Aug 28, 2013 Jason Emerson Uncategorized
The argument over the process through which Cazenovia College must go to build a proposed fence around its turf athletic field is now in the hands of a state supreme court judge after attorneys for the college and the village appeared in Wampsville last Friday.
At issue is whether the college should be allowed to build the fence through the issuance of a simple building permit, as it believes, or whether it should be required to go through a full site plan approval process by the village planning board, as was determined by the village zoning board of appeals in April. Part of the argument rests on the village code enforcement officer’s decision that the fence is part of the overall 2011-12 turf field project and not a separate project as the college alleges.
The Aug. 23 court appearance was the result of the college filing an Article 78 legal appeal for the court to overturn the village zoning board of appeals’ previous decision and to direct the village code enforcement officer to issue the building permit that he previously denied.
The college’s permit application was to build a 1,420 linear feet fence (six feet in height and made of chain link with black vinyl coating) spanning the eastern, northern and western edges of the Schneeweiss Athletic Complex.
“This is about a perimeter fence. Really that’s all it’s about. It seems kind of silly that that’s why we’re here,” Cazenovia College attorney Kevin Bernstein told New York State Supreme Court Judge Donald S. Cerio last Friday. “This is not about the previous turf field project, although the village keeps talking about it.”
Bernstein maintained the college’s position that the fence is a separate project needed to protect the college’s turf field investment necessitated by the continual trespass of neighbors and village residents onto college property. He said the fence was “not anticipated” at the time of the field project and is therefore not an aspect of the previous project “at all.”
“The focus here is what the [village] code says and what the case law says,” Bernstein said. He said the fence “clearly” fits the definition of an accessory structure and therefore falls under the exception to a site plan approval.
During Bernstein’s remarks, Cerio questioned the assertion that the fence was a stand-alone structure unrelated to the previous field project. He also asked Bernstein whether, when questioning the interpretation of the village code, the village is not in fact the best entity to interpret its own code. “Should not the court defer to them?” Cerio asked.
“Not in this case,” Bernstein responded, saying that the village code enforcement officer and ZBA did not give “reasonable interpretations” of the code, but were in fact “irrational” in their interpretations. “They’re reading too much into the law,” he said. “We don’t think judicial deference is owed here.”
John Langey, special attorney for the village ZBA, said the college’s location in the C2 zoning district for secondary educational institutions requires full site plan review.
“If we were to accept the college’s position … and allow all accessory uses in the college district without site plan approval we’ll have turned the C2 district on its head,” Langey said.
Langey then referenced a college publication in which plans for the field project, including a press box, bleachers and field lighting, were mentioned, and said it proves that the fence is part of the previous turf field project, and, if the court upholds the college’s position, then those other accessory structures will certainly be built. “That’s not what was intended by a C2 zoning district,” Langey said.
Cazenovia Village Attorney Jim Stokes, who represents CEO William Carr in the case, said the only question in the case was whether the ZBA had a “rational basis” for its decision requiring site plan approval for the fence.
“The ZBA is entitled to deference,” he said. “The apparent argument that a C2 district is irrelevant is amazing to me.”
Cerio did not have any questions for Langey or Stokes during their comments.
After about 10 minutes of statements, Cerio asked the three attorneys to speak with him in his chambers. They were in there for four minutes, after which the arguments were closed.
Cerio will now review the case file and supplemental arguments from both sides and has 60 days in which to make a ruling.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at email@example.com.
Jason Emerson is editor of the Cazenovia Republican and Eagle Bulletin newspapers.