(The following was created by using OCR on copies of pages from the official record at the Town Hall. It includes page 1 and 2-22. I don't know the full length of the document. This copy covers Doug Staley's testimony about his decision to allow Flying J to use the 100 buffer strip as part of their parking lot. The ZBA overturned Doug's ruling and then won the lawsuit brought for Flying J by Rick Shafer.)

PAGE 1

STATE OF NEW YORK COUNTY OF CORTLAND

ZONING BOARD OF APPEALS TOWN OF PREBLE

In the Matter of

FLYING J, INC.,

Interpretation of Section 535

of the Town of Preble Zoning Ordinance

BOARD MEETING in the above matter conducted at the Preble Town Hall, Preble, New York on Wednesday, September 22, 1999 at 7:30 p.m.

PRESENT:

Chairman DANIEL OISHEA

ZBA Member CARL GRILLO

ZBA Member CHARLES STURGEN

ZBA Member ROBERT LIEBER

ZBA Member CATHY KINNE

ZBA Member BARBARA FRIER

ZBA Attorney FRANCIS J. CASULLO, ESQ. from Pomeroy Armstrong Baranello & Casullo LLP

WITNESS: DOUG STALEY, Code Enforcement Officer

Attorney in Audience', Richard Shaffer, Esq., plus other citizens

Action Reporting Service, LLC

Dey's Centennial Plaza. Suite 100

401 South Salina Street, Syracuse NY 13202

315-428-9311 800-515-DEPO

PAGE 3

Chairman

CHAIRMAN O'SHEA: Official clock says it's 7:30 so we'll call the meeting to order and I'll discuss or I'll tell you what the reason for having the meeting is. This is the notice that appeared in-the paper.

Please take notice that a meeting will be held by the Board of Zoning Appeals of the Town of Preble on - this is not the right one. It says August 23rd. Okay, we'll have a meeting tonight to discuss the interpretation of -

MR. CASULLO: It's in the paper.

CHAIRMAN OISHEA: -- Section 535 of the zoning law by Mr. Staley concerning buffer requirements. And we had a public hearing a week ago and we're going to discuss it and see if we can't come up with a reasoning for the decision. But before we do that, Mr. Staley has requested to address the board. So can you do that, Doug?

MR. STALEY: Sure, love to. I think I met everybody on the board except this young lady over here.

MS. KINNE: Cathy Kinne.

MR. STALEY: I'll start out with, get

PAGE 4

Staley

a little history because I think we need to have a little history. We had the zoning ordinance which was done in 1971, we had about a book that was 30 pages. And when we grew to this book in here, which is the zoning book for the Town of Preble, I think we tried to compile with something everything that we had that was in general and tried to be as specific as we could. But there is no room for everything to be ingested.

We went from 31 pages to over 370. So I think you try to find the scope of whatever you are and you know, your answer is in here. I was asked by the attorney Fran Casullo to make a determination with regards to the buffer strip. I did sit down with the Flying J people in regards to this. And as you will note in my books or pages that I had done, excuse me I have to get my glasses on, tough to get a little old have to read with glasses, trying to work in here. And basically I'll just kind of go through it.

"In reference to my interpretation of Subsection E 535 please see attached per page

PAGE 5

Staley

14 of Town of Preble zoning ordinance definition of structure. So anything constructed or erected with a fixed location or attached to something having a fixed location on the ground." That is your determination. That's your definition in your zoning.

continues on to Section 535 A says, "no commercial structure shall be permitted within one hundred feet of nearest lot line. Section 535 E says 100 foot buff strip" must offer no description - - "but offers no description in Section 210 definitions." I can't mix apples and oranges and try to come up with whatever saying. The only thing I can deal with is whatever you have in the book.

You can't refer to books that Fran is going over or whatever else because the only issues you can deal with are whatever you have in here. If it's not in here you can't make it up, and I'm not allowed to make it up either. The job of zoning officer is basically a job of black and white. My interpretation is either in the book, I can make a determination, if it isn't then I send it to your board. And that's

PAGE 6

Staley

Basically what I have done.

This is kind of out of the ordinary for me to even do an interpretation on this because it's something we wouldn't necessarily do. But to continue on from here, there is a move or a description here of a parking lot.

"A parking lot on Section 210 definitions offers no further description." Doesn't say what it is. There is no structure. "Therefore my interpretation would be that a parking lot is not a structure.19 Certainly if you look in the building code, if you're looking for a structure it's either going to be classified as non- habitable or habitable space.

