The village lost another round in court last week when Judge Patrick Monserrate ruled in favor of Aida Ostapeck, who was charged last summer with a violation of the village zoning law in regard to her weekly rental at 2 Pine Boulevard.

In his decision, the judge found that not only was Ostapeck a pre-existing, non-conforming use, and in compliance with the law, but that the zoning board of appeals had overstepped its authority.

In June, Ostapeck was issued a notice of zoning law violation and a month later, in accordance with the law, she filed an application for an interpretation of the zoning law by the zoning board of appeals.

In August, Ostapeck told the ZBA the property had been rented out consistently since 1999 by the week to tourists. The use, she contended, was the same as David Soule's at 47 Chestnut Street when he was charged with violations of the zoning law.

Soule's case lead to an Appellate Division decision which upheld the use of his property. The village subsequently changed the zoning law, but Ostapeck believed her use is a pre-existing, non-conforming entity and should be allowed to continue in a manner consistent with the Soule property.

The ZBA held a public hearing on Ostapeck's request for an interpretation in September and in November voted to uphold the zoning enforcement officer's decision.

Judge Monserrate agreed with Lester Sittler, Ostapeck's attorney, about the similarity to the Soule case.

"The court is unable to distinguish this case from Soule v. Scalici," the judge wrote. Following the Soule case, the village changed the law, but, the judge determined, "petitioner [Ostapeck], like Soule was renting on a weekly basis prior to the amendment and therefore continued as a proper nonconforming use."

The judge rebuked the ZBA and it's chairwoman Susan Snell for its actions in reviewing Ostapeck's appeal of the violation.

"In obvious recognition of that circumstance [Ostapeck's proper non-conforming use] - and a like determination to circumvent it - Ms. Snell resorted to construing another phrase of the code (i.e., "otherwise lawful") in a manner which would permit the ZBA to seal petitioner's 'tourist accommodation' fate. Her 'interpretation,' as well as its application, was irrational and without basis in law or fact," he wrote.

"The ZBA likewise exceeded its authority when it denied an otherwise proper prior non-nonconforming use on the basis of perceived irregularities or violations of the building code or tax laws," he wrote.

Even if the ZBA had the authority it assumed, "its determination was wholly lacking in any factual support in the record. There was no evidence of code violations of any kind by Letitioner. Instead, the record merely reflected the musings of chair Snell that petitioner's use of the property was not 'otherwise lawful' and of member Rick Jagels to the effect that he 'has not been convinced' that petitioner was in compliance with the referenced regulations," the judge concluded.

Sittler said Monday that he and his client were pleased the outcome. "I think the decision says it all," he said.

While uncertain what the implications are for others operating week-long rentals, he did say that it is time for the village to recognize the idea that there are folks out there that were doing this before the law changed.

Village attorney John Lambert commented that this was a situation when the judge believed Ostapeck was a pre-existing, non-conforming entity, but that the village sees it as a "case-by-case" situation.

"Ostapeck had enough evidence. She crossed all the Ts and dotted all the Is," he said.

He said the village will not appeal the decision.

Lambert said the village will continue to enforce the zoning law, but what it is really after is to bring everyone into compliance with the law. "We don't want to get into the situation where we're doing an Article 78 hearing each month," he said.

Wednesday night during another zoning law workshop, Lambert planned to talk to village officials about changes in procedure which would help strengthen the record of proceedings and enhance the village's chances if it is back in court again.

ZBA chair Susan Snell said only that she was disappointed with the ruling and that she plans to discuss the decision at Wednesday's meeting.

"I am disappointed in the court's ruling. The village receives more complaints about non-owner occupied tourist accommodations than any other single nuisance. I hope that the owner of this property respects their neighbors and the rest of the village by insuring that the transient renters abide by the rules and respect the neighborhood," mayor Carol Waller said Tuesday. "It is rulings like these that force us into lengthy, time-consuming, expensive reviews of our draft laws and why crafting new regulations takes so much time.

"It is difficult to maintain the character of the village of Cooperstown without careful regulation of transient tourist accommodations," she continued. "That is why we have a moratorium on new applications while the revision of the regulations is underway."

Code enforcement officer Al Keck, who cited Ostapeck for the violation, remained upbeat despite another defeat for the village.

"Court is another world. I'm getting my law school education by getting back up off the canvas and going at it again," he said Monday morning.

Keck commented that he is still in pursuit of other weekly rentals in the village, but does not anticipate seeing people come forward as a result of the hearing and claiming to be pre-existing, non-conforming uses.

"The ones I'm pursuing are Johnny-come-latelies or extensions. I don't see any others like Ostapeck," he said.