ZBA Minutes – May 2014 | Town of Rochester

ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK

MINUTES of May 15, 2014 the Town of Rochester Zoning Board of Appeals, held at the Town of Accord Fire Hall, Accord, NY.

Chairperson Haugen De Puy called the meeting to order at 7:00PM.

Pledge to the Flag.

PRESENT: ABSENT: Beatrice Haugen- De Puy, Chairperson

Cliff Mallery, Vice Chair

Charlie Fischer

Steven Fornal

Troy Dunn

Also present:

Mary Lou Christiana, Attorney for the Town

Rebecca Paddock Stange, Secretary.

Robert Rominger, Applicant

Mark Sweeney, Mr. Rominger’s Attorney

Diane Schoonmaker, owner of Flying Change Farms

Patrick Williams, owner of Flying Change Farms

Michael Moriello, Attorney for Diane Schoonmaker and Patrick Williams

James Reynolds, Architect on behalf of Schoonmaker and Williams

Albert ‘Jerry’ Davis, Code Enforcement Officer Town of Rochester

PUBLIC HEARING

Robert Rominger, Appeal of CEO Determination requiring a Miscellaneous Permit as per Zoning Permit #10 of 2014 for indoor riding facility for Diane Schoonmaker located at 235 Airport Road, Accord

Mr. Rominger was present along with his attorney from Whiteman, Osterman, & Hanna, LLP, Mr. Mark T. Sweeney.

Chairperson Haugen De Puy noted that this meeting was for two Public Hearings as follows. She noted that this appeal is about a determination made by the Code Enforcement Officer (CEO) and whether his decisions were correct. She knew a lot of the members of the public at the meeting, some of them she didn’t know, but she did ask if everyone could stick to the facts at the meeting. This meeting was not about personalities and or individuals and their character, so if people could keep their comments to the land use issue, the Board would appreciate it.

Mr. Sweeney noted that he was representing Mr. Rominger to represent the appeal that is before the Board. As the Board knows they have submitted several submissions in writing to the Board outlining their position in detail. He referred everyone back to those. He would like to offer a brief summary. There were a lot of people here tonight to express their opinions as well. Basically what they were here about was if the determinations by the Building Inspector were relevant to the structure in question correct. He argues that they are not correct and that it was misclassified initially and instead of an agricultural building it should have been classified as Commercial Recreation Use and therefore subject to the Building Code, Fire Code, and Town Zoning Laws. That’s the basic embodiment of these appeals. They have set forth basic concerns that they seek to have addressed in regards to public health and safety due to the nature of the use that is going to be there. The basic position that they have been presented with from the other side is that it is an agricultural building and is exempt from the Building Code and exempt from Zoning. They have presented some materials that show that there are opportunities for Board’s to look at and Zoning Officers to look at under the Ag & Markets guidance relating to the public health and safety. Public health and safety for the type of use that this is whether it’s going to be children, lessons, parties, things of that nature for the use of the building that is going to invite the public in. Basically without having those issues being looked at it becomes determined that the membrane on the building is not fire rated. There have been submissions to that effect that are before the Board. That is really the crux of the issue. In short they believe it is not an agricultural building due to the nature of the use as outlined by the applicant and that the Building Inspector’s determination was erroneous. They believe that because the Zoning Laws of the Town of Rochester require that any use under the Zoning Law has to comply with the Building Code, it’s properly before this Board for their consideration. In any event this should have been classified as a Commercial Recreation Use, therefore requiring Site Plan Approval and a Special Use Permit.

