Transcript – ZBA, September 14, 2026

So as usual, as most people are unfamiliar with the Zoning Board of Appeals process, I'd like to take a moment to explain this process and how we'll proceed.

So the Zoning Board of Appeals is a quasi-judicial body that hears appeals from decisions of the code enforcement officer of the town. Its authority comes from New York State town law as well as Schodack zoning law.

Under state law, the board is charged with balancing the benefit to the applicant if the variance is granted against any detriment to the health, safety, and welfare of the neighborhood or community in general. In granting any variance, the board is required by law to grant the minimum variance necessary.

So we start off usually by reading the public notice and putting in any and all relevant determinations by any other involved agencies into the record. Then we will have the applicant make his appeal to the board.

At the conclusion of the applicant's presentation, the board will have the opportunity to ask questions of the applicant. We will then open the public hearing up to public comment, at which time we will hear from any member of the public which would like to speak on the application, and also read into the record any written comments submitted to the board.

After closing the public comment portion of the public hearing, the board may discuss the application and the appeal. If the board feels it has enough information to make a decision, it may proceed. If not, it may adjourn and go back and take appropriate action.

We will then address the area variance or the use variance criteria that are set out in state law. And at that point, we will entertain a motion to either grant or deny the variance, and that motion must be seconded in order to proceed. Upon the motion being seconded, we will then have discussion on the motion. This discussion may include the placing of reasonable conditions on the variance as the board deems appropriate. Upon conclusion of the discussion, a roll vote will be called to either grant or deny the variance.

The ZBA also has the authority to make interpretations of the zoning code when requested as part of an appeal of any determination of the Code Enforcement Officer. Interpretations are not subject to noticing of property owners or county referral, nor are they open to public comment at a public hearing.

Thank you, ladies and gentlemen, appreciate your patience. Okay, the next item on the agenda is [Mr.] Rapp, Sunset Road. This is an interpretation of a CEO determination. So who is representing Mr. Rapp tonight?

Okay. So, Mr. Tingley, before we get into the substance of your appeal, this board has some concerns over the timeliness of this appeal.

And in your packet you address it with one very brief paragraph. And so we were wondering if you could maybe expand a little bit on that, as to why you think this appeal is timely.

And how would he get notice of that?

Other than you getting a FOIL request, how would he get notice under, I guess what I would call, normal circumstance? How would he be noticed?

John Smith decides to build a shed, and he gets a building permit from the code enforcement officer to build that.

How does his next door neighbor get noticed?

Okay. So in your packet you use the Farina v. New Rochelle case law, which is a very famous case law. It's been around for a long time. It's used frequently in training for zoning board members, etc.

But in looking at the Farina case and the other two cases that Farina cites, which is Pansa [v.] Damiano and Highway Displays v. Town of Wappinger, all those examples specifically talk about the issuance of a building permit.

And in particular, Farina was a subdivision that was approved, and a year later the person put in for a building permit. In Farina's case there were landowners who didn't live there. They were absentee landowners, and they didn't know about the construction or the building permit until the construction started.

And in the case of a building permit, I do think that's reasonable, in that you don't know that Mr. Smith got that permit to build the shed until he starts to build the shed. So that's where the courts have always stepped in. But it's always, that we can tell, it's always been about building permits, not about other determinations. And so I think Farina is apples to oranges in this case.

And I know you put in there also in your packet, you talk about the notice of determination that you received on July 1st. And that's the date you're using?

Okay.

June 5th, I believe.

Okay.

Okay, and that would be fine. I was told by the FOIL officer of the town that you viewed the file on June 5th.

Okay. Because your FOIL request is dated 5/26.

And in the FOIL request, you referred to this as a lacrosse membership club, which means you knew the classification that was used by the town at that point.

Then why did you refer to it as such?

Your FOIL request is right here.

Okay, so…

Actually, it's on the application form for site plan [and] special use permit before the Planning Board.

Right. And so, in the town, we have adopted a policy, because in the past we've had people question the uses, whether the use was legitimate, and they're always looking for a determination by the Code Enforcement Officer. So we adopted a policy that everything that goes to the Planning Board goes for a zoning determination first. And that zoning determination is part of the initial application of anything that comes before them for site plan and special use permit.

And in doing so, when we adopted our new code a year, a little over a year ago, in there it said that if there's ever a question as to a use's validity or classification, that it goes directly to the zoning board and we make that decision.

