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Zoning lawyer appalled by Owera actions

LETTER TO THE EDITOR

To the editor:

I'm a long-time Caz resident and a zoning lawyer. I'm appalled at how Owera Vineyards has manipulated the right-to-farm law to create a catering business that steals from its residential neighbors by robbing them of their peace and quiet.

After 30 years as a litigator, I've learned a critical lesson. Half the battle is choosing your ground. Currently, the town is standing on the wrong legal ground. It is struggling to regulate Owera by setting conditions for site plan approval. But the underlying assumption of the site plan process is that Owera's catering business has a right to exist. What's needed is a different zoning process where the underlying assumption is that Owera's catering business has no right to exist.

This is the underlying assumption of the special use permit process. An applicant for a special use permit needs the permit because the proposed use is prohibited. The town's zoning law prohibits Owera's catering business because it is incompatible with the surrounding residential use. So far, Owera has successfully argued that the right-to-farm law exempts it from having to obtain a special use permit. The critical issue is whether its catering business is part of its farm operation.

It isn't.

The special use permit process allows the town to prohibit land uses — including uses in an Agricultural District — that are conducted at an “intensity” incompatible with “existing residential … structures,” and which “will … cause excessive noise … or glare.” Thus, the special use permit process would allow the town not merely to set conditions for Owera's catering business but to outlaw its catering altogether. Many of us remember that the special use permit process was the means by which Wal-Mart was prevented from coming to Cazenovia.

So how do we bring it to bear on Owera? Everyone has been frustrated by the way Owera has succeeded in hiding behind the right-to-farm law. There is a way to cut through this Gordian Knot — a means by which the neighbors could seize the initiative. There is a provision in the right-to-farm law that allows “any person” to force the Ag and Markets commissioner to rule on whether Owera's catering business is “agricultural in nature.” The commissioner must make this ruling if Owera's neighbors request it; the law is written in mandatory terms. If the commissioner rules, as he should, that the catering business is not a protected agricultural practice, then the town could proceed to outlaw it via the special use permit process.

But if the commissioner rules in favor of Owera, this ruling could be challenged in state court and overturned. Put to its proofs in court, Owera would be hard-put to show, as it must, that farming rather than catering is its dominant business. If the town were to decline to bring this lawsuit, section 268 of the town law allows the neighbors to commence it themselves.

The neighbors should take heart. And they should take action — now.

BARRY M. SCHREIBMAN

CAZENOVIA

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