Apr 22, 2013 Jason Emerson Uncategorized
If Cazenovia College wants to build a six-foot-high chain link fence around its athletic complex in the heart of the village, a simple building permit application is insufficient and the college must undertake the full site plan review and approval process through the village planning board.
This was the decision of the village zoning board of appeals last week in response to the college’s appeal of a previous ruling to the same effect by the village zoning enforcement officer, whom the college felt exceeded his authority as ZEO.
According to the board’s decision, which was announced at an April 18 meeting, the village code requires site plan review for all land use activities in the village unless the project falls under a specific exemption, which the college fence project does not. The fact that the proposed fence is part of the C2 zoning district for post-secondary education facilities also necessitates “particular precautions” to ensure minimal impact on the surrounding area.
“On its face and pursuant to the provisions of the Zoning Regulations, it is clear that the issuance of a building permit for a perimeter fence at the subject premises requires site plan review and approval by the Village of Cazenovia Planning Board,” according to the determination, which was unanimously approved as a board resolution.
“The fence is not denied, but it must go through the planning board process,” ZBA advising attorney John Langey said. Langey acted as attorney for the board in this case because the regular ZBA attorney, Jim Stokes, recused himself since he is also the village attorney and represents ZEO William Carr.
“We were disappointed in the determination,” said Cazenovia College President Mark Tierno. “The college administration is in the process of reviewing the Village ZBA’s decision in its entirety and will consider all options in determining how to proceed. No decision has been made at this time.”
The issue, which has been ongoing since summer 2012, concerns whether or not the village zoning enforcement officer properly denied the college’s permit application to build a 1,420 linear feet fence spanning the eastern, northern and western edges of the its Schneeweiss Athletic Complex.
Carr determined in July 2012 that the fence was not an independent project but rather a part of the college’s 2011-12 $1 million turf field project, and therefore required further site plan review. In November 2012, when pressed for a written decision by the college, Carr said the college acted in bad faith — if not illegally — in separating the fence from the turf field project, an action he declared to be “segmentation,” or submitting separate parts of the same project for zoning approval individually instead of as a whole as a way to prevent a possible negative outcome of a site plan review.
The college rejected that ruling, declaring the fence was not only an independent project unconnected to the turf field, but that since the village had allowed the college to erect multiple other fences on its property in the past it must allow this fence as well.
The college appealed Carr’s decision to the ZBA on Feb.1, 2013, and the board held public hearings on the issue on Feb. 5 and March 26. Numerous village residents — primarily college neighbors — turned out at both public hearings to oppose the fence as well as filed letters and even legal briefs opposing the project to the board.
The board’s 29-page determination and resolution of the college’s appeal was read in full by ZBA Chair Philip Byrnes at the April 18 meeting. The decision detailed the entire history of the planning and zoning issues relevant to the college as an entity in the village, the college’s previous turf field project and the current fence proposal. It also detailed the village zoning regulations, as well as the authority of the ZBA.
The decision declared that a fence such as the college wants to erect is a structure, a structure requires a building permit and the village code requires site plan review by the village planning board for all land use activities in the village unless exempted under the code, which the college’s project is not. The board also declared that the college is in a C2 College zoning district, and, under the code, “all uses” located in the C-2 College District are required to undergo site plan approval by the planning board.
“The ZBA hereby rejects the argument that Section 180-111 must be read in a vacuum and without regard to other relevant sections of the Zoning Regulations. Rather, the ZBA determines that site plan review is mandatory in instances such as this where a perimeter fence will control access and usage of an athletic facility which has undergone a recent previous exhaustive site plan review,” the decision stated.
The board also rejected the college’s argument that since it must allow this fence to be built because previous fence construction had been allowed. The board said those fences were not comparable to the currently proposed fence in size and scope, and therefore the comparison was not applicable.
The board’s decision was based on its review of all past planning board minutes concerning relevant college projects and, specifically, “the way code physically reads” as to what a building project is, when it requires a building permit and what the authority of the planning board is to review such projects, according to Langey.
At the April 18 meeting, Langey stated for the record that ZBA members Tara Hartley and Sally Ryan had informed him that each had a relative that had publicly opposed the fence project — Hartley’s ex-husband and Ryan’s a son-in-law — but neither felt a need to recuse themselves from voting, feeling no bias existed on their parts. Langey said he informed Cazenovia College attorney Kevin M. Bernstein of the disclosures the previous week. Bernstein expressed no objection at that time. Langey, at the April 18 meeting, again informed Bernstein of the disclosures and asked if he had any comment. Bernstein responded that he “acknowledged” Langey’s statement and would let Ryan and Hartley make their own decisions on the propriety of voting on the resolution. Langey then said, “So for the record you have no objection?” Bernstein said, “I didn’t say that.”
Board member Howard Hart asked whether the board’s resolution specifically covered the issue of segmentation, which was brought up in Carr’s November response to the college.
Langey said that while the resolution does not specifically address the segmentation issue, the ZBA did refer to the segmentation argument “so it does cover it in that sense.”
After the ZBA’s resolution was filed last Friday, April 19, the college has 30 days to appeal the decision to the state supreme court. That process could take a couple of months, and that decision could then be appealed to the appellate court level in Albany, he said.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at firstname.lastname@example.org.
Jason Emerson is editor of the Cazenovia Republican and Eagle Bulletin newspapers.