Mr. Michael Moriello, Attorney for Diane Schoonmaker and Patrick Williams for their appeal and also as the respondents for the same people in regards to the appeal made by Mr. Rominger. Diane Schoonmaker, Patrick Williams and James Reynolds, Architect were also present. There will be others that speak on their behalf tonight, but he wanted to get a few procedural issues out of the way first. He has submitted a response to the appeal dated April 9, 2014 and they also submitted an appeal dated April 9, 2014. In addition they submitted an appeal and response addendum which is dated April 30, 2014. He didn’t want to revisit the material that was already submitted from a legal standpoint on the Zoning on the land use and the Building Code issue. As a procedural matter he did want to say that with respect to the Building Code issue, it is his contention and his clients contention that that issue doesn’t even belong in front of this Board. He has cited case law to that effect. He didn’t believe that the ZBA has jurisdiction to hear appeals against the Building Code. The Board determined that and they have a very capable attorney representing them. Be that as it may, they did want to protect the record with respect to the Building Code. Even though they didn’t think the ZBA had jurisdiction to hear anything regarding the Building Code, his clients would be submitting documentation and information from James Reynolds, Architect on the Building Code issue. He has never adopted a position that stated that the Building Code is totally inapplicable. That isn’t their position. It is their position that this is an agricultural barn and an agricultural use. He didn’t’ think that there was any other way that you could logically look at this. When you examine the Zoning Code, when you examine the Ag & Markets Law, when you examine the Building Code, this screams agriculture. But more importantly what screams agriculture is this 26.5 acre parcel and an agricultural building and people who have been committed to agriculture since 1991. They make their living off of agriculture—their whole life is built around agriculture, just as many of the people at this meeting tonight. It’s his contention that the Building Permit was lawfully granted and that the Certificate of Occupancy was lawfully granted. He wouldn’t go into all those reasons for that, but he would say in his opinion, and this was not meant to be pejorative towards Mr. Rominger, but in his opinion this appeal and argument is not solely about safety. Tonight he thinks it will become clear that this building is safe and that they’ve analyzed the situation in terms of safety. He did want to make clear that he thinks in large measure this is about aesthetics. This is an argument being made where someone wants to control everything they can see on all 4 sides of their property. That in his opinion, is not how the law works. This is their position and he wouldn’t take any more time on this matter as the public wanted to speak, but he did want to introduce James Reynolds, Architect who wanted to make a presentation.

Mr. Reynolds noted that he had a practice in Stone Ridge, NY. He noted that there was an interesting area of overlap in NY State between Municipal Zoning Law, NYS Building Code and between the NYS Ag & Market Law. In some cases, some narrow cases, the language of the law is conflicting and this is an interesting case because it covers some new ground and in his experience it hasn’t fully been addressed and he thinks that part of this review process is bringing the relative areas of consideration and trying to develop a protocol for precedence in term of what takes a primary position. Is it Ag & Markets over a local Zoning Law? Does the Building Code come into it and at what point does the Building Code become a secondary issue with respect to Ag & Markets. He was here to speak tonight just in respect to the NYS Building Code issue. Mr. Moriello was much more qualified to speak to the Zoning issues, but with respect to the issues that have been raised in regards to the Building Code is what his letter is in regards to as follows:

Mr. Moriello noted that there is correspondence from Bob Somers of NYS Dept. of Ag & Markets as he really wanted to attend the meeting tonight, but was unable to attend do to an unexpected death in the family, but he did offer to answer any questions that the Board may have. He asked that his client Ms. Schoonmaker be able to make final comments after all other public comments are done.

Mr. Sweeney noted that he would like to provide a response in writing in regards to Mr. Reynold’s letter or any other documents submitted this evening as they haven’t had time to review them.

Chairperson Haugen De Puy stated that it would be noted in the record.

At 7:30PM Chairperson Haugen De Puy opened the hearing to the public.

