By Dan Hust
HORTONVILLE — February 8, 2011 — In a 3-2 vote Thursday, Delaware’s Zoning Board of Appeals (ZBA) opted to reject requests to have Jeffersonville resident and former soap star Forbes March’s firewood kiln facility undergo a full site plan review.
Neighbors David & Michelle Sager and Winfred & Nancy Bivins had asked town officials to reconsider Building Inspector Howard Fuchs’ determination that March’s business fits into the rurally zoned area and did not require planning board consideration.
The town and planning boards had left the matter in the ZBA’s hands, and two months after hearing testimony from both sides, three of the five members said Thursday that the appeals were too late, thus rejecting them.
“The application was not made in a timely manner,” said ZBA member Bonnie Cunningham, “and as far as I understand, that is our focus here.”
She was referencing a town requirement that any appeals of permits be presented to the town within 60 days of the permit’s issuance. In this case, three permits were issued, the last being on July 7, 2010. The Bivins’ appeal wasn’t filed until October 20, but the Sagers’ appeal arrived August 17.
While that was the 41st day after the third permit was issued (for a pole barn), that was also the 116th day after the first permit was issued (for the driveway).
The resolution voted upon Thursday by the ZBA contends that the appeals clock started ticking after that first permit’s issuance, since the Sagers’ issue was with Fuchs’ original decision to allow March’s business as a principal permitted use in the rural zoning district.
The resolution acknowledged that the simple addition of a driveway to March’s property might not have been enough to trigger the Sagers’ concern, but it said the May 6 issuance of the second permit (for a concrete kiln pad) should have made March’s plans “readily visible and apparent.”
Nevertheless, the board members and the resolution offered rationales beyond that of untimely appeals.
The resolution, drafted by town attorney Ken Klein, assessed March’s business as falling under the zoning law’s “forestry enterprises” definition, which is permitted in the rural zoning district.
“I think it’s a firewood business. The only difference … is he has a kiln,” observed ZBA Chairman Ed Sykes. “Should we tell everybody in the firewood business they need a site plan? Our zoning law does not state that.”
“I believe it was not a principle [permitted] use,” disagreed ZBA member Kristin Porter, who considers March’s operation more of a manufacturing/industrial use than an agricultural/forestry one. “… Are we going to turn Swiss Hill into light industry? … I’m not for that.”
Neither was ZBA member Linda Roche, who shared Porter’s concerns and added that perhaps the township should employ two building inspectors.
Both Roche and Porter ultimately voted against rejecting the appeals, while Cunningham and fellow ZBA member Joseph Schultz joined Sykes in favoring rejection.
Nonetheless, Cunningham and Schultz acknowledged concerns over March’s business, with Schultz noting the operation “could be done a little differently” to mollify neighbors, and Cunningham – herself a Swiss Hill resident – hoping March will follow through on promises to “make it more presentable.”
The resolution itself listed unidentified “site-specific aesthetic and other impacts” of March’s business but deemed them irrelevant to the ZBA, asking March to voluntarily “take steps to mitigate the effects of those impacts by using best practices in the operation of the premises and by voluntarily making improvements to the premises to screen and shield the neighbors therefrom.”
Cunningham admitted the zoning law “is vague” on this issue but said that even if she disagrees with Fuchs’ interpretation of that law, it doesn’t make his determination incorrect.
The resolution also acknowledged the “ambiguity” of the forestry enterprises definition but contended that it can only be resolved in March’s favor, “particularly where a contrary interpretation would subject the landowner’s property … to a lengthy and involved process contemplated by site plan approval.”
The Sagers and the Bivins strenuously disagreed, but Sykes would not allow them to speak during the meeting.
“I don’t want to hear it!” he sternly told David Sager, who was attempting to make comments. “... Our deliberations are closed.”
Neither did Sykes appreciate the presence of Undersheriff Eric Chaboty, who was there at Sager’s request to present information about trips the Sheriff’s Office made to his and March’s properties. In the end, Chaboty only got a chance to speak with Sykes after the meeting.
“This whole thing has gotten out of hand,” Sykes lamented – a statement that later seemed prescient when Sager and several neighbors in the room traded angry verbal barbs.
While this may end the ZBA’s deliberations, the matter is by no means settled, and lawsuits may be in the offing.
See this Friday’s Democrat for the Sagers’, Bivins’, Fuchs’ and March’s reactions to the ZBA’s ruling.