Resident Prevails as Court Annuls Decision

by Cindy Goldstein and Kathy Savolt -

On March 12, 2025, the New York State Court of Appeals annulled a 2020 Village Zoning Board of Appeals (ZBA) decision regarding 130 Beach Avenue, Unit B owned by Stuart Tiekert.

This action came after more than five years and tens of thousands of taxpayer dollars spent on legal fees.  In 2019, the Village Building Department obtained a criminal search warrant to examine Tiekert’s home and charged him with multiple zoning and building code violations in response to an anonymous complaint. This happened at the same time Tiekert was vigorously criticizing the Murphy/Barberio administration’s handling of various issues and amid rumors that others critical of the administration were also targeted.

This case raises questions concerning the Village’s exercise of its enforcement authority and use of taxpayer funds to go after individuals who publicly challenge elected officials.

In a separate civil rights complaint filed with the US District Court for the Southern District of New York on February 5, 2024, (See HERE) Tiekert alleges that the Building Department charged him with the zoning violations in retribution for his public complaints about Village actions.  This action is still pending.

An Anonymous Complaint

In August 2019, the Building Department told Tiekert (and later the ZBA) that it had received a complaint about an apartment on his third floor.  The Building Department did not provide the date the complaint was received or the source.  Further, Charlotte Mountain - the Village Code Enforcement Officer at the time - told the ZBA that she had a chance encounter with Tiekert’s tenant during which she discussed his living arrangements.

When Mountain asked Tiekert for access to his home to view the third floor, he responded that he wanted to see the complaint that prompted this request, and that he wanted to give his tenant notice that the premises were to be searched.

Instead of complying with Tiekert’s requests, the Village obtained a criminal search warrant from the New Rochelle City Court to examine Tiekert’s entire home.  (Village Justices Christie Derrico and Dan Gallagher both recused when approached about the search warrant by the Village.)  The search was conducted by two police officers, the Fire Marshall and Mountain on September 9, 2019.

ZBA Review

Following the criminal search of the property, Mountain charged Tiekert with four zoning violations and three building code violations.  In response, in October 2019, Tiekert applied to the ZBA for an interpretation of the zoning violations and an appeal of the Building Department’s ruling.  See HERE.

At the ZBA hearing on those charges, Tiekert stated that he has been openly renting his third floor to a roomer for decades, and that he relies on the rental income generated which is legal under local and state law.

Tiekert also reported that the Village’s Building Inspector in 1999, Lenny Russo, visited the space and deemed it compliant with the Zoning Code.  In addition, Tiekert reminded the Board that under §342-21(B)6 of the Village Code, residents can share their homes with up to two “Roomers or Boarders”.

Tiekert also argued that the space does not include the “complete housekeeping facilities” which are required by the Code for a space to be considered a separate dwelling unit as it does not include a cooking range.  He further noted that it shares a common stairway with the other floors which also does not align with the definition of “Dwelling Unit” in §342-3 of the Code.

Despite those arguments, in a resolution dated September 20, 2020, three members of the ZBA, including Chair Robin Kramer, denied Tiekert’s appeal, determining, among other things, that the space included complete housekeeping facilities (despite the lack of a cooking range).  See HERE.

The other two members of the ZBA wrote a dissenting opinion citing what they believed to be numerous errors in the majority’s resolution.  See HERE.

Mayor Murphy Congratulates the ZBA

The next day, on September 21, 2020, Tom Murphy, who was Mayor at that time, sent an email to the ZBA applauding it for its “correct conclusion.”  In the same email, Murphy claimed he had personal knowledge of the matter and had considered offering testimony but decided otherwise. See HERE.

It is highly unusual for elected officials to weigh in on the decisions of land use boards.  As a quasi-judicial board, the ZBA is responsible for hearing appeals of decisions made by the Village, so its independence from the influence of elected officials is vital to ensure their decisions are based on objective criteria and not political or personal interests.

Tiekert Files Article 78

On October 28, 2020, Tiekert took the only legal action available to him and appealed the ZBA’s decision by filing an Article 78 lawsuit with the NYS Supreme Court.  Article 78 is a mechanism for individuals to hold government entities accountable for their actions and decisions.  In this case, Tiekert asked the court to review the decision of the ZBA.  See HERE.

ZBA Chair Signs a Personal Affidavit

The Village hired the law firm White Osterman & Hannah LLP to defend the ZBA’s decision against Tiekert’s lawsuit. 

The record of the proceedings that the Village submitted to the Supreme Court included a personal affidavit from ZBA Chair Kramer.  It is highly unusual that any member, much less the chair of the board whose decision is being reviewed, submits an affidavit representing their subjective views as it could be considered an indication of personal bias.  Her affidavit was notarized by counsel to the ZBA.