First to speak was Eve Kunn of High Falls. Ms. Kunn noted that last summer she started to take lessons from Ms. Schoonmaker who is a very loving and joyful teacher. She is wonderful with the kids that she teaches. They get off of the bus and are in a wonderful environment and this is a huge service to the Town that she provides. She started looking into Zoning and came across the whole tenor of the NYS Constitution which is the protection of Ag Districts and uses. In 2011 Ag & Markets amended their laws to include commercial operations. NYS puts out review of local laws and these laws apply directly to Flying Change Farms. The guidelines submitted by Mr. Rominger’s attorneys leave out stuff that don’t help their case. Ag & Markets gives a model streamlined site plan review when it comes to applications like this and that should have taken place before this Building Permit issue that is now going on. Ms. Schoonmaker did everything she was supposed to. The same guidelines talk about aesthetics, which have no legal binding in an Ag District. An Ag use shouldn’t bare the cost for screening. Also, the ZBA may not have jurisdiction over the Building Code. She found another document on the NYS DOS website put out by James A. Coon in 2005 showing 22 decisions involving Building Codes not being able to be appealed to the ZBA. They are appealed to the DOS. She asked that the Board please allow Mr. Williams and Ms. Schoonmaker to continue to make a living.

Richard Smith was recognized to speak. He noted that this room was filled with local people. Ms. Schoonmaker was local and her family has done a lot for this community. The only 2 people against her barn- one lives in Arizona—they come up part time, they’ve been great neighbors, and they are great people. The other one lives in Westchester and he could go back. The reason he’s against her is because it doesn’t benefit him. Maybe he’s not reading through the websites and everything, but people need to look at where we came from before we get to where we are going. He was for Ms. Schoonmaker 100%.

John Kor from High Falls was also recognized to speak. He noted that people use various Town Boards to get their agendas completed. The point of the matter is that this is about a person’s occupation that is providing a very good service to the community. Any time kids aren’t using electronics it is very good. As for the barn, these types of structures have become quite popular because they are cost effective. As far as the fire safety- it’s been pointed out by an expert that it’s safe.

Nick Lapp from 270 Airport Road was recognized to speak. He noted that he lives as close to Mr. Rominger as to Ms. Schoonmaker. One day he went by and saw Ms. Schoonmaker’s new building and he kept on going. 12 years ago he put in a 2 car garage and he had to get a variance from Domino Farms to put it closer to the line than allowed. Mr. Rominger decided it wasn’t a good idea for him to build a garage on his own property. He’s too concerned with what’s going on around him.

Shep Watson was next to speak from the NYS Horse Council, and is the regional Vice President of the area. The structure in question is used all over the area and they are safe and approved to use. Ag Law, which was mentioned earlier. The reason that the Ag District Law was put into place was to protect farmers from people who move into the area and don’t like farming operations. So, if you live in an Ag District, then you have a right to farm. She lives in an Ag District in Orange County and has her Agriculture enterprise there, but the other thing there is with having neighbors- and she is also a real estate agent- it is the responsibility of the agent to let someone know that as a potential buyer, that if they are buying near an Ag District property and also they should explain to these people what goes on in an Ag District. One of her responsibilities as a real estate agent is to answer questions that come up regarding agriculture. She is a very firm believer in the Ag Law and how it was put together and how it protects farmers. Horses are agriculture animals. Having a riding facility with an indoor arena is all perfectly acceptable under the Ag Laws and people who buy the property in an Ag District need to understand that these farmers have the right to farm.

Matt Dennin was next to speak. Mr. Dennin noted that he’s lived here his whole life and has known Ms. Schoonmaker forever. She is giving little kids horseback riding lessons. Like Mr. Lapp said, he drove by and boom, there was this structure up one day. He said, good for her. Half of the barns around here are all falling down and dilapidated. Worry about that, don’t worry about her. It don’t look bad, he can see it from his house just like Mr. Lapp and Mr. Rominger. It’s her property, let her do what she wants to do with it. Just like people that buy houses by the race track. People buy property next to farmers. So be it, if they have to spread manure on a Sunday morning, that’s what they are going to do.

Bruce Davenport was next to speak. Mr. Davenport noted that he lives in an old stone house and appreciates history and the value of it. What’s getting left behind here is that the Schoonmakers have been here and contributing to their economy for a long time. His house is over 300 years old and they were here before his house was built. They’ve been contributing to the economy before his house was built. No one controls how they pack apples. Ms. Schoonmaker is doing what she needs to do to stay in business and contribute to the economy. The historical preservation of a house is little compared to the Ag economy that used to be in this area.

