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Use your browsers BACK tab to return. (This is a copy of the appeal letter from Stan Kogut on the latest buffer zone issue.) August 7, 2000 Mr. Daniel O’Shea Chairman, Preble Zoning Board of Appeals Box 168 Preble, NY 13141
RE: APPEAL OF DECISION
OF CODE ENFORCEMENT OFFICER
RELATIVE TO FLYING J and THE BUFFER ZONE ISSUE Dear Mr. O’Shea, Please treat this letter as my appeal to the Town of Preble Zoning Board of Appeals (hereinafter ZBA) of the June 23, 2000 written decision of the Town of Preble Code Enforcement Officer Douglas Staley relative to the 100 foot "buffer zone", as mandate by Town of Preble Zoning Ordinance section 535 [E] and Honorable Judge Rumsey’s Decision and Judgment, Index No. 35525, RJI No. 99-0396-M. A copy of this June 23, 2000 D. Staley decision is attached hereto. This appeal of the June 23, 2000 buffer zone decision by Mr. Staley is being filed pursuant to section 823 [A] of the Preble Ordinance because I feel Mr. Staley’s interpretation of section 535 [E] is again not correct. Mr. Staley’s apparent approval of the Utah Flying J’s use of the waste treatment structure’s "discharge pipes" inside the "buffer zone" within the meaning of the Town’s Zoning Ordinance, as set forth in his letter to Francis J. Casullo, dated 6/23/00, is wrong. Wrong as a matter of common sense, and wrong as per the Honorable Phillip R. Rumsey’s Decision and Judgment, Index No. 35525, RJI No. 99-0396-M for at least four independent reasons. First, Mr. Staley states in his letter, 6/23/2000 that " there is no legal definition description of a buffer strip in Town of Preble Zoning book. " This statement from Mr. Staley ignores all of the descriptions outlined in Preble’s Zoning Laws, Section 535 paragraphs A., B., C., D., and E. Paragraph E of Section 535 uses the description "hundred (100) foot buffer strip" to reinforce the legal definition description of what is clearly outlined in Section 535 to separate (buffer) commercial activity from non-commercial uses. If Mr. Staley does not understand the definition of buffer strip from Town of Preble Zoning Ordinance Law Book than the Honorable Judge Rumsey further clarifies the description in his Decision and Judgment, Index No. 35525, RJI No. 99-0396-M. Second, there is a legal authority supportive of the common sense notion that discharge pipes that are connected to a waste treatment structure is the furthest description from a "buffer zone". I refer you to the Town of Preble Zoning Ordinance Section 535, paragraph that clearly describes " Commercial structures shall be located so as to be a minimum of one hundred (100) feet from any non-industrial district. This one hundred (100) foot buffer strip shall be perpetually maintained so as to provide visual screening and separation between commercial and non-commercial uses." By definition of Town of Preble Zoning Ordinance anything attached to a structure is part of that structure. The Waste Treatment structure is attached to the Discharge Pipes that Utah Flying J is trying to hide inside the buffer zone. This is against Preble Zoning Law! Furthermore, authoritative treatise of Prof. Anderson, New York Zoning Law & Practice, section 17.04; also Atlantic Beach vs. Gavalas, 51 N.Y. 2nd 322 (1993); and Ginsberg & Weinberg, Environmental Law and Regulation in New York, section 4.2. This is especially so, when the ordinance is read in it’s entirety. Particular, the proposed use must protect the open and natural character of the land (section 102[2]), be consistent with the comprehensive statement of the goals and the objectives set forth in the "economic and social needs of the community" (section 102[3]):&9;&9;
To call Waste treatment discharge pipes a component of a "buffer zone", in this context, is to make a mockery of the entire Preble Zoning Ordinance and the Honorable Judge Rumsey’s decision. Third, Discharge Pipes of a Waste Treatment Facility is 100% commercial activity. Preble Zoning Ordinance strictly prohibits commercial activity in the 100 foot buffer strip that surrounds any commercial zone as does the Honorable Judge Rumseys Decision and Judgment, Index No. 35525, RJI No. 99-0396-M, where he clearly states: " The purpose of the buffer is to provide a separate one hundred (100) foot area where no commercial activity can take place." Fourth, even if one were to ignore the first three points stated, and even if one were to employ Mr. Staley’s own lack of definitions of "structure" and "buffer", the project is not in compliance. For example, there is commercial activity proposed in the buffer strip (i.e. discharge, sewerage pipes connected to the Utah Flying J Travel Plaza.) Further the site plan does not show the actual location of the sewerage treatment facility. It appears that the sewerage discharge from the processing plant is to be directed to a distribution box located at a close proximity to State Highway Route 281 directly in front of my home, then distributed through a series of septic tanks - 5 - 5000 gallon and 10 - 1000 a total of a potential 250,000 gallons of sewerage water stored and eventually distributed into a leach field; which incidentally on a wet weather year such as we experienced this year has already been water saturated much of the time. The relentless discharge of 21,000 gallons of sewerage water on a daily basis would fill the system to capacity in a very short period of time; this means that the system REQUIRES the atmosphere and the ground to evaporate and absorb 21,000 gallons per day of water on a daily basis to operate properly. This raises the question? What happens during a heavy rain or snow when there is no evaporation? Than the definition of absorption in this case is a steady flow of sewerage water 21,000 gallons of it directly into the aquifer daily. The potential of an overflow such as occurred in Winchester. VA (attached Internet Article) is very high; such an overflow would surely flow in the direction of my home rendering my home virtually valueless and would cause an unimaginable hardship to my family and myself. Application of section 535 [B] and section 535 [E] zoning ordinances to the facts elicits several obvious conclusions. The bulk of Utah Flying J’s proposed commercial process, the sale of fuel, would not be situated in an enclosed structure is not a minor nicety. It is consistent with both the declared purpose of the Town’s Commercial District and the rural nature of the environs. I think it is key that according to the ordinance, a buffer zone is to provide visual screening and a separation. Laws are not to be interpreted in such a manner that would make words in a series redundant, So, "separation", in the ordinance, must be interpreted to mean something in addition to that which is visible... separation should be construed to mean a separation of all of the noxious effects of commercial activity on commercially zoned property, from producing adverse effects on neighboring non commercially zoned property... This is especially dramatic in this case, where absorption pipes in the so-called buffer zone would be seasonably nonfunctional because of ambient water table conditions As a TAX-PAYING Resident in the Town of Preble I am entitled to the PROTECTION that Preble Town ordinance ARTICLE X Sect.1000 provides for all of it's residents. I hereby request that the 100 foot buffer zone, Zoning Ordinance of the Town of Preble, Dec. 1997 section 535 [E] be up-held around all structures as defined in (section 210, page 14.) i.e. around the entire Utah Flying J truck stop project. Sincerely,
Stanley Kogut 6937 Route 281 Preble Township Tully, NY 13159
cc:Charles Sturgeon, Adelbert Knapp, Barbara
Frier, Carl Grillo, Robert Lieber,
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