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STATE
OF NEW YORK
SUPREME COURT : COUNTY OF CORTLAND
________________________________________________________________
JOSEPH
J. HEATH,
Petitioner,ATTORNEY'S
AFFIDAVIT
-vs-
Index No.:
TOWN OF PREBLE ZONING BOARD
OF APPEALS,RJI No.:
Respondent.
________________________________________________________________
STATE
OF NEW YORK )
COUNTY OF ONONDAGA ) ss:
JOSEPH J. HEATH, ESQ., being duly sworn, deposes and says that:
1. I am an attorney duly admitted to practice in the State of New York
and the Petitioner in the above entitled action, and as such, I am familiar
with the proceedings herein and the relevant facts of the action and the
underlying proceedings before the Town pf Preble boards.
2. This Affidavit is submitted in support of my Petition requesting the
Court to vacate and annul the Town of Preble Zoning Board of Appeals Resolution,
dated June 8, 2000, which approved a special permit application from Tully
Recreation LLC, Song Mountain for a snow making well and storage pond,
by denying my January 31, 2000 Appeal to the ZBA, which sought a review
of the January 24, 2000 decision of the Town Code Enforcement Officer;
and vacate and annul the interpretation of the Town of Preble Code Enforcement
Officer, dated January 24, 2000.
BACKGROUND
3. The property in this case is presently zoned Residential Lake Side
(R1L) and is bordered on the north by Lake Road and on the east, south
and west by other R1L zoned lots.
4. In October of 1999, Tully Recreation, LLC, the owners of Song Mountain
Ski Center , submitted applications for site plan and special use permits
to the Town of Preble Planning Board and Zoning Board of Appeals (ZBA).
5. Upon hearing of these applications, on November 1, 1999, I wrote to
the chairpersons of the Planning Board and the ZBA, with specific requests
that "the Zoning Enforcement Officer and the ZBA make a specific determination
s to whether or not this proposed project would be in compliance with
§ 645 of the Zoning Ordinance." A copy of this November 1st letter
is attached to the Verified Petition and made a part thereof as Exhibit
"B"; and a copy of § 645 of the Zoning Ordinance is attached to the
Verified Petition and made a part thereof as Exhibit "C"
6. On November 16, 1999 Patrick M. Snyder, Esq., Special counsel to the
ZBA wrote me and acknowledged my November 1st letter and specifically
noted my "request for an interpretation of § 645". A copy of this
November 16th letter is attached to the Verified Petition and made a part
thereof as Exhibit "D".
7. On January 24, 2000, Mr. Snyder wrote me again with the code enforcement
officer's interpretation of § 645. A copy of this January 24th letter
is attached to the Verified Petition and made a part thereof as Exhibit
"E".
8. By letter dated January 31, 2000, I appealed this January 24th interpretation
of the code enforcement officer. In this letter, I cited extensive case
law and other legal sources to support my position. A copy of this January
31st letter is attached to the Verified Petition and made a part thereof
as Exhibit "F".
9. On March 2, 2000, the ZBA held a public hearing on this matter, with
extensive testimony from citizens and presentation of opinions by real
estate experts. With a lone exception, all Preble residents who testified
at this public hearing were opposed to the granting of a special use permit
to the applicant to operate this snow making well and storage pond on
a residential lake side zoned lot.
10. On June 1, 2000, the ZBA met to decide on my appeal and by a 4 to
3 vote, rendered its decision. I was not properly notified of this decision
until June 10th, when I received the June 8th letter from Mr. Snyder,
wherein he stated that this Decision was filed with the Town Clerk, on
June 5th. A copy of Mr. Snyder's June 8th letter and the ZBA Decision
is attached to the Verified Petition and made a part thereof as Exhibit
"l".
