise he would require $35,000 to settle the suit, which Hackstadt confirmed. Virano also said Hackstadt offered to buy his Singer Road property in pre-trial negotiations at a “devalued” price of $15,000. The 2013 Knox assessment roll lists the Virano property with a $30,000 full-market value and an $18,500 taxable value.

“It sounds like it would be a similar situation, where they would be under the impression that, if the house met the setback requirements, the pool would also,” said Edwards to The Enterprise.

The town board reopened its June 11 meeting after it was adjourned for Virano to speak.

“The town has known about this since late 2006,” Virano said, sitting before the board. “This hasn’t been addressed. These people haven’t been taken to court.”

Virano told The Enterprise, “I'm accusing the town of collusion, fraud, withholding evidence, and withholding witness.”

His attorney, Douglas Rose, said, “I don’t have any issue with the town.” The case brought by Virano against the Hackstadts in Supreme Court, the lowest in the state’s three-tiered system, centers on the zoning violations he claims devalue his property, not on fraud or collusion.

The complaint of the case lists determination of claim to real property, trespass, and private nuisance as causes of action for over $25,000.

Of the Hackstadts’ swimming pool citation, Dorfman said, “To correct the condition, assuming it’s correctible, it will depend on him making an application for a variance.”

“The issuance of a variance one way or the other will not alter culpability,” added Dorfman. “It may alter what the judge does in terms of a fine or no fine, or whatever may come from it.”

Dorfman said during the June meeting that the town takes no position on Virano’s suit against the Hackstadts.

In 20 years as town attorney, Dorfman said, he has not known of zoning administration complicated by hand-drawn maps in Knox. He said he does not know of how often hand-drawn maps are used, and Delaney declined to comment.

A survey for determining setbacks is sometimes unnecessary, said Dorfman, because a property is very large or there is a natural boundary, like a stone wall.

“I think it would be better [to have a survey], but, again, perhaps people can’t afford it, and that doesn’t make it right,” said Dorfman. “I know it’s very expensive when you survey a large piece of land.”

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