By CAROLINE MURRAY
MAYFIELD -- Exotic cat owner Steven Salton's ongoing attempt to keep his three tigers and two leopards on his Route 30 property was shut down by a Fulton County Supreme Court judge Monday.
But, the exotic cats will remain at Salton's residence until Judge Richard T. Aulisi withdraws his stay on a cease-and-desist order town code enforcement officer Michael Stewart served Salton in April last year.
The decision released Monday dismisses Salton's lawsuit filed against the town zoning board of appeals last year, after the board denied him a variance to officially grant an exception to a town zoning law.
Aulisi ruled in favor of the town, stating the board does not have the authority to hear Salton's variance request, and the statute of limitations expired prior to the lawsuit's filing.
"Therefore, the petition is denied in its entirety and this matter is dismissed, without cost," the decision said.
Town attorney Carmel Greco believes the order is in effect immediately now that Aulisi reached a decision, meaning Salton has 30 days to remove the exotic cats from his home.
Alternatively, Greco said Salton's attorney, Christian J. Soller, believes the order does not go into effect until 30 days after Aulisi cancels the stay, which gives Salton an additional 30 days to remove the animals from his home.
"The decision didn't actually spell that out. Mr. Salton's attorney and I are asking Judge Aulisi for a definitive answer when the stay on the cease and desist order is actually lifted," Greco said.
Soller could not be reached for comment.
The exotic cat debacle stems from an ongoing legal battle between Salton and town officials over whether his cat exhibit at his 3240 Route 30 residence is a home occupation.
In June 2011, Stewart notified Salton that his exotic cat exhibit, Natasha's Helping Hand, is a business and violated the town code by operating an "unauthorized home occupation" in a residentially zoned area without a permit. Salton filed a lawsuit that year, arguing his operation is not a business, and was grandfathered-in before the 2005 zoning law took effect.
A supreme court decision ruled in favor of the town, and so Salton appealed to the higher courts.
The state Appellate Division's Third Department upheld the Supreme Court decision in April, stating his cat exhibit is a business, and was not grandfathered-in before the 2005 zoning law.
The article 78 proceeding filed last year, was put on hold while the appeal was pending in court.
After losing his case in the higher court, Soller and Greco met at Fulton County Supreme Court July 14 to argue the proceeding.
The decision released Monday dismisses the petition for several reasons.
According to the decision, Salton applied for a variance from the zoning board of appeals on May 21, 2013. The board denied the application one month later on the grounds the they did not have the authority to hear the request.
Greco said despite forewarning, Salton appealed to the board again on July 24, 2013 and the board did not respond "believing the appeal was improper."
The decision states Salton's request originates from a decision made by the town code enforcement officer.
On these grounds, the decision argues Salton should have approached Stewart about a variance first, and then appealed to the zoning board of appeals if Stewart denied his request.
Otherwise, the board does not have the authority to hear the variance.
"Salton should have first gone to the code enforcement officer Mr. Stewart on the question of the variance," Greco said.
Additionally, the decision argues Salton's appeal to the board was not submitted within a 60-day time period, which is allocated by a New York State Town Law.
His original appeal dates back to May 21, 2013, and the court argues Stewart's determination regarding an unlawful home occupation occurred in June of 2011.
Also, the decision states the article 78 proceeding was filed on October 24, 2013, which is 119 days from the zoning board of appeals decision. Salton's appeal is ineffective based on the statute of limitations.
Additionally, the court sides with the zoning board of appeals stating Salton is seeking a variance for a town law that does not exist.
"There is nothing within the zoning law of the town of Mayfield that prohibits the housing of wild or exotic animals," the document states.
The decision states Salton lives in a R-1 residential district, and according to the town's zoning laws, no resident can run a home occupation while living in that zone. "Therefore, petitioner's argument seeking a departure from the terms of the Town's zoning law is misplaced," the decision states.
Town supervisor Richard Argotsinger and code enforcement officer Stewart could not be immediately reached for comment.
Greco said he expects to hear from Aulisi today about when the cease and desist order goes into effect.