Certainly you're not going to have it live within a parking lot. Nor are you going to have non-habitable space, which is defined as a non-habitable space is like a cellar. It's neither one of those, it's a flat area. So I offer that in there as what we have in there.

So as my interpretation would be that parking lot is not a structure and 100 foot buffer they have provided you with is in compliance with the plans.

PAGE 7

Staley

"Section 715 F would also be in compliance with a 10 foot width, page 64 in side and rear property lines."

I spent numerous hours and I probably couldn't even tell you how many hours that I spent with the Flying J people, Resource Engineering in regards to this. We went to great lengths to try and make sure that we followed to the letter the intent what you have in the book. If you have an interpretation that's different than that, there is two people that were right here, Danny and Barb that were on here. If you wanted to do that then you should have made it when we made the book. I can't pull it out of there and neither can you.

So that's basically what I have to say in regards to that. If there is any questions I would be more than happy to answer them. But it's pretty straight forward. I didn't pull too many punches, all I can deal with is with the issues, that's basically what I've dealt with.

MR. GRILLO: I just have a question.

PAGE 8

Staley Q&A

Is our board, I just want to understand, isn't our board set up to make determinations where maybe it isn't all cut and dry in the book? Isn't that what we do?

MR. STALEY: That's part of what you do, yes, sir. If you were to look at the book, and my description would be that if somebody come in and said that they want to do, create something that had apples in it and they only had oranges in the book, I certainly would have to go back to you for an interpretation, because the only thing I'm allowed to is whatever the process that's in here.

That's why I said It's out of ordinary context for me to even make an interpretation. But we went down and sat down through it, and when we went through the plans for the Flying J proposal with somebody right there and talked about it at great length. So I don't know what else I can tell you, But certainly that's your prerogative and that's why you're here.

Like I say, we basically deal with black and white issues, it either is or isn't. if it isn't that' s why we have you here. You have

PAGE 9

Staley Q&A

probably met more this year than numerous years, but it's nice to have that paycheck, right? Got to have a little humor here.

CHAIRMAN OISHEA: Anybody else got any questions for Doug?

(Unidentified male raised his hand).

CHAIRMAN OISHEA: No, not you, I'm talking about the board members.

MR. CASULLO: Just maybe so we make the ground rules clear, tonight there is going to be no questions from the public. This will just be the board amongst themselves and of course they can ask me questions. But we won't be entertaining any questions from the public.

Doug, of course, is being allowed to speak because Doug is the one that's made the interpretation. Other than that there will be no one speaking for or against this interpretation tonight.

MR. STURGEN: I thought we had a lot of questions to ask.

MR. STALEY: Charlie, got anything for me?

MR. STURGEN: No.

PAGE 10

Staley Q&A

MS. FRIER: What about the second sentence of E?

MR. STALEY: Which E are we talking about?

MS. FRIER: That you referred to, 535 you only explained the first sentence.

MR. STALEY: On page what, 28?

MR. CASULLO: 28.

MR. STALEY: Basically you're looking for, the only thing I dealt with was basically the first one, which said no commercial structure permitted within 100 feet of the nearest lot line or agricultural district.

QUESTIONS BY BARBARA FRIER:

Q. (Frier) So you didn't use the second half of that?

A. (Staley) Commercial structure should be 100 feet from a non-industrial district. We don't have an industrial district there. There is not an industrial district there.

CHAIRMAN 'O'SHRA: Asking you about the second sentence of that paragraph E.

Q. (Frier) Second sentence in that paragraph.

PAGE 11

Staley Q&A

A. This 100 foot buffer perpetually maintained and employ visual screening and separation. Okay, between commercial and Non-commercial. Screening? Could be anything. Whatever your interpretation of screening is. My interpretation of screening is something you can see through. Screen.

BY CHAIRMAN OISHEA:

Q. Does the parking lot fit the definition of a screen?

A. You can see through it.

Q. (Frier) And separate?

Q. (O1Shea) Does it separate?

A. sure it does.

Q. (O'Shea) Separates the commercial activity from non-commercial activity?

A. You don't have that, all you have is residential to commercial. Residential and agricultural if you look at your map over here.

Q. (Frier) Wouldn't residential and agricultural be non-commercial?

A. No, doesn't say that specifically, does it?

PAGE 12

Staley Q&A

Q. (Lieber) What is non-commercial?

A. Could be residential, could be agricultural.

Q. So then it is.

A. Could be. You're offering an interpretation of it in there. Does it say specifically it is? No, it doesn't.

BY MS KINNE:

Q. (Kinne) You defined a structure, anything constructed or erected with a fixed location. Can you move that parking lot? Could you pick it up and move it?

