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Dan Hust | Democrat

From the left, Michelle & David Sager and their attorney, John Barone, listen during a public hearing about their concerns over a neighbor’s business.

Delaware to decide dispute

By Dan Hust
HORTONVILLE — December 21, 2010 — The battle between Jeffersonville residents David & Michelle Sager and Forbes March hit a heated crescendo this month.
The Swiss Hill Road neighbors have been fighting over March’s new kiln-dried firewood processing facility that faces the Sagers’ family home.
Upset with noise and traffic issues, the Sagers are demanding the Town of Delaware undertake a full site plan review instead of relying on Building Inspector Howard Fuchs’ determination that the facility is in compliance with local zoning.
March has argued that this is an attempt to curtail his right to operate a business in an area where agricultural pursuits have long been welcomed.
Thus the town’s Zoning Board of Appeals (ZBA) gathered on December 9 at the town hall in Hortonville to hear from both sides.
The Sagers’ side
“Our concern for this project, first and foremost, is the size it’s become, the project it’s become,” said the Sagers’ attorney, John Barone of Albany. “... This is not just an expansion of a driveway. It’s part of a business plan, really.”
With the Sagers sitting behind him, Barone neither chastised Fuchs nor demanded the removal of March’s business, which takes firewood from off-site locations, dries it in a kiln, and then sells it to individuals and retail outlets.
Instead, Barone urged the ZBA to rule that the Planning Board must conduct a site plan review that would look at traffic, noise, viewshed and operational concerns.
“[This] needed to be looked at differently – as a special use, which required a site plan review,” he said. “... You’re creating ... what could possibly be a large enterprise here.”
Fuchs had approved three permits separately – one for the driveway, one to lay a concrete kiln pad and one to build a pole barn – earlier this year. He had also determined that March’s operation is a principal permitted use in that part of the township, which is largely agricultural and rural.
Barone argued that the permits ought to be considered jointly as part of an overall use – one that does not fall under the current permitted uses, including agriculture and forestry enterprises.
“If you’re going to consider it an agricultural use, the trees have to be grown on the property,” Barone remarked. “That’s not happening here.”
Instead, trucks ship the raw wood in and then take the final product out. Some of those trucks, according to photos supplied by Barone to the ZBA, have gotten stuck on the Sagers’ front lawn and blocked traffic whilst trying to turn around in March’s driveway.
“Obviously the setup is not made for tractor-trailers,” Barone observed.
The Sagers and their neighbors, Nancy and Winfred Bivins, also spoke, in more heated and pointed remarks than Barone.
“This becomes a purely industrial use,” said David Sager, well-known as a county legislator, “because at no time is he raising anything on his land.”
The Bivins, who live on the north side of March’s property, contended that their concerns about noise and dust have only made March hostile to them.
“He told us he’s going to do whatever he wanted to do,” alleged Nancy Bivins.
“Your kiln runs all night long!” she said to March, sitting in the row ahead of her. “You have a port-o-pottie sitting in the middle of the field, visible from the road. Your kiln generates a lot of smoke, and that’s very unpleasant!”
She said her one-acre residence has been devalued by as much as $40,000 as a result.
“This has escalated way past what it’s supposed to be. ... It is not right,” Bivins argued, saying neighbors are feeling a degree of “hopelessness” about the situation.
David Sager contended that Fuchs should have reached out to the NYS Ag and Markets regulators for advice, while Michelle Sager argued that March’s pole barn is unstable and unfinished.
Fuchs replied that the barn is acceptable for use and has just a small amount of work left to complete it.
The Sagers’ friend and well-known Smallwood activist Jonathan Hyman was also in attendance.
“The project has been segmented,” he observed. “... The problem is, this thing did grow over time. ... Anybody who has been there has had to catch their breath and say, ‘Who approved this without a site plan?’”
“I know we live in the Sullivan West school district,” concluded David Sager, “but this isn’t the Wild West.”
March’s side
Save for an occasional response to comments, March let his attorney, Marvin Newberg of Monticello, address the ZBA.
“He did everything right, everything a responsible person is supposed to do,” said Newberg. “... And no one objected.”
As March had told the Democrat earlier in the year, Newberg contended that the Sagers had witnessed the creation of the kiln operation and, until the construction of the pole barn, had at least tacitly indicated they had no complaints.
“This is not someone doing something surreptitiously hidden in the woods,” Newberg pointed out.
He also argued that, save for that pole barn, all the issues of the Sagers have passed the 60-day limit for appeals.
“The only thing before you tonight is to determine whether the permit to build a pole barn was proper,” Newberg told the ZBA.
He contended that everything is in order and that March has invested hundreds of thousands of dollars in an enterprise that is now employing seven people.
“And it is an agricultural business,” he said, citing surrounding ag pursuits and the township’s Right to Farm Law. “They [the Sagers] can’t complain! They have no right to do it.”
March admitted that his operations can be noisy and dirty, but he said he’s made progress in cleaning up the site and continues to do so.
“It’s part of growing a new business,” March explained. “New businesses are messy.”
Newberg concluded that, since zoning laws can never be all-encompassing, Fuchs duly exercised his ability to make a choice.
“Your building inspector has the authority to use discretion,” he explained, “because things aren’t always black and white.”
The Town of Delaware’s side
During the hearing, Fuchs himself spoke, saying he would have made the same decision if he had gotten all the permit applications at the same time.
It was confirmed that March had actually applied for a special use permit, but according to Town Attorney Ken Klein, the planning board preferred Fuchs decide the matter.
Fuchs considered it a forestry enterprise – permitted under the zoning law – and thus felt it did not require site plan review.
“It’s not a sawmill under any circumstances,” he remarked. “... There is no lumber manufactured there.”
ZBA members Linda Roche and Bonnie Cunningham, however, had made repeated trips past March’s operation and came away concerned.
“I sympathize with all the people up there,” said Roche, saying everything looked neat in the area, “and then I got to this business. I was surprised and felt it didn’t belong there.”
She confirmed Nancy Bivins’ contention that loud music was spilling out into the countryside.
Roche advocated for landscaping and vegetational cover “because it’s just a mess. ... The driveway was just muck and mud.”
The board, however, agreed to consider the matter for another two months.
“I think we have had a lot thrown at us tonight,” mused ZBA Chairman Ed Sykes. “... We’re not going to make it [a decision] tonight.”
The hearing will continue – and possibly a decision will be made – on February 3 at 7:30 p.m. The public meeting will be held at the Delaware Town Hall in Hortonville.

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