By Anne Hayden

Enterprise file photo — Michael Koff
Helderberg Excavating and Trucking has been issued a special-use permit that will allow owner Fred Wagner to continue running his landscaping and contracting business, with excavation on the side, after four years of deliberation by the town’s zoning board. Wagner’s business, in Guilderland Center, came under the scrutiny of the board when complaints were made by George and Christina Audi, who bought adjacent property, that Wagner was accepting construction materials onto his property and could be polluting the environment.GUILDERLAND — The zoning board issued a final decision last week on a dispute between adjacent landowners that’s been going on for nearly four years.

The board decided to issue Fred Wagner a special-use permit in the face of accusations from the Audi family that he was conducting illegal business. Wagner will be able to continue his landscaping business with excavation on the side.

“All the comments were taken into consideration, but we made sure we applied the law fairly and consistently,” Peter Barber, the zoning board chairman, told The Enterprise this week.

Although the zoning board did not apply some of the Audis’ requested conditions to Wagner’s permit, Barber said Wagner verbally agreed to drive more slowly on the right-of-way and try to avoid excess dust and noise.

“He also agreed to allow the zoning board administrator to come in and do inspections for compliance,” said Barber.

Even after the special use permit has been issued, Wagner said he is “extremely disappointed in local government and very discouraged in the way the whole matter was handled.”

“I am sure the Audis will try something,” he concluded. “It’s been one thing after another from day one.”

The Audis could not be reached for comment this week.

Long history

It was 2008 when complaints were first made, by George and Christina Audi, against Wagner.

Wagner operates Helderberg Excavating and Trucking, Inc., a gravel-mining business founded in 1959 by his grandfather, which is now a landscaping business with excavation on the side.

The site is on Maeosta Road, off of Hurst Road, in Guilderland Center, where the Audis purchased land in 2008.

The Audis built a home for their family, as well as a larger-than-normal garage, for which they have a variance from the zoning board.

Wagner’s right-of-way, or the narrow path that leads from the road to his excavation site, runs past the Audis’ property.

The Audis lodged complaints against Wagner shortly after purchasing their property, claiming that he was bringing materials onto the site, and therefore his use of the property was non-conforming; Wagner had his own complaints against the Audis, alleging that the garage they built behind their house was larger than the plans showed when they applied for the variance.

Wagner also claimed that the Audis are using the garage as a steel fabrication shop, for their business, Christina Steel.

The two parties appeared in front of the zoning board in November 2010, asking the quasi-judicial board to decide whether Wagner’s use of his commercial property was within his rights.

More than two years and many complaints and appearances later, the board reached its final decision on Feb. 20.

Audis’ garage stands

The board did not, and will not, render a decision about the Audis’ garage or whether they need a business permit, because the town’s building inspector and zoning, administrator Donald Cropsey — who retired on Feb. 15 — said the building was in compliance with the variance, and he had personally checked the inside of the garage to make sure no business was being conducted there.

Enterprise file photo — Anne Hayden
Over-sized garage? George Audi owns property off of Hurst Road, in Guilderland, and the right-of-way that leads to Fred Wagner’s excavation site runs along the side of his land. Audi lodged numerous complaints with the town’s zoning board of appeals because he felt Wagner had excessive traffic using the right-of-way, carrying materials to dump on his land. Wagner complained that Audis’ garage exceeds the size limits granted by his variance, but Donald Cropsey, the now-retired zoning administrator, said the garage complies with the code.“With respect to Audi running a business, I have been in the garage, and he has personal vehicles in there,” Cropsey told The Enterprise this month.

The building height, he said, is in compliance with the variance the Audis obtained, because of the way the height is measured. The height can’t exceed 15 feet, but the height is measured in the middle of the highest point and lowest point of the building. Audi did exceed the height allowed by the variance initially, said Cropsey, but he put a shed roof on the back to bring the low point down.

Former zoning enforcement officer Rodger Stone and Cropsey inspected Wagner’s site on several occasions and said they had seen demolition and construction materials that had been dumped over a bank.

