I made a wrong turn in Cortland and got to the courthouse a few minutes late. I don't go to Cortland often so I'm not that familiar with it. On my rush into the courthouse I stepped on some slick ice and did a banana fall onto the pavement. My butt, elbow and shoulder are sore as I write this. However, I made it into chambers before it started so I didn't miss anything. The first issue was letting act as a lawyer for the appellants. All agreed to that, and Rick Shafer presented his case. I've seen him work before and he didn't seem to have any enthusiasm for his argument. It sounded lame to me but I'm neither a lawyer or judge, so who knows.

The first issue was standing. Standing means that you are affected by the project. In Stan Kogut's case he lives across the street from the Flying J site and would obviously be affected by it. The further you get from the site the less standing you have. Shafer argued that because Stan's property is zoned commercial he did not have standing. I know, I don't see how that matters either, but that was Shafer's argument, not mine. Fran Casullo gave a much more convincing argument citing Judge Rumsey's previous granting of standing and the ZBA giving them standing in a 6 to 1 ruling. He then gave case law showing that Shafer's arguments were based on bad law that did not apply to a ZBA, but rather a civil court. I'm surprised that Shafer put so much into this standing issue but his other part of the case is so weak, that might explain it.

Then the issue went to the actual structure that is in the buffer zone. Shafer danced around this in an odd way. He went on and on about propane tanks and heated swimming pools and 100 room motels. His argument was that if a motel could put a propane tank in the buffer zone then Flying J should be able to put their massive waste treatment system in also. He also tried to maintain that all of it was underground and compared this massive structure to a gas line feeding Flying J through the buffer zone. This last concept is just goofy. If a gas line were to someday go down 281 past the Flying J then it would have to take a left turn into Paul Knapp's farm field before it could make another left turn to enter the Flying J through the buffer zone. Not even an idiot would propose such a thing. Indeed there is nothing, electrical, gas or sewage, provided by a municipality that would ever have to go through the buffer zone to get to the Flying J building, unless a lawyer designed it.

See the map below.

Fran Casullo dealt with this rather well. He pointed out that it is the law in Preble that nothing is allowed in the buffer zone. He also pointed out that Judge Rumsey found that to be the case last year where he stated that the buffer zone be 'free from any commercial activity'. He further enforced that with arguments, even though Shafer says that all of the sewer system is underground, there is nothing on the plan to support it. Indeed the system, by its very nature, would have vent pipes, manhole covers and other maintenance items that would be above ground. I wish someone had also mentioned that if/when a problem would occur with this sewage system, an overflow would naturally go into Knapp's Forever Green farmland and destroy it, which would further enforce the need for this buffer zone. Protecting prime farmland is one of the edicts of our zoning laws.

At the end, Shafer did an odd thing. He asked the judge to enforce the buffer zone laws of Preble on Paul Bunyon! Making some vague claim that Paul Bunyon somehow violates the law. I wonder what Shafer has against Paul Bunyon. They are a good company and have been in business in Preble for many years. They came here before the current buffer zone law was enacted and thus would be grand fathered in. I'm surprised that Shafer would be ignorant of this fact. I think he was just grasping at straws, trying anything he could as he saw the case slipping away from him.

Does all this mean that Shafer/Flying J will lose this case? It should, but if it doesn't, our legal team is prepared to go to the next level. It was pointed out to me that the judge might be under pressure to allow this. After all Cortland will get a hunk of dollars from this project. I don't believe it. I think that the judge has the integrity to find this case on its merits and will find for the ZBA and Preble.

Frank Hogg

1/19/2001

Shafer's bogus argument.

Shafer said that if the buffer zone were enforced, you would not be able to have a gas line run through it to service the Flying J or any other business in Preble. He sighted the possibility that a gas line would someday come down 281 past the site. However this is bogus for the following reasons. First a gas line, sewer, water or underground electric would run in the right of way next to 281 and would not be impacted by Preble's buffer zone law. Also it would be stupid to run gas or anything else through any buffer zone because as the map shows, a buffer zone is at the edge of the property. To save money, any business would run gas, sewer etc., the shortest possible route, which would be in the middle of the site far from any buffer zone. Only a a fool would do it any other way.