So he makes a determination up front. That is the day that he made that determination. It was actually back in August of '25, August 26, I believe, '25. It went to the Planning Board. No one on the Planning Board questioned the determination, it was never an issue. And so technically I think that's the date of the determination by the CEO.

And so if we give you the benefit of the doubt, let's say we go along with your assumption that it's the date that the appellant, I should say, knows about it, the record just doesn't bear that out. In that on March 2nd of this year, your client, Mr. Rapp, came to a Planning Board meeting and made public comment on the record about the lacrosse membership club.

Just so you know, I'm not making this up. “[The appellant], Sunset Road, stated the following. He owns the land across or joining the proposed project and has a lot of concerns. He thinks the town should go to the county for review, as well as the state for review. He stated that there should be a traffic study and wonders how this is going to impact the surrounding properties. Is it going to bring the value up? His opinion is it's going to devalue the property on that road and all the surroundings… Also, if there's going to be [a decision] to grant a permit, what's the setbacks, [is it] going to require screening, a fence? There's a lot of factors, mainly the traffic study… His 96-year-old mother has lived there on this road a long time and does not want it. She's upset. Thank you.”

So on March 2nd, your client came and made [a] comment on a project which, even if we give you the benefit of the doubt, he at least knew by March 2nd that this lacrosse membership club was what was proposed on that property.

And I don't believe that we should be considering the date that you choose to put a FOIL request [in] and get that response back, which you could have gotten sooner, because it said here in my notes that the FOIL request was actually completed on June 2nd, and it was due on the 3rd, and that you came in and you say the 15th. She had told me the 5th. That could be a mistake on her part.

But either way, we don't think it's from the date you choose to put a FOIL request in. If that were the case, Mr. Tingley, I'm just being honest with you, people would wait to put that FOIL request in till the day before something gets approval.

And the 60 days in the law is set simply because it is not fair to an applicant to bring these kinds of questioning of the use like that beyond that time period that's prescribed by law. Because, I mean, they're spending money on engineering, engineers for the town, they're investing time and effort. In this case, this gentleman has been before the Planning Board for over a year now, and of course any appeal stays his entire process. So he couldn't even go back to them to get anything further done.

So I'm just letting you know that I don't feel that this is in the least bit timely, in that your client knew about this, minimum, shown [and] proven by the record, as of March 2nd.

…[indistinct] August 26th of '25.

There's no notice ever provided to you about that.

May 26th. He made public comment on March 2nd.

[April,] May, June. I mean, I'm just saying, I understand your opinion. I understand you're doing your job to fight for your client. But I think it's a stretch to even think that the latter date would even apply. Even the March 2nd.

I mean, okay, we'll give you the benefit of the doubt, March 2nd would be the day he was aware of it. But he certainly was aware of the lacrosse membership club, which is what he called it in his comments, the lacrosse membership club, on March 2nd of this year.

So, you know, it's incumbent upon him to go and search the record and find out what the determination was made. Not to sit back and wait two or three months to get an attorney, and then have that attorney put a subsequent FOIL request in, which certainly is not timely in any way, in my opinion.

Okay, but let me ask you a question, and maybe you can answer this. Every determination made by the Code Enforcement Officer, how would you apply that thinking to every single one of those that occurs?

Okay, so I definitely appreciate your perspective. But Mr. Tingley, I feel just the opposite. And I'm going to actually make the motion right now to deny entertaining this application due to the fact that it's not timely. Certainly not timely under the prescribed law, which is 267(a)(5)(B).

And even if we give you the benefit of the doubt, your applicant – and it doesn't say the lawyer for your applicant, it says the applicant – has to know about and be aware of this. And I feel as though he was aware of this on March 2nd, at the latest. Knew that this was there. There was never a question from the Planning Board as to, was this allowed? Were they questioning the use? Were they questioning the determination of the Code Enforcement Officer?

So I'm going to make that motion that we deny this on those reasons given. Do I have a second?

Mr. Spada, second. Would you call the roll, please?

Okay. Mr. Tingley, I'm very sorry it didn't go your way, but I don't think this board should start setting a precedent of listening to and hearing appeals that are well beyond the 60-day time limit, and even in this case, giving you the benefit of the doubt, still beyond a 60-day time limit. So I'm very sorry about that, but that's a position we're taking.

We're going to make a written decision, and it will probably be adopted at our next meeting. We'll actually physically have it.

Within five days after the next meeting.

It won't be adopted until the next meeting, the next ZBA meeting. Next month, this same day.