Wagner was given a cease-and-desist order to stop “collecting, receiving, delivering, dumping, and offering rubbish on and to his property,” which the Audis said, at a zoning board meeting in December, he has continued to violate.

Wagner is registered with the state’s Department of Environmental Conservation as a business allowed to accept yard waste in the amount of 10,000 cubic yards annually.

Wagner said he felt he was being harassed by Cropsey and the town for the past several years, alleging that they followed up on all of the Audis’ complaints but did not take his complaints about their garage seriously.

He also implied that Cropsey had a personal relationship with the Audis, something Cropsey denied.

“I have no personal relationship with the Audis,” he said. “I have not been harassing Wagner — he is getting the opportunity to get a special use permit.”

The Audis said they have surveillance video of Wagner bringing in materials like rebar, concrete, and plastic, which they believe is considered construction material and not natural material.

Any material he brings in, said Wagner, he stockpiles and reuses, so it does not stay on the site; the Audis, however, assert that Wagner has buried some of the material.

Reservoir safety

Other concerns that the Audis listed included the proximity of the mining site to the Watervliet Reservoir and potential oil spills from equipment kept on the site.

A garage on the Wagner property is used for storing equipment, and the Audis said they think the garage has a dirt floor, and that they are concerned that fuel and oil may spill and contaminate the soil, potentially reaching the Watervliet Reservoir, the drinking water source for Guilderland and Watervliet.

The general manager of the city of Watervliet, Mark Gleason, sent a letter to Cropsey, in February 2012, stating that he had reviewed Wagner’s application for a special-use permit, and the letter said, “While excavation activities do not conflict with the watershed rules and regulations when they are performed with the necessary precautions in place, Mr. Wagner’s proposed stockpiling and processing of materials such as manure and blacktop may violate the rules and regulations.”

Gleason suggested that Wagner apply for a mining permit from the DEC to ensure extra review and compliance.

Wagner told the board that, if it issued him a special-use permit, he would “consent to a condition that neither manure nor asphalt would be processed for stockpiling on the site.” He also had Steve Walrath, a land surveyor from Altamont, appear before the zoning board to say that, because Wagner would not be mining more than 1,000 yards per year, a mining permit would not be required.

Walrath also said that the activity on Wagner’s property was far enough away — 600 to 800 feet — from the reservoir that he was not violating any environmental regulations.

Rick Georgeson, public information officer for the DEC’s Region 4, told The Enterprise this month, “We do plan to send a solid-waste staff person to the site for an inspection in the near future to follow up on a neighbor’s complaint…This site does maintain proper registration with the DEC to process construction and demolition material.”

Other concerns

The Audis said the trucks driving on the right-of-way, both onto and off of the Wagner property, make a lot of noise and drive too fast, making them fear for the safety of their children, who ride their bikes and all-terrain vehicles near that road.

The Audis asked that Wagner use an overgrown haul road on another portion of his property, rather than the right-of-way, but Wagner said he would not do that.

“I will not impede another piece of my property to benefit the Audis,” he said. He offered to buy more than 20 acres from the Audis, so he could use the haul road and still have undisturbed land, but the Audis declined.

“He just wants the land so he can mine on it,” said Christina Audi, noting that the acreage, behind their house, is a place where her kids can play and observe nature.

The neighbors have said they have both tried to compromise, but have not been able to come to an agreement.

In addition to asking Wagner to use the haul road, the Audis also requested that he limit his business hours to 7 a.m. to 7 p.m., Monday through Friday, and 7 a.m. to noon on Saturday and install gates at the entrance and exit to the right-of-way so that truck drivers would have to slow down.

“We applied conditions we thought were appropriate,” said Barber, and those conditions do not include limiting Wagner’s work hours. “We made sure there were no misunderstandings about what can and can’t be done.”

He said the zoning board consulted with the DEC, the city of Watervliet, the town water department, the planning board, and concluded, “There were no objections from any of those entities.”