By Dan Hust
HORTONVILLE — February 11, 2011 — Even though the majority of Delaware’s Zoning Board of Appeals (ZBA) essentially ruled in his favor last week, Forbes March didn’t seem to be celebrating.
“There’s no ‘prevailing’ when you’re dealing with neighbors,” he related as soon as the meeting came to a close at the town hall in Hortonville.
Neither were those neighbors – David & Michelle Sager and Winfred & Nancy Bivins – celebrating.
The Bivinses, who live next door to March’s home and controversial kiln-dried firewood business in Jeffersonville, left the meeting incredulous that town officials did not unanimously agree that March’s venture should undergo full site plan review.
“The decision that was made was a joke,” Nancy Bivins told the Democrat last week. “It’s not right.”
“I believe their actions were arbitrary and capricious,” said David Sager.
The Bivinses and the Sagers, who live across Swiss Hill Road from March, say they have been dealing with noise, smoke and tractor-trailer issues since the beginning of last summer, when March began operating the kiln.
Surprised at the size and nature of the business, they filed appeals last year with the town, asking officials to review the approvals given to March by Building Inspector Howard Fuchs.
Last week, the ZBA rejected both appeals on the grounds that they were grieved too late. (See this past Tuesday’s Democrat for more info.)
Quality of life issue
Bivins said her appeal was filed past the 60-day deadline because no one ever told her she could appeal the decisions.
“Where was our forum?” she said, decrying town officials’ continuing reluctance to let the Bivinses fully explain their concerns. “... We were not allowed to talk at the planning board meeting [or] the next ZBA meeting. Then finally in December, we got to say a few things, but [ZBA Chairman Ed] Sykes kept saying everything was not ‘pertinent,’ ‘we are off track here,’ etc. They would not even refer to our packet of research.”
Now, “Forbes March decides when it’s going to be quiet on this hill,” lamented Bivins, who no longer opens her windows on summer nights due to the clanking and cycling of the kiln.
The smoke from the wood furnace that heats the kiln bothers her too, as do the tractor-trailers, but town leaders have told her he’s operating in compliance with the rules.
“The town supervisor [Jim Scheutzow] and Forbes informed us the kiln is a mobile unit,” Bivins related. “... So move it – recoup your losses at an appropriate commercial industrial location.
“We cannot move our homes or recoup the devaluation of our properties with this industrial manufacturing facility operating in our neighborhood.”
Noting their windows don’t face his business, March discounts the Bivinses’ concerns, arguing that most of the “smoke” coming out of the kiln is water vapor emitted from the rapidly drying firewood, which he sells to retailers like Home Depot and Wal-Mart.
He also claimed the business operates mostly from 7 a.m-4 p.m., though on Tuesday of this week around 6 p.m., the kiln was still emitting noise and smoke.
Bivins considers it an industrial kiln, one she can hear inside her house when running full bore.
“It ... is generating huge amounts of smoke that encompass the entire neighborhood,” she said. “It is in our homes and on our clothing. It’s a health issue – one that could be addressed if the town chose to follow the zoning laws and comprehensive plan.”
‘I feel vindicated’
Located on eight acres in the middle of the county’s Agricultural District #1, the facility is, to March and Fuchs, an acceptable use.
Even though it was based on the timeliness of the appeals being filed, the ZBA’s 3-2 vote gratified Fuchs, as the resolution backed up his stance that March’s operation is a “forestry enterprise” – a principal permitted use in the rural zoning district.
“I feel vindicated,” he said after the meeting.
Fuchs added he does not regret his decision to issue three separate permits to March instead of making him go through a site plan review that would have investigated noise, traffic and environmental issues.
But he acknowledged the ZBA’s vote didn’t end anything.
“I know it’s not going to make the situation better,” Fuchs admitted.
Indeed not. March, the Bivinses and the Sagers all remain bitter.
