July 3, 2012 —
The question of whether board members in the Town of Liberty acted improperly when they changed the zoning from residential to industrial commercial will be settled by a judge. The land in question is about 39 acres, comprised of four parcels that are now a heavily forested mountain that sits on the border between the Town of Liberty and the Village of Liberty on Route 17.
Ben Weitzman and Son want to operate a junkyard or an automobile recycling operation on the site but, until December 2011, the land was zoned for residential use. The board, at the time, said that it had mistakenly changed the zoning to residential some months earlier, and it passed a local law to “correct an error.”
Four neighbors of the property filed an Article 78 lawsuit asking the court to overturn the local law because it was improperly done. The lawsuit points out that several maps showing the re-zoning process going back to 2007 all indicate the proposals for the parcels to be changed to residential, which would match almost all of the surrounding property, with the exception of one small industrial commercial lot, which was grandfathered to allow an existing asphalt plant to continue to operate.
The zoning update process dragged on for years, and the town board voted to formally adopt a town-wide zoning update in early 2011, which included changing the parcel in question to residential. The lawsuit by the residents says the vote that changed the zoning of the property was in line with the intent of the comprehensive plan that was jointly developed by the town and the village, which envisioned attracting industrial activity to a different part of the town, below the village, but which would still have ready access to Route 17.
The lawsuit says that state law provides for a zoning amendment but does not provide for a “correction.” By not treating the change as a zoning amendment, the town was able to avoid going through a State Environmental Quality Review process and environmental assessment.
Additionally, the Sullivan County planning department recommended that the town treat the matter as a zoning amendment and not a correction, saying, “This will allow the public input to revolve around the zoning map change.” The suit says the town did not react properly to that recommendation.
The response from the town, on the other hand, says that the suit should be thrown out because there are three property owners who were impacted by the change from industrial commercial to residential and back again, who were not included in the lawsuit as they should have been.
There were several responses to that: one was that two of the owners had indicated that they did not want a junkyard on the site, and another was that the owners in question did nothing to prevent the change of zoning when it was first proposed in 2007.
Now, it’s up to Judge Christopher Cahill to decide where the case will go from here.
According to some, the most important problem with this location is that it would be extremely disturbing to the hundreds of town and village residents who live in very close proximity to the area in question. Noise, dust and traffic will greatly increase, and as a result property values will decrease.
Jeffrey Cohen is one of the four property owners bringing the suit. He said he has a number of concerns with the planned junkyard. The property is very steep, and the project would involve moving large amounts of earth down the mountain that sits beneath the 20 acres he owns, which would detract from the value of his and his neighbor’s property.
Additionally, the creation of several acres of impervious surfaces is likely to result in significant runoff complications.
Cohen’s view is that it would be best for everyone involved to locate the junkyard in the industrial commercial zone south of the village where it would not interfere with residential zoning, and where the community had planned for those sorts of businesses to be located.