Bruce W. Miggatz, Nassau Lawyer, April 2003 (Newsletter of the Nassau County Bar Association) writes:

An affidavit of a board member prepared in response to an Article 78 petition seeking to annul the board’s decision, does not constitute findings of fact (Van Wormer v. Planning Board of the Town of Richland, supra). A board member’s affidavit is merely a conclusory hearsay statement of one member of the board of his or her recollection of alleged verbal findings made by the other board members. 

Since Kramer never claimed to have any personal knowledge of the facts of the case other than what had been presented to the entire board, her testimony appears to be simply her subjective reading of the matter.  In her affidavit, she goes beyond the scope of the ZBA’s findings, and attributes findings that the Board never voted on and which it did not include in its resolution. See HERE.

Supreme Court Denies Article 78

New York State Supreme Court Justice Anne E. Minihan denied Tiekert’s petition and dismissed the proceeding on April 13, 2021.  See HERE. Undeterred, Tiekert appealed Minihan’s decision to the Appellate Division.

Appeal is Successful

On March 12, 2025, the NYS Court of Appeals granted the petition, annulled the lower court’s decision and remitted the matter back to the ZBA for a new determination. The court’s decision included the following reasoning:

[The Village Code] unambiguously defines a dwelling unit as something that shares “no enclosed space” with another dwelling unit, and it is uncontroverted that the second and third floors of the petitioner’s condominium share an enclosed space, namely, a stairwell. The BOA’s contrary interpretation, which concluded that the petitioner created a new dwelling unit by modifying the third floor despite the continued existence of the shared enclosed space between the second and third floors, is inconsistent with the plain language of Village Code § 342-3(B).  Moreover, it was not established that the third floor contained complete housekeeping facilities for only one family, where, among other things, it lacked an oven or stove. Consequently, under these circumstances, the Supreme Court should have granted the petition.  See HERE.

Upon review of publicly available attorney invoices, it is estimated that the Village has spent over $75,000 in legal fees in this matter.  Despite the Village’s costly litigation efforts, the Appellate Division ruled that the ZBA’s finding was “inconsistent with the plain language of Village Code” and reversed the lower court’s decision that upheld the ZBA’s ruling.

Additional Legal Issues Raised

During the lengthy process to determine whether the dwelling unit at 130 Beach Avenue was legal, other important issues developed including whether the 2019 search warrant was legal and the role of the Building Department during the entire process.  These are in addition to the personal involvement of the Mayor and ZBA Chair.

Legality of the 2019 Search Warrant

At the ZBA’s final public hearing session on June 4, 2020, ZBA Member Gretta Heaney voiced concern that the standard for a criminal search warrant had not been satisfied when the Village made its request to the New Rochelle City Court.  Heaney pointed out that Mountain never provided the New Rochelle City Court with Tiekert's assertion that he was permitted to share his space with up to two roomers or boarders under the Village Code but instead informed the Court that such an arrangement was illegal.  Heaney described the warrant application as highly prejudicial as it included false claims that Tiekert had performed work that had been denied previously in a 1986 variance application.

Heaney also said: "When I read the warrant for the first time and read that provision, I got a significant negative inference that Mr. Tiekert was doing something nefarious,” and she wondered why the Village is going after Tiekert when there are numerous similar situations in the Village listed on Air BnB’s platform. (See HERE time stamp 1:04.)

Role of the Building Department During ZBA Review

In New York State, an appeal conducted by a Zoning Board to interpret a violation is considered a de novo review.  This means the Zoning Board starts from scratch to determine what should have been the decision of the Building Department.   It is not an adversarial proceeding in which the Village Building Department argues against the property owner.

Nevertheless, then Building Inspector Frank Tavolacci volunteered testimony during the course of the ZBA hearings criticizing Tiekert and also sent unsolicited communications to the ZBA in support of the Village’s claims against him.

Federal Civil Rights Complaint Filed

In his civil rights complaint filed with the US District Court for the Southern District of New York on February 5, 2024 (see HERE) Tiekert alleges that the Building Department charged him with zoning violations as retribution for his public complaints about Village actions. 

Tiekert also argues that former Mayor Murphy’s admission that he had personal knowledge of his use of his third floor leaves open the possibility that Murphy was the anonymous complainant that set off the building department’s investigation.

Next Steps

At the April 3, 2025 meeting of the ZBA, the Board discussed next steps to comply with the Appeals Court ruling. The litigating attorney, John Henry of Whiteman Osterman & Hanna, was directed to prepare a resolution nullifying the 2020 decision for a vote by the Board at a future meeting.