Carvel attorney weighs in on alternate ZBA member debate

PINE PLAINS — A public hearing was held Thursday, March 18, on a proposed local law regarding alternate members on the Zoning Board of Appeals (ZBA). Only one person from the public, attorney Jennifer Van Tuyl, who represents The Durst Organization, Inc., in the Carvel Property Development application currently before the town, spoke at the hearing.

“Laws on alternate board members are very important and I fully support the move to have alternates,� she said. “I think this law has a worthy purpose, but several issues, I think, weren’t addressed in the law.�

Van Tuyl then addressed a number of points made clear in a letter she submitted to the Town Board before taking the floor. Those points, and the attorney’s supporting statements, are  below, as presented in said letter.

Van Tuyl’s points

and views:

• How many alternates can and shall be named? It is imperative that the law allow a sufficient number of alternates to ensure an applicant of a full complement of board members to decide an application, even in situations where a number of board members may be disqualified.

• The draft law does not specify any eligibility requirements to ensure that the alternates are free of bias and can adequately fulfill duties when regular members are disqualified. It has been suggested that town boards appoint alternates with different professions, backgrounds and viewpoints than those serving as regular members, to ensure that they will not share the same types of predisposition which may disqualify regular members. It is critical that an alternates law make provisions to ensure that the alternates are not affected by the same bias that has disqualified the original members.

• The draft law does not set forth any requirements for regular members to promptly recuse themselves to enable prompt appointment of alternates. This can be required as part of an alternates law.

• The draft law does not make provisions for the length of the alternate’s service, and does not distinguish between the two very different situations where alternates are needed. Where an alternate is appointed for a conflict of interest or appearance of impropriety, the alternate should continue to serve until the matter is concluded. Where an alternate is appointed because of an absence, the regular member should resume duties upon return to the board.

• The law does not clearly define the situations that call for appointment of an alternate member. For example, it uses the term “absent,� but does not set forth the kind of absence that justifies appointment of an alternate. Is the law intended to cover only long-term absence (for illness, temporary work assignment, long-term travel)? Or is the law intended to justify appointment of an alternate even when a regular member is only absent for a single meeting?

• The law doesn’t clearly provide for the alternate’s obligation to attend meetings or specifically provide that the alternate does not participate until actually appointed. This is usually required to avoid situations where more than the appropriate total number of members is actually discussing or deliberating on an application.

“My main reason for pointing out these situations is because these arise in real life and usually in the middle of an application,� she told the board after her presentation. “I support the concept of your law totally, but I think that these could make a better law.�

Town’s response

Councilman Bob Couse suggested handing Van Tuyl’s submission over to Attorney to the Town Warren Replansky and “letting him work on it.�

“I need to digest it,� Councilwoman Sandra David said.

“My comment is that most of these issues do not need to be written into a local law on alternate members,â€� Replansky said after the presentation. “I do not like the idea of somebody recusing themselves from an application and then an alternate member being scrutinized  by the board and chairman if he has a conflict. If an alternate member has to recuse himself that usually comes from the alternate member himself.â€�

Replansky also said that if the board reviews Van Tuyl’s submission and then decides to tweak the
current version of the local law, changing it “drastically,� a new public hearing will have to be held.

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