According to attorney Scott Chatfield, special counsel for the town in that Article 78 proceeding, the process must be started over. Chatfield reported to the town council Nov. 5 that even though the ZBA decided Kinne's zoning determination was correct, the permissibility portion of Kinne's determination was made moot by the newly enacted Local Law No. 1 of 2007. The decision that the question was moot still constituted a decision, Chatfield said.
Chatfield said the ZBA is an appellate body that cannot go back and re-decide a matter, and the planning board cannot direct them to do so. Chatfield also presented the town council with a resolution and proposed local law that addressed some of Dowd's concerns in his July decision.
Exactly one week after Chatfield's visit with the Sullivan Town Council, attorney Michael Longstreet filed an Order to Show Cause on behalf of the applicants. Copies of the pleadings obtained by the Chittenango-Bridgeport Times indicate the applicants are asking Dowd to find the town in contempt of court for failing to follow the judge's July order, asking Dowd for an order disqualifying Chatfield from representing any of the town boards in the matter and asking for an injunction preventing the town from enacting any law that might interfere with the planning board's decision on applicants' special use permit application.
ZBA member Donald Henry said information he received last week from the State Department confirmed what Chatfield told the town council earlier this month.
"My feet are in this about as deep as you can get," Henry said. "The closer it got to this date, the more it became apparent we were going to get hung up on procedure."
Henry explained that everything that comes before the ZBA must be a result of a codes/zoning determination.
"Whomever is aggrieved by [the CEO's] decision can appeal to this board," Henry said. "As I began to explore how to go with this, I wound up [speaking with] the Department of State and spoke to Riele Morgiewicz and explained the situation. Her first thing? 'Did you make a decision at that first hearing?' She said, 'You've got to start all over again, get ZEO determination, appeal, hearing.' If we make a quick decision without a hearing, we're going to get hung up on procedure again. We're hung up on idle. Basically, it's Tom's prerogative to go to the ZEO and get a determination. The town board has begun the process to rewrite law again."