Stephentown ZBA Developing Final EIS For Motocross Park

by David Flint
The Stephentown Zoning Board is in the process of developing a Final Environmental Impact Statement for Howard Commander’s Motocross Park proposed for a site off of Webster Hill Road in the southern edge of the Town. At their meeting on January 3 they listened to a summary of a ten page document from their engineering consultant, Mike Bianchino of CHA (Clough-Harbour Associates) in which he summarized and categorized public comments received on the Draft EIS that the Board accepted in October.
[private]Bianchino had reviewed the many comments received, summarized and categorized them and made recommendations to the Board regarding which could be considered substantive and need to be addressed for purposes of developing the Final EIS. Included was a letter from the Department of Environmental Conservation indicating that there was still some discrepancy regarding the delineation of wetlands. Most of the other comments, from attorney Lewis Oliver representing concerned neighbors, from the Mayor of the Village of East Nassau and from about 30 other individuals, had to do with issues raised earlier at Zoning Board hearings and meetings. These included concerns about noise, traffic, parking, air quality, drainage and runoff, lack of proof of economic hardship on the applicant, impact on the Kinderhook Creek and destruction of valuable farmland. Bianchino indicated that some of the comments, however, would require further clarification by the applicant as to how they will be addressed.
The Board passed a resolution adopting Bianchino’s summary and recommendations on the substantive comments that need to be addressed. Commander’s engineering consultant, Pat Prendergast, said that he would submit responses to the comments within the next two weeks.
Oliver tried to block any further proceeding until a new appeal that he lodged since the last meeting is resolved. He had appealed the inclusion in the record of a letter from Code Enforcement Officer Dean Herrick stating his opinion that no setback variance was required for the berms proposed to be constructed along a neighboring property line to cut down on noise from the Motocross Park. Oliver had three objections to this. He claimed the Code Enforcement Officer has no jurisdiction to issue an opinion to the ZBA on issues that do not concern him. But in any case he contended that Herrick should be disqualified from having any role in these proceedings because he had exhibited bias and prejudice in favor of the applicant. Herrick, Oliver said, had ignored requests from Oliver and others to issue a stop work order against Commander and instead had met with Commander at the site and approved of what he was doing and had subsequently written a letter to him in support of the project.
Thirdly, Oliver argued that Herrick’s opinion that there was no need for a setback variance was based on no rational grounds. Oliver could not see how the proposed ten foot high berm that would be topped with a six foot high fence would not be considered a structure or improvement that is prohibited by the Town’s Land Use Regulations from within 25 feet of a neighboring property.
Oliver’s appeal requested that Herrick’s opinion be stricken from the record and ignored and that a stay be placed on all proceedings until the appeal is resolved. Francis Roche, Howard’s attorney, countered that just as a court had ruled on an Article 78 appeal earlier by Oliver on the same issue, this appeal, too, was premature because his arguments could be considered later in Site Plan Review, assuming the requested use variance is granted. He also cited case precedents that such an appeal does not require a stay of proceedings.
The Board passed a resolution to transmit the appeal to the Planning Board for their opinion and to hold a public hearing on the appeal on February 7. But they also voted unanimously that there would be no stay on the proceedings. As Board Member Freling Smith put it, “We can keep chugging along.”[/private]