Elizabeth Higgins was next to speak. She noted that she is the Ag Coordinator for Cornell Cooperative Extension in Kingston. People have already pointed out that the property is in an Ag District and one of the purposes of that is to keep the area agriculturally viable and so that farmers can do good agricultural practices and stay in business. She thinks it is very easy to underestimate the impact that the equine industry has in Ulster County because people don’t tend to think of horses as farming. The equine industry in Ulster County is the 4^th highest by sales in Ulster County. Twice as high as dairy. Vegetables are 7 million and equine is 3.8 million dollar industry in Ulster County. When you look at equine industry and when you look at all the things that are eligible, the difference between profitability and nonprofit ability in the equine industry, is riding lessons. Boarding doesn’t pay the bills, it’s the riding lessons that really help keep those businesses going. When you have an industry that has what they have to do to stay in business this definitely falls under Ag.

Mara Linstrom from Upper Cherrytown Road noted that she is one of the people who just arrived here and the reason she lives in NY for many years and the reason people come here is for agriculture. If she looks at Town, she should hire a very expensive lawyer and go around and to find people breaking every single code. This is why people come to this area—for agriculture. Two things here- economics and economics come from tourism, they come from farming, and they come from the equine industry. This is what makes this place absolutely beautiful and special. To kill true economic commerce? She can go up and down Route 209 right now and see failed businesses right and left. We want things to succeed here. If something is succeeding, they why on earth would we try and bring it down?

Jerry Fornino, Town resident was next to speak. He noted that he was sad that he had to come here because he sat for almost 5 years and many of those individuals who sat on the original zoning task force that was back in ’09, went through with some issues. They did this to in fact try and streamline things and try and help. He’s been here for 40 years. It seems that what they’ve tried to do, they didn’t accomplish. They should be here trying to help folks like Ms. Schoonmaker. His daughter has ridden at her stable. This came up with being an in indoor arena without a sprinkler system and so forth and concerned about kids. He is not a horse person. The one time he got on a horse in Staten Island when it was all open land. The horse saw an opening and took off with him on his back across a highway and luckily that was back in the 60’s. After that he didn’t like horses. The great thing about Ms. Schoonmaker having an enclosed area is one day if his daughter talks him into getting on a horse, he would get on a horse in that building that he wouldn’t get on one in the open field. He also feels safer with his daughter inside of a building because of that experience. If we are here and he spent 3 years saying that they were going to promote these types of things. Having said that, he still doesn’t know why he was here, but he was absolutely in support of Ms. Schoonmaker.

Jack Schoonmaker, from Accord was next to speak. He noted that Ms. Schoonmaker was his daughter. She and some of her friends started in the horse business when they were quite young. He used to take her to horse shows here and there. It was a challenge. The horse solved a problem for his daughter, keeping her calm and it gave her something to take care of and he would always remember those days. She graduated from Rondout Valley and got her Casanova Equine Degree and in her senior year she got a call from Mohonk and offered her a job to manage their horse stables and she accepted and managed those stables for 5 years. It’s been her life. He can’t help but think of all of the students, it’s got to be close to 500 at this point for 15 years that have had an opportunity to get off the bus and get lessons. People can learn from animals. It’s a great connection. When she was married at Mohonk the minister says, “who gives this woman away?” and he said, “her mother, myself, and her horse.”