PROHIBITED, ILLEGAL EXPANSION OF A NON-CONFORMING USE
11. It is this June 5, 2000 ZBA Decision and Resolution that is the subject
of this Article 78 proceeding, because the Decision and Resolutions are
arbitrary and capricious, and fail to properly and logically enforce the
Preble Zoning Ordinance. The provisions of § 645 of the Ordinance
should have been strictly construed and the plain and ordinary meaning
of non-conforming use and the clear prohibition of expansion of any existing
non-conforming use should have been applied.
12. The Preble ZBA failed to strictly construe the Zoning Ordinance, as
required by law.
13. The Preble Zoning Ordinance was adopted on December 8, 1997. At that
time the existing Song Mountain ski facilities were located to the south
of Song Lake Crossing Road and to the west of Song Lake Road. This ski
facility was clearly a "recreation area" as defined in § 210 of the
Ordinance: "the sum of all open or covered areas used for commercial recreation
purposes."
14. The Ordinance zoned all of the Song Mountain ski facility property
as "agricultural", as defined in § 520 of the Ordinance. § 522
lists the permitted uses in an agricultural zone and "recreation area"
is not a permitted use; § 524 lists "recreation area' as one
of the conditional uses requiring a special permit.
15. Therefore, as of December 8, 1997, Song Mountain's ski facilities
became a grand fathered in non-conforming use, as they were not permitted
in the agricultural zone.
16. No special permit has ever been applied for, or received, for the
main, pre existing, ski facilities at Song Mountain; it continues to this
day, as a non-conforming use in an agricultural zone.§
17. § 645 (A) of the Zoning Ordinance provides that: "Intent
It is the intent of these regulations to permit non-conforming uses to
continue until they are removed, but not to encourage their survival."
Although this provision was repeatedly brought to the attention of the
ZBA and its special counsel, the June 8, 2000 Decision and Resolutions
are silent as to its effect on this expansion project.
18. § 645 (B) of the Zoning Ordinance provides that: "Enlargement
No non conforming uses shall be enlarged or increased, nor extended
to occupy a greater area of land that was occupied at the effective date
of the adoption of these regulations." Once again, although this provision
was repeatedly brought to the attention of the ZBA and its special counsel,
the June 8, 2000 Decision and Resolutions are silent as to its effect
on this expansion project.
19. Clearly, the proposed snow making well, storage pond, pump house,
driveway, etc., which are to be constructed on a lot that is not even
owned by the applicant and which are to be located on lots that are separated
from the existing property of Song Mountain by Song Lake Road and lot
# 13, constitute an expansion (or extension) which will "occupy a greater
are of land that was occupied at the effective date of the adoption" of
the Zoning Ordinance, and therefore are clearly outlawed by the plain
language of § 645 (B).
20. Attached hereto, as Exhibit "M" is a map of the lots in question.
The proposed snow making well, storage pond, pump house, driveway, etc.,
are to be located on lot #15. Lot # 15 is not even owned by Tully Recreational;
it is still owned by Preble Town Judge Marilyn Stoker. The ZBA was informed
by Tully Recreational representatives that a purchase offer has been submitted
to by lot # 15, but that such offer and purchase is contingent upon the
granting of the special permit in question in this matter. Clearly, neither
Song Mountain nor Tully Recreational owned lot #15 in December of 1997,
when the Zoning Ordinance was enacted.
21. Lot #15 is zoned Residential Lake Side (R1L), which is the most restrictive
zone in the Town of Preble. One of the specific Objectives of the Town
of Preble Land Use Plan was to achieve "more intensive protection of the
Town's lakes", because the lakes were being increasingly threatened by
the intensive development around the town's lakes. Therefore, the land
use plan stated that: "Development in areas which are within 1000 feet
of the high-water mark of the Town's lakes shall apply a higher standard
of protection for the environmental, aesthetic, and recreational qualities
of the area." This proposed well and storage pond are well within 1000
feet of the north shore of Song Lake.
22. Clearly the newly proposed snow making well, storage pond, pump house,
driveway, etc., are an expansion of the Song Mountain operations, physically
and geographically onto new lots that they do not even own.
