Joe Heath

STATE OF NEW YORK
SUPREME COURT : COUNTY OF CORTLAND

________________________________________________________________

JOSEPH J. HEATH,

Petitioner,VERIFIED PETITION

-vs-
Index No.:
TOWN OF PREBLE ZONING BOARD
OF APPEALS,RJI No.:

Respondent.

________________________________________________________________

Petitioner, Joseph J. Heath, appearing herein pro se, for his Petition against the Town of Preble zoning Board of Appeals, pursuant to Article 78 of the Civil Practice Laws and Rules, hereby alleges and shows the Court as follows:

1. Petitioner commences this proceeding pursuant to Article 78 of the CPLR seeking to overturn a decision of Preble Zoning Board of Appeals, dated June 8, 2000, which approved a special permit application from Tully Recreation LLC, Song Mountain for a snow making well and storage pond by denying my January 31, 2000 Appeal to the ZBA, which sought a review of the January 24, 2000 decision of the Town Code Enforcement Officer;

JURISDICTION AND VENUE:

2. Jurisdiction is conferred on this Court by Judiciary Law § 140-b and CPLR 7801. Venue is proper in Cortland County pursuant to CPLR 506 (b) and 507.

PARTIES:

PETITIONER

3. Petitioner, Joseph J. Heath, resides at 1900 Rittenhouse Square, Tully, New York. Although this mailing address is in Tully, New York, my residence actually is located wholly within the Town of Preble and the County of Cortland. My residence is located on the shore of Song Lake and is within a few hundred feet of the lot on which Song Mountain is seeking to locate its snow making well, storage pond, and related structures.
4. Petitioner was found to be a properly aggrieved party by the ZBA in Findings of Fact # 1, of its January 20, 1999 Resolution, relative to a previous Appeal that I had made to the ZBA on this same proposed development. A copy of this January 20, 1999 ZBA Resolution is attached hereto, as Exhibit "A".

RESPONDENT

5. Respondent, the Town of Preble Zoning Board of Appeals, is the Board of the Town of Preble vested with the authority to enforce the provisions of the Town of Preble Zoning Ordinance.

MATERIAL FACTS

6. In October of 1999, Tully Recreation, LLC, the owners of Song Mountain Ski Center , submitted applications for site plan and special use permits to the Town of Preble Planning Board and Zoning Board of Appeals (ZBA).
7. Upon hearing of these applications, on November 1, 1999, I wrote to the chairpersons of the Planning Board and the ZBA, with specific requests that "the Zoning Enforcement Officer and the ZBA make a specific determination s to whether or not this proposed project would be in compliance with § 645 of the Zoning Ordinance." A copy of this November 1st letter is attached hereto, as Exhibit "B"; and a copy of § 645 of the Zoning Ordinance is attached hereto, as Exhibit "C"
8. On November 16, 1999 Patrick M. Snyder, Esq., Special counsel to the ZBA wrote me and acknowledged my November 1st letter and specifically noted my "request for an interpretation of § 645. A copy of this November 16th letter is attached hereto, as Exhibit "D".
9. On January 24, 2000, Mr. Snyder wrote me again with the code enforcement officer's interpretation of § 645. A copy of this January 24th letter is attached hereto, as Exhibit "E".
10. By letter dated January 31, 2000, I appealed this January 24th interpretation of the code enforcement officer. In this letter, I cited extensive case law and other legal sources to support my position. A copy of this January 31st letter is attached hereto, as Exhibit "F".
11. On February 7, 2000, I again wrote Mr. Snyder, with further case law on the issue of non-conforming uses and the courts' interpretation of decisions by zoning boards of appeals to enforce non-expansion ordinances on non-conforming uses. A copy of this February 7th letter is attached hereto, as Exhibit "G".
12. My January 31st Appeal to the ZBA was answered on February 15, 2000, by a letter from John F. LaFave, Esq., attorney for Tully Recreation. A copy of Mr. LaFave's February 15th letter is attached hereto, as Exhibit "H".
13. On February 21, 2000, I answered this February 15th letter, with my letter to the ZBA, which is attached hereto, as Exhibit "I". Mr. LaFave responded with a letter of February 28, 2000, which is attached hereto, as Exhibit "J"
14. On March 2, 2000, the ZBA held a public hearing on this matter, with extensive testimony from citizens and presentation of opinions by real estate experts. With a lone exception, all Preble residents who testified at this public hearing were opposed to the granting of a special use permit to the applicant to operate this snow making well and storage pond on a residential lake side zoned lot.
15. On March 13, 2000, I wrote a summary letter to the ZBA, with a careful review of the legal positions that I had raised and which I was asking the ZBA to resolve in this matter. A copy of this March 13th letter to the ZBA is attached hereto, as Exhibit ""K".
16. On June 1, 2000, the ZBA met to decide on my appeal and by a 4 to 3 vote, rendered its decision. I was not properly notified of this decision until June 10th, when I received the June 8th letter from Mr. Snyder, wherein he stated that this Decision was filed with the Town Clerk, on June 5th. A copy of Mr. Snyder's June 8th letter and the ZBA Decision is attached hereto, As Exhibit "K".
17. It is this June 5, 2000 ZBA Decision and Resolution that is the subject of this Article 78 proceeding, because the Decision and Resolutions are arbitrary and capricious, and fail to properly and logically enforce the Preble Zoning Ordinance. The provisions of § 645 of the Ordinance should have been strictly construed and the plain and ordinary meaning of non-conforming use and the clear prohibition of expansion of any existing non-conforming use should have been applied.
18. The Preble ZBA failed to strictly construe the Zoning Ordinance, as required by law.

WHEREFORE, Petitioner respectfully requests judgment pursuant to Article 78 of the CPLR:
(1) Vacating and annulling the Town of Preble Zoning Board of Appeals Resolution, dated June 8, 2000, which approved a special permit application from Tully Recreation LLC, Song Mountain for a snow making well and storage pond, by denying the January 31, 2000 Appeal by Mr. Heath to the ZBA, which sought a review of the January 24, 2000 decision of the Town Code Enforcement Officer;
(2) Vacating and annulling the interpretation of the Town of Preble Code Enforcement Officer, dated January 24, 2000; and
(3) For such other and further relief as to the Court may seem just, equitable and proper; all together with the costs and disbursements of this action.

Dated: June 30, 2000
___________________________
JOSEPH J. HEATH, ESQ.
Petitioner
716 East Washington Street
Suite 104
Syracuse, New York 13210
(315) 475-2559

VERIFICATION

STATE OF NEW YORK )
COUNTY OF ONONDAGA) ss:

JOSEPH J. HEATH, being duly sworn, deposes and says that deponent is the Petitioner herein, that deponent has read the foregoing Petition and knows the contents thereof, that the same is true to deponent's knowledge, except as to those matters therein stated to be alleged on information and belief, and that as to those matter, deponent believes it to be true.

__________________________
JOSEPH J. HEATH

Sworn to before me this
30th day of June, 2000.

____________________
NOTARY PUBLIC

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