Alan Wolf, an Accord Resident was next to speak. His daughter has ridden with Ms. Schoonmaker for about 7 years. He thinks the issue here is that if she had built a ½ million dollar beautiful wood barn, they wouldn’t be in this meeting right now. The fact of the matter is that technology changes and things are better. Maybe some people don’t like how that looks. Maybe he doesn’t either. All he knows is that it won’t burn to the ground. It’s safe for his daughter to be in. He lives in a stone house that is over 300 years old and he appreciates the look of things, but also knows that a business needs to be cost effective and building a ½ million dollar beautiful wood barn, isn’t as safe and isn’t as cost effective. Their business is important to this community as all business here are. That is what they should be looking at. He feels safer with his daughter in this structure than a wooden barn

Mr. Travers, the President of the Rondout Valley Business Association was next to speak. We needs businesses in the Rondout Valley. It isn’t exactly a booming economy here. Ms. Schoonmaker is in an Ag District. Ag Laws exist and she has met all that she needs to do, she should be allowed to run her business. She shouldn’t be taking the barn down because of the color of the building. It is a completely acceptable use and he urges the Board to let her move forward.

Wally Nichols lived in the Town of Wawarsing and runs a commercial horse boarding business. He considers Ms. Schoonmaker to be the den mother of horse business in the area. He believes they are at the intersection of agriculture and aesthetics, which a point has been made that this Board has an important duty to set precedence in this case.

William Brandtmeyer lives on Airport Road. He noted that he is a teacher and he teaches kids with sensory issues and some also have motor issues. The benefits that he has seen from the kids being with Ms. Schoonmaker are astounding. Kids that normally don’t’ interact with other kids has a commonality and can bond with other kids through this. Economy is important and future of the kids in the community is important. Ms. Schoonmaker is more than a riding instructor, she really helps kids on all levels.

Pam Gropezie was next to speak. She is a parent who has spent years with Ms. Schoonmaker and has watched kids grow with self-confidence from working with Ms. Schoonmaker. She teaches kids through their teen years and they learn confidence and a good work ethic, love. That is more important than a building. Her daughter did a Wise project through Rondout and she picked Ms. Schoonmaker as her role model and Ms. Schoonmaker went to her school and taught students about what they do on her farm.

Brian Hornbeck, Town of Rochester Resident, noted that he just purchased property in the Town and he didn’t know if that district was agricultural and he didn’t care, but he was telling the Board right now, it’s folks like that little slime ball and he sits in between two hot shots from Albany and this is what he does.

Chairperson Haugen De Puy admonished comments of that nature.

Joanna Garland, friends with Ms. Schoonmaker was next to speak. She noted that Ms. Schoonmaker was a wonderful person and loves horses and give her students wonderful experiences. She has been working on this building since February. How much longer were they going to let this go on? Please make a decision so they can move on.

John Fitzpatrick whose daughters get lessons from Ms. Schoonmaker said, ditto to what everyone else has said and he couldn’t really add more. There was a shrinking rural economy and this was a positive thing for that.

Chrissy Rider was next to speak. She noted that she is an anal mom when it comes to safety and her daughter goes to Ms. Schoonmaker. She has no problem with anything to do with Ms. Schoonmaker, she teaches independence. They trailer their horse there and don’t even use Ms. Schoonmaker’s horse. She can’t trailer a horse all the way to Pine Bush. She has been all around horses her whole life and she can’t give her daughter the safety that that enclosure offers with lessons. That’s why she goes to Ms. Schoonmakers. The safety issue is garbage.

Lorissa Kinder was next to speak. She moved here in 2001 raising her daughter. They quickly heard about Ms. Schoonmaker and got her on the waiting list. She got in when she was 4 years old and in her opinion, her daughter is who she is today because of Ms. Schoonmaker and she knows of many others that fall into that category.

Chris Kelder of Accord was next to speak. Mr. Kelder noted that the Town’s Master Plan promotes agriculture. The Right to Farm Law is here and he hopes the ZBA approves the business. We need to look to the future because can’t keep going through this process when people want to service their community. Otherwise people will go other places and we are really into competition with people in different parts of the State and he hopes the ZBA makes the right choice.

Kristen Lamastro is one of the students who took riding lessons from Ms. Schoonmaker. She bought her first horse from her. She goes to SUNY New Paltz for business and works at Flying Change Farm. They need to use that building to help her students.

Donna Putnam, President of the Ulster County Horse Council was next to speak. She noted that Ms. Schoonmaker in the planning stages had done everything that the Town had required. She didn’t understand why this was an issue.