A. Could you pick it up and move it?

Q. Yes, any easier than you could a building or anything else. I mean I realize it could be decided but if you're basing it on that definition you make it sound like you could pick it up and take it away any time you want.

A. What you're asking in there is to pick up a building, would be the same as what you're picking up a parking lot.

Q. But that's a structure.

A. Of everything that is down below the

PAGE 13

Staley Q&A

ground.

Q. Well, you were just basing it on the definition that it was constructed or erected with a fixed location. You said that right in your letter.

A. Yes, that's what it says in the zoning book.

Q. Would you say a parking lot is fixed?

A. Is a parking lot fixed?

Q. Yes.

A. It can be moved. Can it be an adjusted?

Q. A building can be knocked down too, aren't you reading into it a little more too?

A. No. All it's asking for, when you say structure, is from here to the wall of where there is a structure and 100 foot away. That's all it's dealing with. When you're dealing with a parking lot you'll have muriney (phonetic) down on the base of it, you'll have some 8 to 10 inches of bank run gravel, probably four inches of item four on the top and blacktop. Can you see over the top, can you see through it? Certainly you can. It's

PAGE 14

Staley Q&A

not a structure.

MS. KINNE: I was just saying that you have in there anything constructed or erected with a fixed location, and I would say a parking lot is fixed. BY MR. KNAPP:

Q. Plus a porch?

A. A porch would be a fixed structure. Could it be moved? Could it be expanded upon? Sure.

Q. A porch is the same as a driveway.

A. No, a porch is fixed to a structure. A porch is fixed to a structure or buried in the ground. Usually they will have four foot in the ground with posts. You don't usually put a porch setting on top of the ground, you put it in the ground so it doesn't go up and down with the frost. It's a fixed structure. Can it be moved? Yeah.

CHAIRMAN O'SHEA: Does anybody else have any questions for Doug?

BY MR. GRILLO:

Q. Doug, when you talk about a strip, I think in terms of a strip being an area, I mean

PAGE 15

Staley Q&A

you know, a piece of paper, I think of the strip as being something that goes around something, the perimeter of something as opposed to if a building was over in one corner of a piece of property or something and you had to have a hundred foot away. I think in terms of a strip being the perimeter of a property. Is that fair to say? Is that what you're talking about?

A. Basically when we look at the zoning issues if you were to take between the sections and you have residential and non-residential, and of course you go in there, would you make a buffer strip completely around the thing? No, it would be whatever the zoning on the one side to the other.

So if you had residential and agricultural and you had zoning then that would be straight down through wherever that zoning line is. You have an imaginary boundary on yours because of the fact you have 81 right-of-way. That's conceivable, a buffer strip all the way around it on the other side.

The only one you don't have it on is the

PAGE 16

Staley Q&A

one on from Route 81 to 281. Because there is a buffer strip there. It surrounds the whole parcel of property. You have the whole right-of-way of Route 81 and Route 281. The only one that you don't have a strip on is conceivably between the residential and agricultural and the commercial zone. And that's what we've determined, that's where we were on the basis when we were dealing with it for the zoning.

Carl, I comment also too in reference, retrospect to what we're talking about, when we started dealing with this I said, make sure you make it specific. If you make it general it's offered to a lot of interpretations. Certainly we have a lot of interpretations in this room. I'm sure Rick has one Amanda, Resource Engineering

It's all prone to making that, unless you make it concise and to the point each one of us will have a different interpretation. But you can't deal with the issues that you have in here if you're offering completely around it you already have it except for that area

PAGE 17

Staley Q&A

between the residential and agricultural and the commercial area, it's already there.

Q. Don't you need it there also though?

A. Why would you do it do you believe?

Q. I'm not talking about 81 side, I'm talking about the west, the west boundary, the south and west. Wouldn't there have to be a hundred foot from the property line?

A. Does it say what it has to be a buffer? Just says there can't be commercial structures within a hundred feet. Doesn't say it has to be -- doesn't say it has to be vegetation, doesn't say it has to be asphalt. There is nothing in there that leads either way. It doesn't say it in here. You can't make sand out of mud, it's not there.

