Lawrence N. Gray, Esq.
Smithtown
Board of Zoning Appeals
c/o Smithtown
Planning Department
99 West Main
Street
Smithtown, New
York 11787
February 26, 2009
Re: EM-Jay Industries
Case Number 15886
Greetings:
In an adjudicatory context the word “recusal”
is not limited to refraining from voting on a case. It is not calling a case and then saying, “recuse myself and I
will ask Mr. Salerno to take over for me.”
One does not sit in the midst of a hearing on a case from which one has
recused one’s self because -- human nature being what it is -- presence is
participation whether it’s at the hearing on the merits or at
deliberations. Making a motion to adjourn is not
recusal. Presence exerts a subtle but
real influence that evades stenographic minutes or a public audience. Those for and against an application will be
remembered. Recusal means that one not
only leaves the room but has already avoided contact of any nature with the case, its participants and interested
parties, and has refrained from any discussion of it with other board
members. Merely not voting will not
suffice.
At the last
Zoning Board session on January 27, 2009 the Chairwoman called the EM Jay case,
stated its application and announced John Zollo, Esq. The record does not show the Chairlady leaving the room for EM
Jay Industries, “Case Number 1-15749, care of John Zollo, Esq.” Sitting there while Zollo related that “there
are numerous variances that are sought for this property which is an
interesting parcel on Montclair Avenue” is not a recusal. Later, the Chairlady called the EM Jay case
and again recited the application, followed by “A motion to adjourn, please.” It’s all very simple. Leave the dais. Leave the room. Another
member of the zoning board then announces that the Chairlady has recused herself
because there is a conflict of interest.
And on the record that other member is to state clearly and factually
what the exact conflict of interest is.
There must be a positive
environmental declaration from the DEW Department – a person other than
Russell P. Barnett because he has an apparent conflict of interest involving
the Montclair property and a person who was associated with a prior application
before the Planning Board to down zone from ½ to ¼ acre residential. It might be summarized with the words, “Robert
Fitzpatrick.” Finally, variances are
not given to legalize what has been flagrantly illegal, the sometime
protestations of doddering old barristers to the contrary notwithstanding. Doing otherwise smacks of criminal
influence.
Yours truly,
Lawrence
N. Gray, Esq