John Novi was next to speak. He noted that any decision that needed to be made needed to be made quickly so Ms. Schoonmaker could run her business.

Carol Meyer from the Town of Marbletown agreed with many people that spoke tonight. From a practical side, it was going to rain tomorrow and Saturday, which means Ms. Schoonmaker can’t work without that building. This has a real day to day impact on her business.

Charles Nobel of Accord and was a member of the Rondout Valley Growers Association noted that most folks involved with agriculture really struggle. Ms. Schoonmaker will prevail, but even when she wins she will be losing because the price that this process of going through the Town has cost her. He asks that this doesn’t happen again.

Patrick Williams, co-owner of Flying Change Farms wanted to let everyone know that one of the primary reasons for this building is to keep Ms. Schoonmaker out of the sun because she had cancer and the sun isn’t good for her.

Maria Rydelbach, Town resident spoke. She noted that she is on the Rondout Valley Grower’s Board. Ms. Schoonmaker is wonderful to the community. She doesn’t know the guy complaining, but if some simple solution can be reached- like planting trees, maybe there’s a way to let Ms. Schoonmaker continue to operate. Why spend the money on lawyers and fighting over who is right and who is wrong?

Ms. Schoonmaker was next to speak. She thanked all of her neighbors around her for making her feel loved. She noted that around here they don’t hire lawyers when they have a problem with their neighbors. Around here she just calls up Matt (Dennin) and says, get your damn cows out of my barn.

Mr. Davis, CEO for the Town of Rochester was next to speak. He noted that he has a job to do, and he did the way he saw fit. He gave a C/O to that building for Ms. Schoonmaker so she could continue to do what she needed, but on a personal level, not to let anyone from the outside in until this debacle got straightened out. He personally can’t wait to sign it and give her a full C/O. They are doing the best they could with what they had.

Mrs. Christiana, attorney for the Town noted that if the Board wanted they could hear more and keep the public hearing open if they felt they needed to hear more. If the Board wanted to keep the hearing open for written comment they could do that with two weeks and they would have until July to make a decision.

Mr. Mallery questioned trying to mediate between the two parties.

Mrs. Christiana noted that they had an appeal in front of them, not a variance. It’s different and the procedure can’t be negotiated. They may be able to ask the applicants to discuss that.

The Board discussed their options further. Chairperson Haugen De Puy asked the Board if they wanted to hold the hearing open for another two weeks to accept written comment as Mr. Sweeney had asked for that opportunity at the beginning of the hearing.

The public was not happen and told the Chairperson that she was nuts.

Chairperson Haugen De Puy noted that maybe she was nuts. She grew up here to, so she breathes the same air, but it’s a decision that she has to allow time for by law. At this time she was asking the Board if they would like to continue the hearing for two weeks for written comment only and at the end of those two weeks they will close the public hearing and the time will start for them to make their decision. They have 62 days to make the decision once the public is closed.

The public was not happy again.

Chairperson Haugen De Puy stated that this Board worked very hard to make their decisions and they had never taken decisions to the last day. She has sat on this Board for 20 years and this Board has never taken till the end. Don’t shoot them in the head yet, give the Board a chance.

The Board discussed their option.

Chairperson Haugen De Puy questioned how much time Mr. Sweeney thought he would need to produce a response? Could he have something in by May 23^rd?

Mr. Moriello thought it was prudent to keep the hearing open till the 23^rd to allow Mr. Sweeney to respond to Mr. Reynolds written comments.

Chairperson Haugen De Puy made a motion: Since the Board has spoken with both sides and they are both agreeable to keep the Public Hearing open until Friday, May 23^rd at midnight for written comment only. Then the Public Hearing will be closed and the Board will have 62 days to make a decision. Seconded by Mr. Fischer.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent

At this time there was a 5 minute recess.

