Determination On Motocross Set Back Variance Reversed By Stephentown ZBA

by David Flint
A contentious issue standing in the way of finishing up the environmental review of Howard Commander’s proposed Motocross park became moot at the Zoning Board of Appeals meeting last Thursday, February 7. The question was whether a setback variance was required for an earthen berm topped by a fence that is proposed to be constructed along a neighboring property line to cut down on noise from the park. The Board had received a letter from Code Enforcement Officer Dean Herrick indicating that no such variance was needed.
[private]Attorney Lewis Oliver representing concerned neighbors appealed that determination, arguing that the proposed ten foot high berm topped with a six foot high fence should surely be considered a structure or improvement that is prohibited by the Town’s Land Use Regulations from within 25 feet of a neighboring property. An advisory opinion was requested from the Planning Board and a public hearing was scheduled preceding this regular meeting. There was no advisory opinion from the Planning Board because at their meeting on January 31 the four members present voted 2-2 on the issue.
In the public hearing, however, Commander’s attorney, Francis P. Roche, declared that while not conceding Oliver was right in his arguments, he was prepared to submit an application for the setback variance. He also agreed to support the opposition’s request that Herrick’s determination be reversed. In the regular meeting the Board Members present – Roland Barth, Richard Sime and Peter Ellard – proceeded to do just that by a vote of 3-0. Absent from this meeting were Freling Smith and Joseph Champion.
A previous appeal from Oliver and a subsequent Article 78 proceeding filed by him had to do with an area variance for the proposed access roadway for the park which runs along the same property line. The County Court ruled that the Article 78 was premature because a use variance to allow the park in a residential zone had not yet been granted and the question of an area variance for the roadway could be taken up later at site plan review. Roche said that although he was prepared to submit a request for an area variance for the berm now, he would prefer that this issue also await the Zoning Board’s decision on the use variance and be considered during site plan review, if it gets that far. The proposal for the berms as well as other things currently in the project plans, he said, could well be changed during that process. Oliver did not agree to this, however, saying that the purpose of SEQR is to get a complete picture of all potential environmental impacts and consider alternatives.
A letter to the ZBA from the Rensselaer County Bureau of Economic Development and Planning appeared to support Roche’s view. Director Robert Pasinella wrote that local considerations should prevail but that the process of minimization and mitigation of environmental impact “may continue after the SEQR proceedings and if the use variance is approved until the site plan review is completed. In normal reviews of commercial developments not requiring use variances the identification of the need for an area variance usually occurs during site plan review, especially where changes can yet occur which may make the need for the area variance unnecessary.”
Proceeding with the SEQR process, Commander’s engineering consultant, Pat Prendergast submitted a Final Environmental Impact Statement (FEIS) that he said answered all the issues raised last month by the Board’s engineering consultant, Mike Bianchino of CHA (Clough Harbour Associates). A copy would be delivered to Bianchino the next day for his review. The Board can then decide at the next meeting whether to accept the FEIS.
Brainard Road Property Dispute
Another public hearing held by the ZBA on this date had to do with a property infringement dispute on Brainard Road. Attorney and surveyor Joanne Darcy Crum of the Albany law firm Lemery Greisler LLC, representing David and Tammy Gorman, submitted an appeal of Herrick’s decision last September to renew an expired building permit to Henry Warner who owns property adjacent to the Gormans. Crum alleges that improvements made by Warner including a house, garage, driveway, utilities and part of a septic system were apparently made almost entirely on the Gormans’ land.
Warner conceded that the house did encroach on his neighbors’ land but it was not completed once he realized that the property line had been breached and there has been no further construction since then. He said he would relocate everything to his own property but was seeking time to reach a settlement.
But according to Crum, a temporary Certificate of Occupancy and an extension of the Building Permit were granted after it became known the improvements were on the Gorman property. Crum had also alleged earlier that the Gormans initially contacted Warner to arrange some kind of settlement but that he was not interested. She argued that a stop work order should have been issued but instead the Building Permit was inappropriately extended. She contended that Herrick erred in granting the renewed permit and requested that the ZBA rule on its correctness and that any temporary Certificate of Occupancy be revoked.
Herrick appeared at the beginning of this hearing to make a brief and angry statement.  He cited Chapter 476 of the State Laws of 1999 that specifies that “any interpretation or determination of the administrative official charged with the enforcement of the zoning local law or ordinance shall be filed in the office of such administrative official.” The appeal was to come through his office, Herrick said, and then he would file the paperwork and turn it over to the ZBA, but he had received no notice at all of this appeal. Herrick also challenged the ZBA’s authority to have Craig Crist representing them on this matter. Crist is not an employee of the Town, and only the Town Board can authorize paying him to represent the ZBA on a particular matter. “This whole thing is illegal, and I’m not going to stand here and be part of it,” Herrick concluded.
Reached later by phone, Herrick said he had extended Warner’s Building Permit only to allow the parties time to reach some sort of agreement regarding the property encroachment.
The Zoning Board, preoccupied with the Motocross matter, passed a resolution to table any action on the Gormans’ appeal till next month.[/private]