Petersburgh’s Case Against Shaving Mill Dismissed

by Alex Brooks
Petersburgh Town Justice Paul Montgomery sent out his ruling on July 19 in the Town’s enforcement action against Brian O’Donovan concerning his shaving mill operating behind the gravel pit off Church Hollow Road. The Town brought the action to compel O’Donovan to get site plan approval for the shaving mill under its 2003 Site Plan Review Law. O’Donovan and his attorney maintained that he was exempt from this law.
Montgomery came down squarely on the side of O’Donovan, dismissing the Town’s suit and finding that the language of the law supports O’Donovan’s claim that he is exempt. He found fault with the Town for even bringing the action, saying that if an impartial attorney had been consulted, the action would most likely never have been commenced.
The first reason that the law may not apply to the shaving mill, said Montgomery, is that the law seems to say that site plan review is only required when a Certificate of Occupancy will be required before using the structure.  The shaving mill is a portable piece of equipment not attached to any building and therefore not covered by the law.
In addition to this, if the law were applicable to it, it would be exempt because of the broad definition of logging included in the law. Although it does not specifically mention shaving mills, it does include chipping activities as part of the exemption, which Montgomery found to be very similar to shaving.
The Town’s contention that the logging exemption only applied to the processing of logs on the site where they were cut, Montgomery found not to be supported by the language of the law. Testimony of Town officials and Planning Board members about what their intentions were when framing the law was not compelling to Justice Montgomery, who felt the intentions must be clearly embedded in the language of the law.
Said Montgomery, “The exercise by a municipality of its power to restrict the use of private property is an awesome exercise of power. If undertaken, the municipality must use clear, unambiguous language. Property owners deserve to understand what is required. Any ambiguity in such a statute must be resolved in favor of the property owner.”
Mr. O’Donovan had asked that the Town be required to pay his costs and expenses because the Town’s action did not have a basis in law and was prosecuted in an inappropriate and disrespectful manner. Montgomery noted that this is a request for an “extraordinary remedy” and denied it, but he did say that “the Court was witness to shocking disrespect shown by a Town official” during the course of the action, which he found “offensive and disturbing.”  He concluded by warning the Town in these words, “The Town and all its officials should understand that recklessness in enforcing its statutes and disrespectful behavior in this court will not be tolerated.”