23. Since Song Mountain only runs one down hill ski operation and since
this proposed snow making well, etc, are clearly meant to be nothing more
that an extension (connected by underground pipes) of their current snow
making operations, this new project is clearly an expansion of Song's
existing operations.
24. Further, § 210 of the Ordinance defines "recreation area" as:
"the sum of all open or covered areas used for commercial
recreation purposes." A snow making well and storage pond that are connected
to a commercial ski facility by underground pipes, for the sole purpose
of supplying water to the existing snow making facilities are clearly
part of the over all operation of that commercial ski operation.
THESE PROPOSED NEW STRUCTURES AND USES
CAN NOT BE AN ACCESSORY USE
25. In Conclusion of Law #2, of its June 5th Decision (Exhibit L to the
Petition), the ZBA made an erroneous finding that: "There will be not
expansion of a non conforming use, even if the main portion of Song Mountain
is considered to be non conforming." This conclusion, which ignores all
the facts and all logic, is inherently premised upon the argument pushed
by Tully Recreational, that these new structures and uses are an "accessory
use" to Song Mountain's existing main facilities.
26. This conclusion, that these proposed new structures and uses, on a
physically separate lot, "will not be an expansion" is clearly erroneous,
against the weight of all the evidence, and therefore, arbitrary and capricious.
27. The Preble Zoning Ordinance § 210, provides a clear definition
of "accessory use or structure":
A use or structure on the same lot and of a nature customarily
incidental and subordinate to the principal use or structure . . . [Emphasis
added]
28. Clearly this snow making well, the new pump, the pump house, the large
pond and the gravel drive way, which are proposed on a lot not even owned
by Song Mountain and on a physically separate lot for the principal use,
can not properly be an accessory use under the town zoning law.
29. The zoning law requires that any accessory use be on the same lot
as the principal use. That is clearly not the case here. Therefore, the
new pond, auxiliary pump, pump house and gravel driveway can not properly
be found to be accessory uses under our zoning code.
30. Since these proposed new structures and uses can not be accessory
uses, they must, therefore, they would clearly constitute an expansion
of Song's existing facilities and snow making operations.
31. Since these proposed new structures and uses are clearly an improper
expansion of Song's pre-existing, non-conforming use, they would be in
violation of Zoning Ordinance § 645 (B). This clear violation of
§ 645 (B) should have compelled the ZBA to reject this application
for a special permit.
32. Zoning Ordinance § 903 (1) (B) mandates that the applicant for
a special permit must prove that the structure and/or use "[i]s in compliance
with all other applicable sections of this Zoning Ordinance." Since these
proposed new structures and uses would clearly be in violation of §
645 (B), the ZBA was required, by § 903 (1) (B), to reject the application
for a special permit.
THIS WELL WILL LEAD TO THE DEPRECIATION OF
AT LEAST TWO RESIDENTIAL PROPERTIES, AND,
THEREFORE, VIOLATES ZONING ORDINANCE §903 (1) (I)
33. Neighboring homeowners Dennis Kennedy and Sue Schmidt have submitted
written proof to the Board that their homes' values would be significantly
negatively impacted if this well were permitted to be operational. The
Kennedy home is on lot # 23, on Exhibit M, and the Schmidt home is on
lot #24. These are the two closest, residential wells to this new, proposed
high volume, snow making well. These five (5) letters from relators and
real estate property value experts are attached collectively hereto, as
Exhibit "N". They document that the potential damage that may be caused
to these two residential wells and the mere fact that they must be continuously
monitored to insure that the wells will not be negatively impacted by
the draw down from the snow making well, reduces the property values of
the Kennedy and Schmidt homes.
