Petersburgh Planning Board Cases In Court

by Alex Brooks
On the very snowy night of February 23, the Petersburgh Town Court heard two enforcement cases brought by the Petersburgh Code Enforcement Officer on behalf of the Planning Board.
Newly elected Justice Paul Montgomery was the presiding judge, and he called the matter concerning Brian O’Donovan’s shaving mill first. O’Donovan was represented by attorney Ken McGuire of Brunswick, and the Planning Board’s case was argued by its Chairman, David Miller.
They began by relating to the judge the chronology of events which had led up to the present dispute, which are:
• in 2003 Petersburgh passed a Site Plan Review law which requires new businesses to have their site plan approved by the Planning Board,
• in 2007 Mike Smith set up a shaving mill on O’Donovan’s property next to the gravel pit and operated it there, without Planning Board approval, until early 2009,
• in 2009 Smith moved his mill down to Dave Hewitt’s farm and submitted his site plan for that location to the Planning Board, which was approved,
• in December of 2009 Brian O’Donovan and his son Sean set up a shaving mill in the same place where Smith’s had been, next to the gravel pit, and later in the month he submitted an application to the Planning Board for site plan review,
• a Public Hearing was scheduled for December 28; the Planning Board indicated that it was going to require road improvements and noise mitigation. O’Donovan’s attorney then said that he would be withdrawing the application, which he later did in writing, contending that the Site Plan Review law specifically exempts log chipping, which is essentially the same as making shavings from logs.
• The Planning Board voted to ask the Code Enforcement Officer to issue a stop work order to O’Donovan for being in violation of the 2003 Site Plan Review law, threatening fines if he defied the order.
Justice Montgomery asked each side to state their case. Attorney McGuire said a shaving mill is clearly exempted from Site Plan Review as part of logging operations. Miller responded that all of the activities listed as part of logging operations are exempted only when they are done between the stump and the delivery area. Once the logs are loaded on a truck and delivered somewhere else for processing, those activities are no longer exempt.
Justice Montgomery said, “I’m not going to make a decision on this tonight.” He asked both sides to submit a written memo to him stating why they believe this shaving mill is or is not exempted from site plan review. He asked that these briefs be submitted by March 18, and he would rule on it soon thereafter.
McGuire asked for a stay of the stop work order until the ruling is handed down, and Montgomery granted it, subject to a restriction on the hours of operation. It can be operated 7 am to 5 pm weekdays, 7 am to noon on Saturdays and never on Sundays.
Star Ridge Way
Next on the docket was the Planning Board’s action against the owners of Star Ridge Way requiring that they bring the road up to the specifications listed on the plat as conditions of Planning Board approval. Specifically, these are that the roadway have a 20′ wide traveling surface and that the turnaround at the end of the road be 60 feet in diameter so trucks can turn around there.
The owners of the road at present are Joan and Michael Buzerak, who were the developers of the 5 lot subdivision. The road was supposed to be turned over to the 5 lot owners when the last lot was sold, which happened in 1999, but it has not yet been transferred. The Buzeraks have sued the 5 lot owners to require them to accept ownership of the road, and that case is still pending in County Court.
Dave Miller, speaking for the Planning Board, said the notes on the plat, which became deed covenants, have the force of law and must be followed. He said the traveling surface of the road could not possibly be 20′ wide because the culverts across it are 20′ culverts and some of them cross the road on a diagonal. He also said there is not enough room to turn a pickup truck around at the top. He said the Buzeraks, as the developers of the subdivision and the owners of the road, are responsible for making sure the road stays in compliance with the plat and the deed covenants. He also said that having the road be a separate sixth deed was a violation of the terms of the Planning Board’s subdivision approval, which was for only 5 parcels.
Joan Buzerak said, “Our responsibility to take care of that road ended in 1999.” She said no complaints against the road were made until last year when record rains damaged the road. She said until that time the road was cooperatively maintained to everyone’s satisfaction.
Michael Buzerak said the turnaround is 60 feet in diameter and produced a picture of a 30′ long truck parked at the top, which he said was able to turn around up there. He said the roadway and the turnaround are up to specifications, but they look smaller because of vegetation encroachment. He said the road has not been properly maintained in the last five years.
Justice Montgomery said the documents defining responsibility for maintenance are the notes on the plat and the language in the deeds. He pointed out that in addition to road specifications, the notes on the plat say that the road is to be maintained by the owners of the five lots. He then asked the parties to submit to him all the relevant documents and said he would re-hear the case on April 13 after he had looked at the documents.