JOINT PUBLIC HEARING

Applicant #1: Robert Rominger,

Applicant #2: Diane Schoonmaker and Patrick Williams: Appeal of CEO Determination requiring Site Plan Approval as per Zoning Permit #15 of 2014 for indoor riding ring for riding lessons and educational spot for year round teaching for Diane Schoonmaker located at 235 Airport Road, Accord

Mr. Moriello noted that there have been substantial submittals by both sides. The Building Permit was issued, a C/O was issued. Ms. Schoonmaker relied on that to her detriment and went forward with the project. He has read the Zoning Laws and this is clearly under the Rochester Zoning Laws an agricultural barn and the CEO made the right decision to issue the permit. By definition this situation and agricultural use is permitted by right in this zone. It does not require Planning Board review, it does not require SEQRA and is specifically a Type 2 Action, which means it is exempt from environmental review and the reason for that is that the legislature wisely recognized years ago that these kinds of problems could happen and in his opinion they guarded against that be enacting protection for agricultural structures. They also have the Ag & Markets Law, which many people brought up tonight and the Right to Farm Law in conjunction with the Zoning Laws. They’ve also made several arguments in their papers as to where this falls in the Zoning Laws and prior precedence. There has been prior precedence in this Town to allow this type of use. There is also a decision that was reached and once something is decided, it is decided. A decision was made, his client relied on that decision and spent a ton of money in relying on it. He believes that although vested rights are not usually in municipal instances, this was clearly a case where his clients have proved vested rights for an agricultural use for the barn. From a land use and zoning stand point, these barns are put up all over the State of NY, not just in this Town. Where they are not normally put up is in places like Woodstock or New Paltz. It was incredibly heartening to see the amount of people that came out and supported agriculture and Ms. Scoonmaker and her family. They are institutions in this Town that goes without saying. He has a lawyer friend of his that says that farmers are royalty in Ulster County. It’s funny because they don’t dress royal and they don’t act royal, but when you see the turnout like tonight, most people won’t’ get to experience that type of love from their community and he thanked everyone for coming out.

Mr. Sweeney noted that there were substantial written submittals before the Board and he asked the Board to rely on those and take those in to account with eh public comment from tonight. The basic issue from their perspective was not anything against the riding, they believe it’s not simply an agricultural use, it was a commercial recreational use because it was an indoor riding facility. Under the Code of the Town of Rochester that therefore requires the submission of permits. There was a discussion before the Planning Board and when that application was made originally focusing on health and safety issues regarding access, fire safety for access. There were issues of concerned raised and the applicant was addressing them and then the application was withdrawn. However, their point is simply that- health and safety concerns on those issues. The Ag & Market Guidelines call for the opportunity for streamline review for farmers to get their needs taken care of quickly. It allows Towns the opportunities to look at these projects and make sure that they are meeting health and safety standards sufficiently for their Town residence. That is their position. There is a difference of opinion as to the type of use, it’s not an argument over whether it can be used that way, and it was a classification in the Zoning Law that requires a different treatment under the Zoning Law. They acknowledge the Ag & Markets Guidelines and limit the power of the Town’s in order to address issues that they might otherwise on another commercial operation. If there was a bakery going in that area there would be a whole other slew things that would apply. They acknowledge that it’s different and have done so as well in writing in their submissions and ask simply that it be looked at for what they believe that it is, an indoor riding academy with Birthday Parties and things like that. They think it is a great use. Those issues should be reviewed and looked at. As to the vested rights issue, they understand the reliance on the permit, but if it was issued in error, a good faith error by the Building Inspector when he mad that determination, it can’t be relied on if it isn’t validly issued. It doesn’t’ mean it was illegal or there was a nefarious intent or anyone was trying to do anything with malice. It simply means that an error was mad and therefore it shouldn’t have been relied upon. There is significant case law in NY that says even in that instance the ZBA retains significant authority in respect to what is going on with that operation. He respects the position that the applicant is taking is different and they have submitted that in writing and this is where they are in this instance.

Mr. Davis, CEO was asked if he wanted to comment. He did not.

