MOST ATTENTION on the First Amendment these days has something to do with one of the Big 3 freedoms: religion, speech and the press. Occasionally somebody gets worked up about number four, the freedom to assemble. So quick, name Freedom Number 5.
Stumped? It’s the freedom to petition the government for a redress of grievance. It’s not one of the glamour freedoms. But people do use it with surprising results. Consider what happened in Germantown last week.
Seven Germantown residents filed a petition in state Supreme Court claiming that the town Planning Board improperly approved the site plan for a proposed Dollar General store on Route 9G near the center of the hamlet. The residents brought their action under Article 78 of the New York Civil Practice Laws and Rules. They weren’t asking for money. What they wanted and what they got was a judge–in this case, Acting State Supreme Court Justice Henry F. Zwack–to order the town Planning Board to obey the law.
There’s a lot to be said for a variety store like Dollar General in a rural community. Jobs might pay at or near minimum wage, but for local workers shorter commutes might offset the wage. And for customers there’s the convenience factor.
The Germantown site makes sense. It’s in the Hamlet Commercial Zone. But the location offers a panoramic view of the Hudson River and the Catskills, which explains why the site is also within the town’s Scenic Viewshed Overlay District. The district has zoning regulations intended to protect the view.
Primax Properties, LLC, the developer of the Dollar General store, encountered one of those local regulations because Germantown zoning says the “length of any facade should generally not exceed 50 feet maximum.” The store’s facade will be 71 feet.
You could argue that the inclusion of the word “generally” gives the developer some wiggle room, and that might turn out to be true. But it’s the town Zoning Board of Appeals (ZBA), not the Planning Board, that has the right to make that determination. Only the ZBA is authorized to interpret the zoning law. And the ZBA would have made that determination if the Planning Board had sent it the Primax application.
The members of the Planning Board decided instead to act as judge and jury in this case and approved the plan without giving the ZBA a chance to review it, as the law requires. Did the Planning Board members forget they lacked the authority to act without the ZBA’s ruling? No. The decision reveals the Planning Board was repeatedly advised the ZBA must rule on the facade but did nothing.
So Justice Zwack turned the clock back on the Primax plan to July 26, 2018 and vacated the Planning Board’s vote to approve the site plan for the store. Poof! All gone. All that remains now is the proposed site plan. It will be sent to the ZBA, which can either approve a zoning variance for a wider facade or reject the plan based on the 50-foot limit.
Among the sources quoted by Justice Zwack in his decision was a paragraph from the Planning Board minutes of a December 3, 2015 discussion with Primax about “how the zoning’s 50 foot limit to facades might be interpreted in this case.” The Primax representative at that meeting said “there really isn’t an option for a 50 foot wide configuration because of shelving and other issues.”
But it is precisely that type of limit on the scale of development that Germantown voters endorsed as essential for the preservation the town’s rural nature.
Primax has built many stores. Its staff is well informed about land use regulations in New York. Less than a year into the now-four-year-long approval process Primax must have known that it would have to adjust its specifications unless the company was assured early on that it wouldn’t need to bother with a ZBA variance.
The Planning Board was lead agency on the environmental review of the Primax Plan. It seemed well-informed about how that process works. Based on the Zwack decision, the Planning Board also received good advice but didn’t listen to its advisors. Was it just ignorance that led the Planning Board to ignore the ZBA?
The ZBA should enforce the 50-foot limit unless the Town Board amends zoning law. But regardless of this Primax decision, questions linger. They should inspire more Germantown residents to exercise their right to petition the government for redress of grievances.