Owner of popular ice cream shop sues Troy planning commission

Owner of popular ice cream shop sues Troy planning commission

J.H.M., LLC, owner and operator of The Snowman, a popular ice cream shop in Lansingburgh, filed a lawsuit last month against the Troy planning commission and nearby property owner Jack Cox, Sr., alleging the company was not properly notified in advance of a public hearing in May, where Cox’s site plans were approved.

The suit sought to annul the site plan approvals for 519-520 Fifth Avenue, the future location of a used car lot and detail shop. (The zoning board of appeals had already approved that use of the site last November, a decision not at issue in the lawsuit.) According to the May 24 planning commission agenda, Cox proposed “to blacktop” 520 Fifth Avenue and “resurface and stripe” 519 Fifth Avenue “for car storage.”

But the lawsuit now seems unlikely to move forward, since the city has “nullified” Cox’s approvals “due to failure by the property owner to meet public notification requirements,” city spokesman John Salka told The Alt in an email on Friday.

Andy Brick, an attorney with Donald Zee PC representing J.H.M. in the civil suit, had told The Alt on Thursday that if the approvals were revoked, the proceeding would effectively be “moot,” since his client simply wanted the opportunity to review Cox’s proposals and, if warranted, comment publicly on them. Brick and J.H.M. would have “achieved what we wanted” if the approval were revoked, the attorney said.

Informed by The Alt over the weekend of the nullification, Brick wrote in an email Monday that once “confirmed,” he will “discontinue the lawsuit (provided the applicant hasn’t brought his own lawsuit challenging the nullification),” adding: “I give the city a lot of credit for doing the right thing on this.”

An attorney for Cox did not return a voicemail left at his office on Sunday.

A section of the Troy city code that details site plan reviews states, in part, that “a copy of the public notice shall be mailed to each applicant 10 days prior to the meeting date, and one copy of the notice shall be mailed to the five most adjacent property owners of record, as per the City Assessor’s roll, at least 10 days prior to the meeting date.”

Salka did not respond to emails sent Sunday inquiring about procedural particulars, including one as to whether public notification responsibilities ultimately rested with the city. In any event, Andrew Brick had told The Alt on Thursday that this failure to notify J.H.M. seemed “completely unintentional.”

The lawsuit also disclosed that J.H.M.’s attorney had filed a Freedom of Information Law request last month seeking “all applications for planning or zoning approvals” for 519-520 Fifth Avenue “made within the last five years,” minutes from all planning or zoning-related meetings concerning the parcels within the last two years, building department files related to the properties, and all code enforcement complaints or reports pertaining to Jack Cox or properties owned by Cox from the last decade.

The city’s relationship with Jack Cox, Sr. has been rather contentious for quite some time. The latter owns a number of properties in Troy that “have been the subject of a seemingly endless series of code violations,” the city alleged in a court filing in an entirely separate proceeding this February. In that matter, which started last year, the city took Cox to court over such alleged violations at Jack’s Auto Parts, located at 801 River Street in North Central.

On Feb. 23 and May 9, 2016, respectively, at that address, a code enforcement officer photographed scores of inoperable cars, car parts, and tires—junk, essentially, which cannot be kept on private property if “accessible from the public street,” according to a local ordinance.

Inoperable vehicles “constitute extraordinary hazards to the safety of children who are attracted to play in, upon and about” them, the ordinance states, since they tend to “contain some quantity of combustible gasoline” and have many sharp edges.

Cox was eventually found guilty of a violation that occurred on Feb. 18, 2016, the date for which he was ticketed.  

“Judge, I would add that this is an ongoing situation,” Troy deputy corporation counsel Matthew Foley said at the sentencing hearing in July 2016, according to a transcript. “I think at the end of the day it’s simply a business decision…It makes sense financially for Mr. Cox to continue to violate the law as he does if, in fact, he’s merely going to get a small fine, if he can make up the loss by trading in or storing tires or junk vehicles or selling them for scrap metal or whatever else that he does with these things.”

The city attorney asked the judge to impose the maximum fine allowable—$1,000 per day, per vehicle. Before rendering a decision, the judge offered Cox a chance to speak.

“I’m just tired of fighting,” Cox, who is now 75, said. “I serve the local people at this location. They come to me for the tires, they come to me when they ain’t got no money and they want to go to work. I mean, I’ve got my heart set in the city of Troy for my entire life, I went to School 1, and the last 16 years the city of Troy has done nothing to me except make me a double felon, take my junkyard, you know, try to put me in jail, and give me no help whatsoever.” (In 2004, after an undercover operation, the state charged Cox with felony counts of unlicensed vehicle dismantling.)

“They barricaded my properties, they denied me [certificates of occupancy], you know, they want to take me as an auto man and they say I can open up an ice cream parlor,” Cox said, referring to his aborted plan to open such an establishment at 520 Fifth Avenue. (In his November 2016 application for a use variance, he expounded on those plans: “There were thoughts of a fast food and ice cream business. Approval was received for such an endeavor, but after weighing what this would cost along with no real knowledge of the fast food or ice cream business [sic] it was decided that that was not a good direction. Besides there is a good ice cream store on the corner of 114th and 5th Ave called the Snowman. He makes a decent living and shouldn’t be subjected to competition so close.”)

As it turned out, the code enforcement officer’s bookending photographs at 801 River were taken from different vantage points—“probably the only reason I couldn’t find more vehicles in there,” the city court judge said at sentencing last July. So the judge confined Cox’s initial sentence to the lone vehicle—a maroonish Ford F-150 with a white topper—that the judge could “say for certain was on the property” for the roughly two-and-a-half-month period between photos. This resulted in an $81,000 judgment against Cox.

Cox moved to vacate the sentence, essentially arguing that because an accusatory instrument was only filed for a city code violation on February 18—and not for each of the 80 successive days for which he was eventually fined—the court could impose a fine for only that single day. The presiding judge denied this motion.

This past March, however, an appellate judge ruled in Cox’s favor, remanding the matter for a resentencing confined to one day and thus a maximum fine of $1,000. The presiding judge then imposed that maximum amount, Cox told The Alt over the phone on Thursday.

“Everytime something comes up like this you have to hire an attorney, you have to take it to court,” Cox said, speaking of J.H.M.’s lawsuit. “This was supposed to be on the meeting [agenda] in March. Somehow [the city] lost the application, they didn’t pursue it…The project would have been completed by now…Now it isn’t even off the ground now because we’re going through all these legal battles again.”

“Listen, it’s been going on for the last 12 years of my life,” Cox continued. “Everytime you go to do something that’s right, they tell you you’re doing it wrong and they bring you into court.” He claimed the city’s efforts against him over the years have been “politically motivated.”

“The city’s been giving me a hard time and they’re not gonna stop,” Cox went on. “What they’re gonna do is—they’re hoping that I’m gonna die. I’m 75 years old and I’m gonna outlive all of them, alright? And you can put that in the paper.”

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