By BENNY FAIRCHILD
MASSENA - An obstetrician/gynecologist has received an order from the town's Code Enforcement Officer directing him to stop operating his practice out of his home at 50 Old River Road.
Code Enforcement Officer Gregory C. Fregoe said a cease and desist order was issued on March 21 and received by Dr. Miljan R. Stankovic the next day.
“He's running his office out of his home in violation of zoning rules,” Mr. Fregoe alleged. “We've had calls here that made us aware that he was running his office out of his home.”
The issues between Dr. Stankovic and the town date back to May 2011 when the town's planning board rejected the doctor's initial use variance request.
After that application was rejected, Mr. Fregoe said Dr. Stankovic then filed an Article 78 suit against the town, which was adjourned pending the outcome of a second application made by Dr. Stankovic.
Mr. Fregoe said the second application was made to the planning board in an effort to have his business classified as a home occupation. However, Mr. Fregoe said that application was deferred back to the zoning board for clarification on whether a medical office could legally be considered a home occupation.
The board ruled it could not. and Dr. Stankovic continued with the Article 78 appeal.
New York State Supreme Court Justice David R. Demarest ruled in March the case should go back before the zoning board.
Mr. Fregoe said that meeting was scheduled to be held last week, but that session was postponed at the recommendation of the town's attorney.
According to court documents, Dr. Stankovic is planning to use 772.8 feet of his 4,000 square foot home as an office to conduct a portion of his practice.
“I will continue to perform 80 percent of my physician duties - namely, delivery and surgeries - at the Massena Memorial Hospital,” Dr. Stankovic wrote. “I will have no sign other than a small nameplate. I will display no products, I will keep no stock in trade, I will use no mechanical or electrical equipment except that is customarily used in homes (i.e.) personal computer), my home will continue to appear as a residence, I will have only two employees other than the inhabitants of my home, my home occupation will not significantly increase traffic in the vicinity, (I anticipate only one to two cars per hour during my office hours of Monday through Thursday, 7 a.m. to 2:30 p.m.). my office consultations in my home will not cause any offensive noise, vibration, glare, fumes, odor or electrical interference of any kind.”
In his decision Judge Demarest wrote, “He plans to employ two people: a bookkeeper and an assistant. Application of these two provisions respecting who can conduct the business and the number of employees permitted to engage in the profession do not prohibit the issuance of a Home Occupation Permit.”
But Judge Demarest said there were other issues left on the table.
“However, Respondents' inquiry does not end there. Clearly, an ultrasound machine is prohibited electrical equipment since its not customary household equipment. Whether a medical examination table constitutes prohibited medical equipment pursuant to the code remains to be determined.”
In returning the case back to the local zoning board, Judge Demarest wrote, “This matter must be referred to (the town) to determine whether (Dr. Stankovich's) request to establish his medical practice in his home constitutes a “home occupation” under the town's zoning code for which he should be issued a permit. The determination as to whether the use is harmonious with the general zoning plan and does not adversely affect the neighborhood is dependent upon facts not yet to be considered by respondents.”
Despite having his proposal rejected twice by the town's zoning board and a court ruling that deferred the again pending case back to the zoning board, Mr. Fregoe said it's his understanding that Dr. Stankovic is continuing to see patients in his home.
“We issued a cease and desist order and he continues to operate in violation of that order,” Mr. Fregoe said.
In the order, which was dated March 21, Mr. Fregoe wrote, “It has come to the attention of the Code Department of the town of Massena that you are operating your doctor's office out of your home ... This action is a violation of the Town of Massena Zoning... Your failure to take this action will result in a summons being issued.”
A copy of the letter was also sent to town attorney Eric J. Gustafson.
And Mr. Fregoe said that's where the stands now. “The matter has been sent to the town's attorney for further legal action,” he said.
When reached Tuesday evening, Dr. Stankovic emailed the following statement, outlining why he feels he should be allowed to practice at his home.
“On May 20, 2011 I applied to the Massena Planning Board move my business Family Obstetrics-Gynecology to my 50 Old River Road property. The planning board chair refused to schedule a hearing because the zoning board ruled that a doctor's office did not meet the definition of home occupation.
“I appealed their decision in the Supreme Court. A few days before the scheduled court hearing (September 2011), the planning board accepted to meet and discuss the site plan. On Sep 26, 2011, instead of approving or declining my application, the planning board requested an opinion from the zoning board whether or not my business met the definition of home occupation. The zoning board met on October 6, 2011 and declined me.
"After the meeting, Massena Code Enforcement Officer Gregory C. Fregoe made the following statement (Courrier Observer Vol. 23 No. 104 Oct 7, 20): “Dr. Stankovic's request to relocate will still go before the town's planning board. But based on the zoning board's Thursday ruling, that request will likely be denied.” The Planning Board meeting that was scheduled for October 20, 2011 was canceled without notice.
"I wish Mr. Gregory Frego, before mailing the cease & desist Order, reviewed the article 207-41 of the Massena Zoning Law, Paragraph E: 'The Planning Board shall act to approve or disapprove any such site development plan within 62 days after the meeting at which approval is requested. Failure to act within 62 days shall be deemed approval.'
"I again, appealed the October 6, 2011 zoning board decision in the supreme court.
"After being served the petition, the planning board realized that they broke the sixty-two-day deadline. They met on December 6, 2011 - 71 days from the September 26, 2011 hearing - and disapproved my application.
"Had Mr. Fregoe, the code enforcement officer, followed the town code, he would have issued the certificate of occupancy instead.
"On February 28, 2012 the supreme court ruled in my favor, stating that that the town Of Massena, Massena zoning and Massena planning boards denied the permit on the incorrect basis. The court put everything back to the town of Massena, town of Massena zoning board, and town of Massena planning board to determine whether the proposed use is harmonious with the general zoning plan and does not adversely affect the neighborhood.”