ZBA to decide if gravel mine is legal

GUILDERLAND — Two neighbors are accusing each other of violating town ordinances.

Fred Wagner, owner of Helderberg Excavating and Trucking, Inc., says the town is trying to put him out of business.

The reason, according to Wagner, is an ongoing dispute he has had with his neighbor, George Audi.

Meanwhile, Wagner says Audi should have had a variance to build his large garage, and that he needs a permit to use it as a shop.

The town’s board of zoning and appeals must decide whether Wagner’s use of his commercial property is within his rights. A quasi-judicial board, the zoning board must interpret the law.

“Interpretations are black and white. They’re win-all, or lose-all,” commented Peter Barber, the chairman of the zoning board of appeals.

“ I really do not know what the zoning board is trying to do, but I think they are trying to run me out of town completely,” Wagner concluded. “I will respect what the board decides, but what they enforce with me, they need to enforce with everyone.”

Wagner’s gravel-mining business was founded by his grandfather, according to a lease, dated Feb. 13, 1959. The mining site is on Maeosta Road, off of Hurst Road, in Guilderland Center, and the property is in an agricultural zone.

In 2008, Audi purchased property on Hurst Road, and built a home for his family, as well as a larger-than-normal garage, for which he has a variance from the town’s zoning board of appeals. Wagner’s right-of-way, or the narrow path that leads from the road to his mining site, runs past Audi’s property.

Audi lodged a complaint with the zoning board, alleging that Wagner’s use of the property was non-conforming; he claimed that, in addition to mining the site and bringing materials out, Wagner was bringing materials on to the site. Audi’s reason for the complaint was that he didn’t like the amount of traffic using the right-of-way past his house, said Wagner.

Audi told The Enterprise that he made his first complaint to the zoning department roughly two years ago, when he noticed that dump trucks were carrying grass clippings, tree stumps, and concrete blocks onto Wagner’s property.

Is Wagner in violation?

Don Cropsey, the town’s building and zoning inspector, said that when he and the town’s zoning enforcement officer, Rodger Stone, went to look at Wagner’s property, they saw a lot of demolition and construction material from various job sites that had been dumped over a bank.

“I think the impression was that material was dumped there and left, but I actually re-use about 99-percent of the material brought into the site,” said Wagner.

“This history of the property is that it was a gravel mine, pursuant to a gravel permit issued by the town and the [New York State] Department of Environmental Conservation,” said Cropsey. However, he said, Wagner does not have a mining permit; the last permit issued for the site was to his father in the mid-1980s, and it has since expired.

As part of the permit issued in the 1980s, the Wagners agreed to fully re-claim the land by the early 1990s. Reclamation would mean grading the slopes and restoring vegetation, and Cropsey said that the reclamation has not been completed.

“I know the permit had expired, but my impression was that I didn’t need to apply for another one,” said Wagner. He is registered with the state’s Department of Environmental Conservation, as of February, as a business allowed to accept yard waste, in the amount of 10,000 cubic yards annually, but he has no business permit from the town.

In September 2009 Wagner received an appearance ticket from Stone because he had ignored an order to cease and desist “collecting, receiving, delivering, dumping, and offering rubbish on and to his property.” The ticket stated that the zoning board had video and photographic evidence that Wagner had disobeyed the order. 

No compromise

Audi’s attorney, Victor Caponera Jr., said that the Audis were not trying to shut down Wagner’s business, but they did want him to re-route his traffic. Caponera said there is a pre-existing haul road that runs from Wagner’s home, on Osborne Road, to his work site.

“The right-of-way is a 12-foot wide easement, and trucks were coming and going at all hours of the day and night,” Audi said.

 On Oct. 14, Wagner and his attorney, Peter Lynch, met with Audi and Caponera to discuss a resolution to Audi’s complaints. Audi proposed that Wagner use the haul road for business traffic, rather than the right-of-way. Wagner rejected the proposal. 

“I would have to cut a roadway 3,000 feet through my property. George hasn’t been very neighborly, so I don’t feel like I should have to be accommodating right now,” said Wagner.

Audi told The Enterprise that he had offered to help pay for the cost of cutting the new road. Wagner said he had offered to buy a portion of Audi’s property so that he wouldn’t have to drive past Audi’s house, but that Audi refused to sell any property.

“We could not come to a mutual agreement. We have tried everything we know to do to alleviate this situation. No matter what happens, either Wagner or Audi will be disappointed,” said Stone.

“It would not have come down to Wagner potentially losing his business if we could have come to an agreement about the road,” Audi concluded. “Now the town has investigated his use of the property and has to decide if it’s legal.”

Is Audi in violation?

Wagner has his own complaints about Audi’s property. He says the garage Audi built behind his house is larger than the plans showed when Audi applied for a variance. Wagner also says that Audi, a union iron worker, is using the structure as a steel fabrication shop, without obtaining a home occupation permit.

This isn’t the first time the zoning board has heard complaints about Audi. In 2004, he requested a variance to build a garage on his property on Meadowdale Road. At a public hearing on the variance, residents of Meadowdale Road said they felt the garage would be too big, would block their views of the Helderbergs, and would look “too industrial.”

In response to his neighbors’ complaints, Audi, at the public hearing in 2004, ripped a drawing of his plan from a bulletin board and withdrew his application.

“We issued a permit for Audi to build a garage, a big garage, and I believe it complies with the code,” said Cropsey. 

The board plans to hold another public hearing on the matter of Wagner’s business, possibly at its December meeting.