NEW SCOTLAND — The New Scotland Zoning Board of Appeals has set an Aug. 25 public hearing for the Normanskill Road farm-stand owner whose business was previously shut down by the town for violations of New Scotland’s zoning code.

In May, Ann Neander was cited, and her farm stand was shut down, by the town for placing a shed on the property without the required building permit; housing chickens on the site; processing firewood and selling firewood at the stand; and selling retail garden plants on site as well as using the shed as a commercial sales building.

Building Inspector Jeremy Cramer has since said that the chickens, vegetables, and flowers are a permitted use, subject to a special-use permit. But Cramer has determined the firewood processing and sales to be an agribusiness, which is not permitted in that zoning district. 

Neander’s contention is that this is all a moot point because her family’s farm stand has been selling agricultural products since before the current zoning went into effect — which was thought to be 2004 — exempting it from the present laws on the books.

 Neander told The Enterprise in July that the farm stand is her only means of income, and that an off-the-farm job is not possible because she took care of her elderly mother and a brother, who is handicapped. 

Jeremy Manning, Neander’s lawyer, told The Enterprise this week that, in order for Cramer to make a determination about the firewood-sale denial, he has to present evidence of a discontinued use, and failure to support such a denial without evidence is an abuse of discretion and is not only reviewable, it’s also subject to an Article 78 proceeding — and likely to be overturned. 

Article 78 proceedings are typically filed by citizens to challenge government decisions.

Crystal Peck, the attorney for New Scotland’s zoning board, told The Enterprise that it would not be proper to comment on a specific application that is pending before the board, but offered by email procedural background for this type of application and its standard of review:

“When an application like this comes in (i.e. here it was an application for a Special Use Permit) Jeremy [Cramer] makes an initial determination that the proposed use is permitted in the Zoning District where the parcel is located. If he determines that it is not permitted (i.e., wood processing and resale activities) then the property owner can appeal that determination to the ZBA.

“For a nonconforming (not permitted) use to be ‘grandfathered’ under our Zoning Code it has to continue without interruption. If there is any discontinuance of the use on the subject parcel for one year or more, then it is deemed abandoned and cannot be revived absent a use variance. 190-30(D). (There are also constraints on changes and expansions to nonconforming uses). The burden of proof is on the property owner to establish that the pre-existing use was legal prior to the enactment of the zoning restriction and that it had continued without interruption.

“If the Building Inspector does not have enough evidence to support a finding that the use pre-existed the pertinent zoning regulation or has continued without interruption on the subject parcel then either a violation notice will go out or he will issue a written determination (it depends on how the matter comes to his attention). The property owner/applicant can then appeal the determination to the ZBA.

“On the appeal, the ZBA has the authority to look at the question with, essentially, fresh eyes and can then reverse, affirm, or modify the Building Inspector’s determination based on the evidence before it.”

Zoning board Chairman Jeff Baker told Manning during the July 28 meeting that Manning needs to provide the board with documentation proving that the farm stand had continuously been in business since current zoning took effect. If Manning were able to do that, Baker said, Neander’s issues with the town would likely go away.

Manning told The Enterprise this week that his client would provide the board with the additional financial information it was looking for.

Neander has a special-use permit application still pending before the planning board, Baker said, but she is looking for a ruling from the zoning board as to whether she even needs one. Neander said she can demonstrate that she has a pre-existing non-conforming use, Baker said; therefore, she hasn’t triggered anything to necessitate a special-use permit and should be allowed to continue to operate her farm stand unimpeded. 

 Manning said Neander and her family, the Donatos, have been farming in the area since the 1930s, and have sold firewood at the location since at least 1945, and have submitted several affidavits to that effect. And Manning said there is “substantial evidence” in the form of sworn affidavits that the sale of the firewood represents a pre-existing non-conforming use. 

Manning also said with regard to the records, that the firewood sales are typically a cash business and have been for many years, but said there is extensive testimony speaking to the sale of on-site sales of firewood going back to 1991.

 Also at issue was that the parcel of land at the corner of Normanskill and Krumkill roads where the farm stand is located had been subdivided from a larger piece of land owned by the Donatos.

Baker told Manning he had to “connect the dots” for the zoning board to show that the new, smaller parcel had been continuously used since the subdivision for the processing and selling of firewood that was brought from off-site. Because once the land was subdivided and became its own one acre parcel, it became its own independent entity to which all the pre-existing non-conforming uses which may have applied to the larger parcel of land no longer applied.

Public hearing held for Tommell Livestock

Also during the July 28 zoning board meeting, a public hearing was held for use variance to allow Tommell Livestock, LLC to use their four-bay garage as a commercial public garage, which is not a currently allowed use for the parcel.

It’s a reconsideration of an application the zoning board denied last year because Tommell sued the board and Building Inspector Jeremy Cramer, and, in July, after finding “no rational justification” for boards’  “disparate treatment” of the use-variance application from Tommell, Albany County Acting Supreme Court Judge Kimberly O’Connor annulled and “remitted back to the Board for reconsideration” the application. 

The request from Tommell is for the renewal of a use variance previously granted to the prior owner of the property, Charles Schufelt.

Robert Rosborough, the Tommells lawyer, said his clients were looking to use the garage mainly to fix their own vehicles, but with the option to repair third-party vehicles — which Rosborough called a 90-10 split — but he added that those circumstances could vary. 

The Tommells would need a variance regardless of whether or not they were planning to offer garage services to the public, because they will still be working on commercial vehicles, which is not an allowed use in the zoning district.

During the public hearing portion of the meeting, Tommell’s neighbors, Erik Grissell, Karen Williams, and Larry Baumgartner spoke in favor of the application, even going so far as to say they didn’t want a fence included as part of the conditions of the special-use permit, stating they moved to Clarksville precisely for its openness. 

Board member Lance Moore said the property at 173 North Road had been contaminated twice before, so he’d like to see some kind of containment system put in. Baker said that could be part of the conditional approval because the zoning board is allowing a hazardous activity. 

Baker said the goal is to discuss a final decision on the application at the next board meeting.