|Social dog boarding in the country for city dogs.|
|Glencadia Dog Camp in the local paper|
|Wed, 2 Oct 2013|
Supreme Court tosses out Pflaum’s violation
ZBA, ZEO taken to task
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Posted: Sunday, September 22, 2013 12:30 am | Updated: 9:01 pm, Mon Sep 23, 2013.
By John Mason Columbia-Greene Media | 17 comments
Posted on September 22, 2013
jmason by John Mason
Editor's note: Paragraph 5 has been added to the original story in order to clarify the nature of the notice of violation. In addition, the final sentence has been corrected to reflect Tal Rappleyea's current title.
STUYVESANT — Stuyvesant has been dealt a blow by the New York State Supreme Court in the town’s three-year-long battle with Glencadia Dog Camp owner Will Pflaum.
HH3Animal Care Clinic
In a decision dated Aug. 29, but released by the town’s attorney Thursday, Acting Justice Henry F. Zwack found in favor of the bulk of Pflaum’s Article 78 suit against Stuyvesant Zoning Board of Appeals Chairwoman Pat Casey, the ZBA, Zoning Enforcement Officer Gerald Ennis and the Town Board.
Pflaum alleges that the town government has spent $250,000 on legal fees on his case.
Zwack dismissed a notice of violation Ennis filed against Pflaum Aug. 9, 2010, and declared an October 2012 ZBA resolution upholding the resolution null and void.
The notice of violation is based on the fact that Pflaum holds a Class 2 home occupation permit which requires that his business not exceed the noise level of an average household, and that barking dogs exceeded this threshold.
Zwack did, however, disagree with Pflaum’s contention that the Stuyvesant law is unconstitutionally vague.
The law’s prohibition of “unusual” noises that “exceed those normally produced by a residence” is within the power of the ZEO and the ZBA to interpret and enforce, Zwack stated. The judge also denied Pflaum’s request for declaratory relief, which would have put an end to the conflict.
In his eight-page decision, the judge was highly critical of the procedure of both Ennis and the ZBA.
“Stunningly, not one of the procedural requirements of the zoning ordinance were followed,” he wrote. “This, in and of itself, requires dismissal of the Notice of Violation.”
Another factor, he stated, was that there was so little documentation of actual complaints of barking dogs.
Zwack provided an encapsulated history of the conflict between the camp owner and the town.
Pflaum’s dog boarding kennel housed between 20 and 75 dogs at a time.
On Aug. 9, 2010, “in what petitioner refers to as retaliation for his whistle-blowing ways,” the judge wrote, Pflaum received the notice from Ennis that he was in violation of Stuyvesant’s home occupation law.
“One or two neighbors or townspeople or several verbally complained, not necessarily about the excessive noise, but rather that it was so persistent,” Zwack stated.
While the notice of violation gave Pflaum 16 days to remedy the situation, on the same day, Aug. 9, “he also received a notice from Gerald Ennis ... that the permit for the kennel had been revoked.”
On Sept. 27, 2011, the ZBA sustained the violation and revocation, directing Plaum to move his business to a commercial area. Pflaum brought an Article 78, stating that the ZBA misinterpreted town law when it considered issuance of the permit rather than limiting its analysis to the noise complaint.
Judge McGrath, Zwack stated, agreed with Pflaum, annulled the ZBA’s resolution, restored Pflaum’s permit and remanded to the ZBA “the very narrow issue of the notice of violation.” The ZBA responded by holding another public hearing, Sept. 18, 2012, “at which time the petitioner would need to come forward and prove that the barking was not ‘excessive noise.’”
On Oct. 16, 2012, the ZBA upheld the notice of violation, saying that Pflaum had not proved the dog kennel did not create excessive noise, and “did not refer it to the Town Justice Court for further action,” Zwack wrote. It was this resolution that prompted Pflaum’s suit, one of five he has brought.
In this Article 78, Pflaum claims there are five errors of law:
n The notice of violation does not allege an unusual noise and therefore it alleges no violation of the law.
n The majority of the ZBA misinterpreted the word “exceed” as used in the ordinance (as in excessive noise).
n The board failed to follow the requirement that the notice be in writing.
n The board failed to narrowly construe the “violation.”
n The board wrongly placed the burden of proof on the petitioner.
After reading “the voluminous record of the proceedings before the ZBA,” Zwack found most notable “the ZBA’s failure to address any of the substantive issues raised by petitioner (Pflaum) with respect to the sufficiency of the notice of violation itself.”