34. This is exactly the purpose of the town zoning laws: to prevent any
new project from diminishing the value of the existing homes. Specifically,
ZO § 903 (1) (I) mandates that the applicant for a special permit
must prove that the structure and/or use "[e]nhances neighboring property
and does not lead to depreciation of properties." Clearly the diminished
value of the Kennedy and Schmidt homes documents that the applicant did
not meet this burden of proof in ZO § 903 (1) (I), and therefore,
Song is not entitled to this special permit.
35. The ZBA failed to even make a finding relative to the diminished value
of these two homes. The Board did adopt the recommendation of the Planning
Board that a monitoring well (MW # 5) be installed to supposedly shut
down the snow making well if its high volume of water draw reduces the
water table to a certain point. The problem with this approach is two
fold: First, the conditions set by both the Planning Board and the ZBA,
with regards to this MW # 5, are too vague and unspecific to insure that
it will actually protect these two residential wells.
36. For instance, the Planning Board mandated that: "The permittee shall
attempt to mimic the construction of local residential wells to the best
of their ability."; and the ZBA's June 8th Resolution contains this condition:
"Applicant will provide written explanation of the procedure to determine
the reference level for the maximum 2-ft. Draw down in the guard well
mentioned in Planning Boards [Sic] conditions #2."
37. Essentially Song Mountain is merely required to do the best it can
to install a guard well, with no specific conditions set to insure that
such a contraption will actually work to shut down the snow making well,
if it draws down the water table too far. Further, there is no mechanism
for any town board to be informed that such a guard well has been properly
installed or that it is actually functioning properly to protect the residential
wells.
38. The multiple letters from realtors and other real estate experts
(Exhibit N) document that the danger to the wells will, in deed, reduce
the property values. It is the potential harm to the two residential wells
that diminishes the value of the two homes. No matter how effective the
guard well works, its mere existence and necessity are proof that these
two homes will always be clouded with the fact that their wells are in
jeopardy. Obviously this potential jeopardy to the wells will make any
prospective buyers of these two homes less eager to buy and thereby reduces
the value of these two homes.
WHEREFORE, Petitioner respectfully requests judgment pursuant
to Article 78 of the CPLR:
(1) Vacating and annulling the Town of Preble Zoning Board of Appeals
Resolution, dated June 8, 2000, which approved a special permit application
from Tully Recreation LLC, Song Mountain for a snow making well and storage
pond, by denying the January 31, 2000 Appeal by Mr. Heath to the ZBA,
which sought a review of the January 24, 2000 decision of the Town Code
Enforcement Officer;
(2) Vacating and annulling the interpretation of the Town of Preble Code
Enforcement Officer, dated January 24, 2000; and
(3) For such other and further relief as to the Court may seem just, equitable
and proper; on the grounds that:
A. The ZBA failed to properly protect neighboring property owners, pursuant
to ZO § 903 (1)(I);
B. The ZBA failed to strictly enforce ZO §§ 645 and 903 and
thereby failed to protect against the illegal expansion of a non-conforming
use; and
C. The findings of the ZBA are unreasonable and irrational because they
are totally unsupported by the evidence before the Board.
Petitioner will file a Memorandum of Law in Support of this Petition,
after receipt of the Answer from the Respondent.
Dated: June 30, 2000
___________________________
JOSEPH J. HEATH, ESQ.
Petitioner
716 East Washington Street
Suite 104
Syracuse, New York 13210
(315) 475-2559
Sworn to before me this
30th day of June, 2000
____________________
NOTARY PUBLIC
CERTIFICATE OF SERVICE
This certifies that the undersigned caused a copy of the foregoing Notice
of Petition, Verified Petition, and Attorney's Affidavit in Support of
Petition of Joseph J. Heath, Esq., to be served upon the following counsel,
and party of record by causing a copy thereof to be personally served
upon:
Town of Preble Zoning Board of Appeals
Town Hall
Preble, New York 13041
Patrick. M. Snyder, Esq.
Special Counsel to ZBA
4 Church Street
Cortland, New York 13045
DATED: June 30, 2000_____________________
JOSEPH J. HEATH, ESQ.
Petitioner
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