Lawyers and zoners clash over ski resort impasse

COPAKE—The fate of the Berkshire Mountain Club at Catamount Ski Area remains in limbo following a tie vote by the Zoning Board of Appeals last month, but that impasse and the decision to close the public hearing on the matter did not stop both sides from continuing to argue the issue at the October 23 ZBA meeting.

On September 25, the town ZBA deadlocked two-to-two on whether to approve a special permit for the $80-million, four-season resort project at the base of Catamount. Since approval of the permit required an affirmative vote of a majority of board members, the project could not move forward. The ZBA currently has only has four voting members with one vacancy.

When the Berkshire Mountain Club issue came up on the October agenda, ZBA Attorney Ken Dow, who also serves as counsel for the Town Board and the Planning Board, gave his legal opinion of what the tie vote meant.

He said there was some question whether the vote constituted a denial of the application, but he has determined the vote is a “non-action, constituting neither an approval nor a denial, which leaves the matter open.” Reading from his letter of October 20 sent to the ZBA and town clerk, Mr. Dow cited case law and said that if the ZBA decides to take up the issue again and attains an affirmative vote within 62 days, the project would be approved, if not, then it becomes denied.

Board member Frank Peteroy, who voted No on the project along with ZBA Chair Hilarie Thomas back in September, questioned how one town code bylaw could be followed and another bylaw rejected. Mr. Dow explained that many town code bylaws were “obsolete” and out of line with state laws. “Bylaws are subordinate to state law,” said the attorney.

Also at the meeting was attorney Dan Tuczinski, who represents Gert and Cindy Alper, Swiss Hutte Inn and Restaurant owners, which is a Catamount neighbor. But when Mr. Tuczinski attempted to speak on the matter, he was interrupted by Harry Freeman, the project developer, who said he thought the public hearing was closed. He told Ms. Thomas it was not in keeping with procedure to let Mr. Tuczinski address the matter.

But Ms. Thomas said Mr. Tuczinski represents a directly impacted party.

“We’re directly impacted,” said Mr. Freeman.

Ms. Thomas said the attorney would be allowed to address a procedural issue, but told Mr. Freeman if he didn’t like her decision, “Maybe you should report me to the Ethics Board.”

Ms. Thomas then announced that she wanted independent counsel appointed for the ZBA to replace Mr. Dow.

Board member Jon Strom noted that the board had received an “outpouring from the public of 55 letters supporting” the Catamount project since the vote.

Mr. Dow said the public hearing is closed and therefore the letters are not part of record. The board is not permitted to make a decision based on public pressure and it is the board’s job to evaluate the application in the context of the law, he said.

Mr. Strom said the project falls within the zoning code definition of a resort hotel.

Mr. Dow said because a prior board in considering an earlier version of the project in the early 2000s found the project compatible with the definition, the ZBA had to abide by that decision unless the ZBA reversed the decision by a majority vote. “This is the established position of the board; it can’t be ignored unilaterally,” he said.

Ms. Thomas, who is also a lawyer, verbally sparred with Mr. Dow over the impact of the earlier ZBA decision. “We disagree on the code definition,” she said.

Andrew Gilchrist, another lawyer with the law firm representing the Alpers, criticized Mr. Dow, calling Mr. Dow’s legal representation of the Town Board and the Planning Board and the ZBA “an irreconcilable conflict” and supporting the ZBA request for independent counsel prior to resolution of the issue.

“The Planning Board is independent, they have done their job. The Town Board is not weighing in, there is no conflict among the entities of the town,” Mr. Dow said.

Mr. Strom said he found Mr. Dow to be impartial and disagreed with the request for independent counsel.

In the ensuing discussion Mr. Tuczinski accused Mr. Dow of “trying to convince [ZBA members] why they should be in favor” and accused Town Supervisor Jeff Nayer of being in attendance at a recent closed-door meeting of Catamount project supporters at Four Brothers.

Mr. Nayer shot back, saying he was at the meeting because he was asked to explain procedure. He said the restaurant was open at the time and anyone could have walked in if they wanted to.

Mr. Tuczinski apologized to Mr. Nayer but he continued his criticism of Mr. Dow for advising both the Planning Board and the ZBA, saying, “Giving this board advice is an absolute conflict of interest.”

The Planning Board did a site plan review, it did not issue a position on the project, said Mr. Dow. After several people leapt from their seats, eager to have their say, the board moved into executive session to conduct at least one interview of a potential new ZBA member. The board will conduct more interviews November 5 in hopes of coming up with a recommendation of someone to fill the vacant position on the five-member board. The Town Board could act on the ZBA’s recommendation at its November 13 meeting and a revote on the Catamount project could take place at the ZBA’s November 20 meeting before the 62-day decision deadline arrives.

To contact Diane Valden email .

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