While the zoning ordinance requires that initial complaints be in writing and be then investigated by the ZEO, who prepares a written report to be kept on file and sent to the petitioner, “this entire step seems to have been omitted, establishing that the ZBA failed to comply with the town ordinance, and thereby requiring annulment of the ZBA resolution,” Zwack wrote.
He also finds Ennis at fault for not giving Pflaum the required amount of time to comply with the ordinance, by revoking the permit on the same day he issued the notice of violation.
The notice of violation itself is “fatally defective,” Zwack stated. “It is well established that inasmuch as a violation notice is akin to a criminal proceeding, the notice must comply with the requirements of Criminal Procedure Law ... Every element of the charge must be supported by non-hearsay allegations, and an improper information is a jurisdictional defect, warranting dismissal of the notice.”
Zwack also gives some credence to Pflaum’s charge that the town targeted him because of his vocal criticism of it in his blog.
“ ... there does appear to have been a disproportionate amount of time and money spent on this violation notice,” the judge stated. “A review of the board meetings and the hearings reveal nothing but contention between petitioner and respondents. What the records do not reveal is a real issue with dog-barking. Notably, petitioner’s actual neighbors do not appear to be the ones complaining about the kennel.
“Nor do we know, as noted earlier, whose complaint actually spurred the violations,” he wrote. “The court cannot determine from the record if the barking was ‘excessive’ or ‘unusual’ without context, such as where the person who heard it was, what day, what time of the day, and how many dogs were in residence at the kennel at that time.”
Calls to Casey, Ennis, Supervisor Ron Knott, Pflaum and Town Attorney Tal Rappleyea were not returned in time for publication.
To reach reporter John Mason, call 518-828-1616, ext. 2500, or e-mail firstname.lastname@example.org.
Posted in News on Sunday, September 22, 2013 12:30 am. Updated: 9:01 pm.
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Bigdog posted at 6:35 pm on Mon, Sep 30, 2013.
@Manoreason, you should keep quiet on things you know nothing about! First of all I can assure you that there have been numerous complaints from close and adjoining neighbors of this kennel including mine. My property is only 30 feet from Pflaum’s. I signed an affidavit testifying that I can hear and am disturbed by the barking coming from the kennel. Stunningly according to town officials the judge lost them! The Town filed no lawsuits against Pflaum and was in fact the plaintiff in every one of Pflaum’s lawsuits and was forced to spend large sums of money in its own defense, aggressive pursuit? I think not! Why the Town did not follow their own zoning law is a mystery to me; however that does not change that fact that several neighbors including one of Pflaum’s closest neighbors and one that happens to be a combat disabled veteran have sold their homes because of the constant barking. This man continues to undergo treatment for post traumatic stress disorder. His symptoms became markedly worse during this ordeal and they continue now even after being forced to move. He and his wife have filed numerous complaints and also provided the Town with video recordings as proof! I guess the Towns lawyer failed to forward this evidence also! You see Mano, this area is zoned as residential and with that has strict business restrictions. Pflaum’s kennel needs to comply with OUR town’s rules. A gunshot once in a while, I can assure you that you never hear a cow here and noise from any farm does not go on and on for hours and hours as the barking from the kennel often does! Also my neighbors do have dogs that bark but not 20 to 50 at a time and certainly never ever through the night as Pflaum’s clients dogs often do! Funny we have seen the likes of people like you over and over during the last several years. Anytime we have complained about the barking we have been attacked, we are called prejudiced, anti -business, anti-dog, crazy, liars, and the list goes on. Pflaum has been granted the privilege, not the right to operate an in-home business in amongst our homes in this residentially zoned area. With that comes strict zoning rules! 10, 20 50 dogs barking that can be heard by ANY of the Pflaum’s neighbors , loud or soft is unusual and not allowed under the towns current zoning law. If only one resident has a noise complaint about the kennel then the kennel is in the wrong!
read more (about 13 more lines)
Manoreason posted at 8:41 pm on Sat, Sep 28, 2013.
Judges should rule on law. This judge did. The facts here seem to contradict the most vituperative posters in that the immediate neighbors of Mr. Pflaum (sp?) have not come forward to complain by my reading of the ruling. The town has aggressively pursued the plaintive.
Bigdog seems to be a player by his familiarity with the particulars, but a prejudiced one, based on his presentation of facts that are not part of the judges finding or opinion. Congressmen Gibson likely never commented because he didn't desire to take the bait to draw his brother's law practice's billings into the mix. That could prove to be 'uncomfortable' even if he can 'prove' no laws were broken. The blowing up of a whole factory in Ghent would seem more of a zoning issue than some dogs barking in an area known for dogs, farms, cows, and an occasional gun shot.
