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Did Town of Delaware violate its residents’ rights?

By Dan Hust
JEFFERSONVILLE — February 22, 2011 — Jeffersonville residents David and Michelle Sager have tried to make the case for why the Town of Delaware should have put neighbor Forbes March’s kiln-dried firewood operation through a more rigorous site plan review process.
But even during their December testimony to the town’s Zoning Board of Appeals (ZBA), they were repeatedly interrupted and cut off, with ZBA Chairman Ed Sykes maintaining the ZBA had a very narrow focus, based on a 60-day limit for appeals.
They then lost their appeal in February on that timeliness technicality – as did neighbors Winfred and Nancy Bivins, who had filed an appeal two months later than the Sagers because they said town officials had indicated a formal appeal wasn’t necessary to address their concerns.
That technicality was based on counting not from the date of the final permit issued – for the pole barn on July 7 – but from the first and/or second permits issued in late April and early May.
What about pole barn?
One of the points the Sagers attempted to raise is the issuance of three separate permits over the course of four months.
According to the NYS Dept. of Environmental Conservation (DEC), segmentation is defined as “the division of the environmental review of an action so that various activities or stages are addressed as though they were independent, unrelated activities needing individual determinations of significance.”
Since no site plan review was undertaken, neither was an environmental review.
Delaware Building Inspector Howard Fuchs said each permit he issued – for the driveway, for the kiln pad and for the pole barn – involved permitted uses, and he maintains he was aware of the need for each prior to the issuance of the first permit.
He added that this multi-permit process is routine with new construction in Delaware: the driveway permit is issued first to allow workers access, followed by other permits as the stages of construction proceed.
But what about cumulative impacts, and that this is a business?
“If I make a determination it’s a principal use, I can’t put any stipulations [on it] other than meeting zoning and state rules,” Fuchs explained.
Then there’s the fact that plans for the 4,000-square-foot, 16-foot-high pole barn didn’t appear in town files until July, by which time the business was already in operation.
The ZBA, in the resolution rejecting the Sagers’ appeal, argued the neighbors should have realized on their own the extent of the operation, based on the driveway and kiln pad’s arrival two months prior.
But a sketch filed with the town by March in late April/early May – as part of his driveway/slab permit applications – only illustrated a 60x30-foot staging area, a 16x30-foot bagging area, the kiln pad and a driveway.
“How would I know what was going to come based on a driveway permit in April?” David Sager pointed out. “It wasn't until he started putting up the pole barn that it was, ‘Oh my god, what’s going on here?’
“We would never have given any kind of permission for anything like this.”
A new approach?
Despite the disagreements, town officials concede that changes are coming as a direct result of this issue.
“I think something is going to be looked at,” Fuchs acknowledged. “... It’s not a static thing here.”
Even though he doesn’t believe there are problems with noise and smoke, Fuchs admitted such an enterprise is typically not “pristine.”
“There’s certainly an amount of mess associated with an operation like that,” he said.
“Its appearance is not good,” Supervisor Scheutzow remarked. “Would I want it across from me? Probably not. But it is legal.”
A former Delaware building inspector himself, Scheutzow said he agrees with Fuchs’ and the ZBA’s decisions.
Nevertheless, he added he’s begun discussing with colleagues potential “modifications” to town policies and procedures in this area.
He and Fuchs declined to give details.
“It’s hard, because if you try to restrict business too much, you can cut off your nose to spite your face,” Scheutzow argued.
Whatever changes are made likely won’t be retroactive, and Sager has no confidence he’s being dealt with fairly by Delaware, a town he currently represents on the County Legislature.
“I feel I am being railroaded,” he stated of the town’s actions. “... I don’t believe it’s all aboveboard.”
For now, the New York Firewood Company continues to operate without further action from the town.
The Sagers and the Bivinses, meanwhile, are considering a few options: sue the township, take advantage of a “dispute resolution committee” offered in Delaware’s Right to Farm Law, and/or appeal to the state Ag and Markets commissioner.

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