March 24, 2011 —
Whether the New York Firewood Company violated town code, and whether town officials must do anything about it, is a matter of interpretation of the rules.
Early last spring, Forbes March began constructing what was ultimately to become an operation that imports logs from outside of the property, cuts the logs up and dries the wood in a kiln. The wood is then bundled and trucked off to be sold at retail outlets.
The property on Swiss Hill Road in the Town of Delaware exists across the street from Sullivan County legislator David Sager and his wife Michelle, who have filed a lawsuit against March and the Town of Delaware Zoning Board of Appeals (ZBA). The Sagers are using the legal services of Ira Cohen, the Sullivan County treasurer, who is also a practicing attorney with an interest in zoning issues.
In February, the ZBA denied the Sagers’ appeal of the permits issued for the facility by Howard Fuchs, the town building inspector. The ZBA said that while there were some issues that could be questioned about the operation, they did not need to address those issues, because there is a 60-day window to appeal a permit issued by the building inspector, and the clock for that started ticking when the first permit for a driveway was handed out last spring.
But the driveway permit was just one of three. In June, a permit was issued for a concrete slab and the kiln, and in July a permit was issued for a pole barn. Sager appealed the matter in August.
Cohen said that because of the way the operation had been explained to the town and the neighbors as a “small firewood business,” there was nothing to indicate to Sager when the driveway was being built that this was going to become the light industrial operation that it eventually grew into.
Cohen said, “There is some case law that says you have 60 days from the issuance of a permit to appeal. But there is plenty of case law, that the ZBA didn’t cite, that says on the other hand you can’t expect people to run down to the town hall every day and say ‘what’s my neighbor doing?’”
In Cohen’s view, the clock on the 60-day appeal should have started ticking in July, making the August appeal legally timely.
The other important question in the case is this: how is the firewood facility classified under the town zoning code? Fuchs said it was a “forestry enterprise use,” which does not require a special use permit. But Cohen said that his understanding of the term, which is supported by information from the New York State Department of Agriculture & Markets and Cornell Cooperative Extension, a forestry enterprise use is one that would involve something like growing trees on the property or gathering forest products.
Because the operation involves bringing in logs from elsewhere and processing them, the operation actually belongs in another category in the town code called “agricultural products processing,” which requires a special use permit.
Had Fuchs at some point decided that the operation required a special use permit, the matter would have been referred to the planning board. This is an important step in the process because in granting a permit, the planning board has the authority to require conditions that might mitigate any negative impacts.
The Sagers have said in court papers the operation goes on from 7 a.m. though 11 p.m., seven days a week, sometimes including holidays; it is quite noisy and involves heavy truck traffic. These are conditions that the planning board could have mitigated with restrictions on hours of operation and various other measures.