Bigdog posted at 1:17 pm on Sat, Sep 28, 2013.
Simon says; put up my dog sign
Simon says; take down my dog sign
Simon says; put up my dog sign
Simon says; take down my dog sign
Simon says; put up my dog sign
Simon says; take down my dog sign
Simon says; put up my dog sig
Simon says; You will be assimilated into the Borg
Bigdog posted at 6:35 pm on Thu, Sep 26, 2013.
Pflaum was not granted declaratory relief and according to the Judge, enforcement of the noise regulation in the zoning law is well within the powers of the ZBA and the ZEO. The fact that dog barking can be heard well off of Pflaum's property proves that this business has grown far beyond that of an “in home” occupation type and should now be considered as commercial. Just because the Town was wrong does not mean that Pflaum is now in the right! As Pflaum has just proven, Article 78 proceedings are very commonly used to force municipalities to enforce their own zoning laws! I wonder, faced with another lawsuit from a resident other than Pflaum himself would the Town of Stuyvesant again spend another 200,000 plus dollars to defend itself against just such a lawsuit (as they have in defense against Pflaum) or would they now choose not to defend, thus allowing the courts to force them (town) to do what should have been done years ago, provide protection to the residents and neighbors of Pflaum’s by forcing his kennel into compliance with the towns zoning law! I wonder!
Bigdog posted at 3:49 pm on Thu, Sep 26, 2013.
Yes stoned, the Town did bumble this. Their intentions were correct however, the town attempted to protect the dog kennels neighbors from the onslaught of continued barking. Barking that continues to go on and on to this day! Just because the Town has failed at enforcing their own zoning laws does not now mean that a violation did not or does not still exist! Martin, you and your fellow Democrats in town profess to be the "protectors" of the little guy, yet any time my neighbors or me complain that we can hear dog barking coming from the Glencadia dog camp, we have been attacked by you and other high ranking persons from within the towns Democratic party! We, the neighbors ARE the little guys, we have been steamrolled over by this business that by comparison to us has a huge annual income, and the sad part is that you and your party had a big part in it! Several affected neighbors have already sold their homes because of the continued barking and several more are now considering selling or have their homes up for sale. We are not leaving because we do not like it here. The barking has been going on for years with no relief and it now it looks like there will be no relief in sight!
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stonepound posted at 7:53 pm on Wed, Sep 25, 2013.
yeah little dog (bob) they might illegally revoke his permit a 3rd time.
your tax dollars at work.
Bigdog posted at 12:09 pm on Tue, Sep 24, 2013.
Sleepy hollow; If what you say IS true than I would be a little nervous if I were Mr. Pflaum! OH and you can call me Bigdog! You funny!
sleepy hollow posted at 10:29 am on Tue, Sep 24, 2013.
sleepy hollowPosts: 26
@ Bigdog, Littledog, or no dog... the time, energy, and expense is NO LAUGHING MATTER for the good taxpayers of Stuyvesant.
Bigdog posted at 9:30 am on Tue, Sep 24, 2013.
Sleepy Hollow; SURELY YOU JEST!
stonepound posted at 8:53 pm on Mon, Sep 23, 2013.
gibson never went out of his way to help this small business.
sleepy hollow posted at 8:25 pm on Mon, Sep 23, 2013.
sleepy hollowPosts: 26
I would encourage all readers to check out Mr. Pflaum's BLOG. Exceptionally well written and would surmise all his statements are fact based as he would be open to huge legal liability and exposure otherwise. As the old saying goes.... TOO MUCH GOVERNMENT!
GovernorMagoo posted at 11:36 pm on Sun, Sep 22, 2013.
Mr Pflaum should be grateful to the REPUBLICAN judge. Be careful of the broad brush you paint with Mr Pflaum.
stonepound posted at 5:58 pm on Sun, Sep 22, 2013.
tal continues to be the town attorney.
google lawyer math Rappleyea for more information
Gene Zarpakt posted at 1:33 pm on Sun, Sep 22, 2013.
Gene ZarpaktPosts: 5
I want my money back.
StuyvesantviewToo posted at 10:46 am on Sun, Sep 22, 2013.
As reported in the Register-Star, dogs are being ripped to shreds here and the Town can't find a legitimate way to shut it down? How about the fact that he uses more of his property for this violation than the permit allows?
disgusted posted at 8:49 am on Sun, Sep 22, 2013.
That's what happens when you work an attorney 26 hours a day. things fall through the cracks, like the complete basis for your claim!
JJ posted at 8:47 am on Sun, Sep 22, 2013.
I am glad this is a Stuyvesant problem. Those people have way to much time on their hands.