“That guy [David Sager] is going to sue everybody,” predicted March, who feels harassed by his neighbors. “It’s unfortunate that we can’t work this out as gentlemen ... [but] I won’t give into that. It’s not right. It’s not fair.”
He’s considering litigation himself but said he’ll wait “for my temper to clear.”
He does appreciate other neighbors, some of whom turned out in his support at the ZBA meeting.
“Certainly the community has been encouraging,” March said, which is why he plans to continue living and doing business in Jeffersonville.
‘It is not a permitted use’
The Bivinses and Sagers, however, feel March has and continues to act with disregard to their quality of life. They’re unconvinced the screen of fast-growing pine trees he plans to plant this spring will ameliorate the situation.
“The noise and pollution are out of control,” Nancy Bivins charged. “... What’s it going to be next summer?”
“The planting of trees is irrelevant at this point, and it has never been as much about my viewshed as much as it as has been about the smoke, noise, hours of operation, and the fact that this is truly not a permitted use within the confines of Town of Delaware Zoning Law,” David Sager stated.
“Is it unsightly? God, yes! However, the operation is 7 days a week, 24 hours a day,” he continued. “Daily there is the loud noise of a diesel skid steer engine that works regularly for several hours. There is also the daily noise from the wood processor that saws the log-length timber and splits it. There is the noise of regular picker loads of raw timber being dropped off. There is the regular noise of pick-up and delivery trucks and tractor trailers. There is regularly recurring noise from the compressors on the firewood kiln that can be very noisy and run on and off throughout the day and night. There is also the dropping of wood from a conveyor into the kiln to feed the fire, which you can hear at regular intervals and which sounds like the dropping of logs in a garbage Dumpster.
“If it wakes me in the middle of winter with the windows closed, imagine trying to sleep at night in the summer with the windows open (an activity we regularly have done over the years).
“We knew we were moving into an agricultural district when we bought our home several years ago and have never complained about the farm activities that surround our area,” he said. “However, this is not agriculture and this is not forestry. It is not a permitted use within the zoning law, and we did not sign up for something like this. Presently, we intend to explore all of our legal options in dealing with this issue.”
Did the system work?
For his part, March is aggravated but satisfied with the situation as it currently stands.
“It’s a frustrating system at times, but it’s a good system, and the system works,” he said of the town’s deliberations.
Michelle Sager, on the other hand, sees a system that broke down.
“On more than one occasion, our neighbor down the street, Mrs. [ZBA Board member Bonnie] Cunningham, expressed her dismay to my husband and me that a business running with unregulated hours of operation as large, loud and unsightly as the March commercial project had been permitted in the neighborhood without any oversight by the town,” she recalled.
“On one of these occasions, she sat in our living room while looking across the street at the site and told us she felt bad for us, couldn't live across the street from something so out of control herself, and that the town would have to do something to make things right for the neighbors. She expressed similar concerns at the Dec. 9, 2010 ZBA public hearing.
“We were shocked that she did such an about-face and fell back on an argument revolving around the 60-day rule regarding the time limitation for our appeal,” Sager continued. “Her judgment and vote that we did not file our appeal within 60 days does not make sense, and it is clear how nebulous the entire concept is.”
Sager said the issue crept up on neighbors.
“At no time during the permitting process did Forbes March mention in writing or in drawings that there would be an enormous warehouse on the property,” she explained. “When your neighbor tells you that he wants to run a simple ‘Mom and Pop operation’ and begins the process with a small, unpaved driveway and a small concrete slab, you take him on his word.
“By the time the permit for the warehouse came months later, the business was beginning to sprawl across the property. This is when we knew something wasn't right.
“We looked into it, and we filed the appeal as soon as we could – certainly well within the 60 days required from when the permit for the structure was issued.
“So I ask Bonnie Cunningham and the ZBA, 60 days from what?”
Coming next week: an investigation into the town’s actions, and answers to questions about March’s ability to run a local business as a Canadian citizen.