You asked me for my interpretation I mean that's all I can give you. You have to realize that, I'm sure a lot of you do, I deal with probably thirty communities and we deal with a lot of different zoning issues, so this isn't - I'm not new at this game, this is not my first time around the ball park. I'm just giving you my broad opinion.

PAGE 18

Staley Q&A

If it's dealing with this, and you know I would love to deal with some of these books but you can't. (pointing to a legal book).

MR. CASULLO: No you wouldn't. I don't want to deal with them.

MR. STALEY: Because this is the only one I can deal with. (referring to zoning book) BY MR. GRILLO, Continued:

Q. You have a 350 page book. Probably be 1,000 pages in it and maybe still not have all the answers.

A. I would be the first one to tell you and sit right here, does there need to be some updates right now that we can see? Sure we know there is a few things that need to be. There is some fine tuning, whatever you want to call it, of things, some little holes in there that got pasted by the wayside we didn't catch them. And does it need some fine tuning? Sure. But we've gone a long way from the 31 pages to 370. Probably wouldn't be sitting here tonight if we had the 31 pages.

CHAIRMAN OISHEA: Did you have a question, Barb?

PAGE 19

Staley Q&A

BY MS. FRIER:

Q. Yes, in the second sentence of the structure definition that you used to accompany your letter.

A. Page?

Q. It's attached to your letter, structure definition, I think it came out of page 14 the zoning book. The second sentence starts with "Among other things, structures include." But "among other things" could you tell me why, if you saw "mobile homes walls, fences, signs, billboards and poster panels," you didn't consider parking lots and guardrails to be "among other things" that would fall into that category?

A. I'm not sure that -- in my second section, Section 535 A, is that what you're* referring to?

Q. No, you referred to with your letter page 14, the definition of Structure.

A. Hang on a minute.

MS. KINNE: You put it in quotes there.

Q. (Frier) And the second sentence of

PAGE 20

Staley Q&A

that definition starts with "among other things."

.A. Yes buildings, mobile homes,' walls, fences. signs. billboards.

Q. "Among other things.19

A. Among other things, it does say that,

yes. Does it say parking lots? No.

BY MS. KINNE:

Q. But the sign is probably on a parking lot.

A. Don't make it up. you can't make it.

Q. They're not floating. some of it is common sense.

A. Well okay. I'm saying black and white. you've got to have it in black and white. If you don't have it in black and white you can't deal with it.

Q. They don't hover. they don't float.

A. Dealing with the issues.

MS. KINNE: I am dealing with the issues. BY MS. FRIER:

Q. So you didn't use the word "among other things," you used it strictly here

PAGE 21

Staley Q&A

building, mobile homes, you left among other things out of your interpretation?

A. Mm, hmm, yes, I did. Doesn't say anything about parking lots. Does it give you a definition of a parking lot? Got parking space. Parking space, doesn't say anything about parking lot. Space available for parking one motor vehicle. Exclusive of fastest way into driveway. Parking space. Area avers within appropriate means of vehicle access.

BY MR. GRILLO:

Q. Doug, the definition in the book, it would have to say parking lot structure?

A. Yes, you would have to define it.

Q. But it would have to say --

A. Absolutely.

Q. And that would satisfy you, if it. said structure?

A. If you're defining.

Q. If you're defining it as a structure?

A. There was no definition of parking lot. I think it would be hard, maybe tonight in your context here, but I would think that the number of judicial cases that I have sat

PAGE 22

Staley Q&A

into, to try and determine a parking lot is a structure - and I'm talking about Article 78s or whatever else I had to testify at.

Unless you can pull something out of somewhere else that I don't know of. Like I said, it has to be black and white in here. That's the only issue that we can deal with and the only thing I can deal with. I can't pull something up here just because I think differently. The only thing I can deal with is what you've got, and that was my interpretation, good, bad or indifferent.

MS. FRIER: That's the name of the game.

CHAIRMAN OISHEA: Anybody else got any questions for Doug? Well, thanks for coming and talking to us Doug.

MR. STALEY: Thanks very much for the opportunity, thank you.

MR. CASULLO: If you want I can give you just a little framework and if you have any questions feel free to jump in. But I think how you should go about deciding this, for some reasons I really don't want to get into now, I

~~~

(This ends the copy that was given to me. The rest of this is at the Town Hall if you would like to read it. FH)

HOME

Maintained by Frank Hogg ~ Problems or questions about this site contact the webmaster

Comments? Send feedback

US Mail: Frank Hogg ~ PO Box 573 ~ Tully, NY 13159