At 8:45PM Chairperson Haugen De Puy questioned if there was any public input.

Joanne Garland from Accord noted that she spoke to a gentleman from Marbletown and he wondered if the applicant was allowed to run her business while the Board made their decision?

Chairperson Haugen De Puy noted that the Board did not have the power to do that.

Beth Anderson of Rock Hill Road in High Falls noted that if it was found to be a commercial enterprise, would the Town be found at fault? What type of compensation would the Town make to Ms. Schoonmaker for causing this if this scenario occurs.

Chairperson Haugen De Puy didn’t think at this time that there was anything in place for such an action. That would be something that would be addressed by the Town Board.

Ms. Anderson suggested that would be a priority that all of those things would be found out before they shut down one of the most beloved enterprises in the Town.

Mrs. Christiana, attorney for the Town noted that if they close this public hearing they would need to make their decision in June.

Mr. Fornal questioned Mr. Moriello regarding some documentation that was sent to Ag & Markets in order for a ruling?

Mr. Moriello responded that his client did.

Mr. Fornal questioned if that was something that was also submitted to the ZBA or was that something different?

Mr. Moriello noted that he believed that the Board had a letter to the effect that a request has been made for a sound agricultural practice determination letter.

Mr. Fornal questioned if the opposition submitted anything?

Mrs. Christiana believed that this was something that Ms. Schoonmaker did on her own, outside of these proceedings.

Mr. Fornal noted that they’ve heard it characterized what the use is and they’ve heard it in some of their submissions what it isn’t. He’d like to know what the intended use is going to be.

Ms. Schoonmaker noted that the intended use is for riding in inclement weather and to be able to use on a daily basis. There are stalls in there, hay, and some storage of riding things.

Mr. Fornal questioned if that arena would be used for horses other than those owned by Flying Change Farm or boarded there?

Ms. Schoonmaker answered that they have a few people that truck horses in- one or two.

Mr. Fornal questioned if they would have recitals? How many of those do they hold a year?

Ms. Schoonmaker answered that they had 2 horse shows a year and those would be outdoor only.

Mr. Fornal questioned how many vehicles would be parked when something like that happened?

Ms. Schoonmaker noted that it’s rotational between age groups, so maybe 25 at a time.

Mr. Fornal questioned if there was any plans for special events for commercial gain with that building?

Ms. Schoonmaker answered, no.

Mr. Dunn motioned to close the public hearing, seconded by Mr. Fischer. No discussion.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent

Chairperson Haugen De Puy noted that the Board has 62 days by law to make a decision. She then called Mr. Sweeney and Mr. Moriello forward.

Mrs. Christiana noted that while the Board was considering all of the information received and while they were waiting for the next meeting and if the two parties wanted to talk to their clients and find a way to come to a meeting of the minds, the ZBA would not be insulted. If they couldn’t, that would be fine, and the ZBA would move forward. She wasn’t sure if there was any room for anything like this or not, she just wanted to suggest it.

Mr. Sweeney noted that there have been efforts and they have been unsuccessful.

Mr. Moriello noted that they would try.

ACTION ON MINUTES

Mr. Fornal motioned to accept the minutes from April 16, 2014. Seconded by Mr. Fischer. No discussion.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Abstain

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 4 ayes, 0 nays, 1 abstain, 0 absent

Mr. Fischer motioned to accept the minutes from March 2014. Seconded by Chairperson Haugen De Puy. No discussion.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Abstain

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 4 ayes, 0 nays, 1 abstain, 0 absent

OTHER MATTERS

Mrs. Christiana noted that regarding Mr. Fornal’s points regarding Mr. Marano’s Appeal of the CEO Determination Decision, she would like to schedule a training session, maybe in the fall once things calm down as far as applications.

The Board agreed.

ADJOURNMENT

Mr. Fischer motioned to adjourn the meeting. Seconded by Dunn . All members present in favor.

Since there was no further business, at 8:50PM Chairperson Haugen De Puy adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary

DRAFT