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Residents comment on proposed zoning code changes – Part II
By Lee Chowaniec
Jun 5, 2013, 09:32
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Dave Hangauer was the next to address the Lancaster Town Board regarding the proposed Light Industrial District code change that would expand the language to read, “Any commercial recreation activity including, but not limited to, private commercial airports (special use permit required), from its current code language of “Any commercial recreation activity (special use permit required) Added in 1997.

Hangauer introduced himself as one of the spokespersons for the Save Aviation Coalition of Lancaster (SACL). Before speaking he presented handouts to the town board members to follow along. He then spoke on his need to make some clarifications on the airport request for the code change.

Hangauer: What I wanted to show here tonight is that Lancaster Airport Inc has violated both the spirit and the letter of the June 10, 2010 agreement with SACL that was brokered by the ZBA as a result of extensive hearings in front of them. And that was the result of a number of hearings and expense and efforts on all our parts – SACL, town and Lancaster Airport Inc.

The intent of this agreement was to prevent the airport from requesting changes without giving the residents advanced notice so that they don’t get blind-sided again, and to avoid very expensive lawsuits for the Town, the airport, and the residents. Even this agreement was the result of a great deal of energy, time and expense by the residents in an attempt to defend their quality of life here in Lancaster.

Please refer to the handout presented to you. Please refer to section I part B on the first page of the Agreement. There it states BLA agrees to provide SACL 10 days written notice prior to submitting any application or request including, but not limited to, zoning amendments (including text amendments).

On page 4 of communication 311 it states “The Section 2 amendment has been requested by the owners of the Lancaster Airport to allow the Lancaster Airport to be eligible for federal reimbursement”. On page 3 under ACTION ITEMS the Planning Board is now recommending a Resolution for a local law to amend the Lancaster Zoning Code for Light Industrial District zoning as “(f) Any commercial recreation activity including, but not limited to, private commercial airports (special use permit required).” The airport is requesting the Planning Board to recommend this code amendment to the town board. The airport was supposed to give us a ten day notice of any activity undertaking. We would have been at the Planning Board had we been given the 10 day notice.

So when did we receive a notice. Adam Walters who is the attorney for Lancaster Airport Inc. sent our attorney, Art Giacalone, a notification letter the day after the Planning Board met. The Planning Board met and approved this zoning text change recommendation on May 15th, the day BEFORE the airport attorney sent the letter you have just been given to SACL’s attorney and SACL representatives. Consequently, SACL was unaware of the airport requested change and was not present to speak on the consequences of this change in front of the Planning Board. Presumably the Planning Board was not made aware of this Agreement, so both the residents and the ZBA were betrayed by this airport zoning request, and critical information was withheld from the Planning Board. We were blindsided!

Councilmember Donna Stempniak: At the Planning Board you would not be allowed to speak. Those are the rules. That is why the recommendation comes to the town board and where there will be a public hearing. You would have just had to sit there.

Hangauer: We would have certainly liked to have been there.

Stempniak: That’s why we will have a public hearing coming up.

Hangauer: This was a clear violation of the ZBA agreement.

Councilman Mark Aquino: You guys are going to be given a substantial amount of lead time before the public hearing. You will have at least a month or six weeks to prepare. I am pretty confident that you have your ducks in a row, and the other side as well. You may choose to split hairs, but the bottom line is that are going to be given an opportunity to be heard. You may split hairs on the agreement but I think we are honoring the spirit of the (ZBA) agreement. If it tweaks you because they didn’t give a notice on time, you will have enough time to have your say. The copy of the letter from attorney Walters splits hairs on dates, but the public hearing will be sometime in July.

Supervisor Dino Fudoli: I think Mark (Aquino) is right. There is going to be an opportunity to speak at the public hearing where it is not possible at the Planning Board; whether there was a notification or not. You will have a chance to bring everything out at the public hearing.

Hangauer: This is of course at our expense again to defend ourselves; to hire an attorney again and where we received legal advice earlier in the day. So let just give a couple excerpts from our legal counsel. I am quoting now. “Given the fact that the Town of Lancaster zoning code does not allow a commercial airport in any zoning district, including General Industrial, it would be unfair and dishonest to allow that use to be snuck in the backdoor and allow it in a Light Industrial District by putting private commercial airport as commercial recreation.

The attorney also recommended the Town Board ask the Planning Board to separate the airport zoning change from the other and rescind their recommendation on this airport zoning change for a Resolution. They did not do what they were supposed to.

As Lee mentioned earlier, this is not a little thing. This is not a little change in wording; this is a slippery slope action. If such a Resolution were passed by this Town Board then the Lancaster Airport zoning status would be changed from a non-conforming use with a 25% expansion limitation (and special use permit needed) to a conforming use with no expansion limitation (but still needing a special use permit). Anyone can come into town, purchase 25 acres of land off Ransom Road and build an airport. This is not where you really want to go. So this is a big deal.

It is very sad that the residents have to continually defend themselves on this issue. As I said earlier we have had to already put a lot of time and money into this effort and now we will have to pay an attorney again to defend us in this matter. This never should have gotten this far. I know you guys are trying to be fair…

Aquino: I am glad to hear that. I am not advocating one side. They have a point in saying that in 1992 they had a conforming use. That is what this hearing is about. To say that they don’t have a right to come before this board … that’s what this public hearing is about. You are asking us to shut them out. You said it should not have gotten this far. Let’s talk about all the issues, get everything on the table.

Hangauer: Last points as to why it should have never gotten this far. I would also like to mention what our attorney had pointed out in a previous letter to the ZBA: To prevent public fraud and avoid improper collusions, New York's courts have repeatedly held that neither the mistaken or erroneous issuance of a permit, nor latches [the passage of time and change in circumstances], bars a town from enforcing its zoning laws, even if the enforcement of the existing zoning and land use laws were to lead to a "harsh result." See, for example, Parkview Associates v. City of New York, 71 NY2d 274, 282, 525 NYS2d 176, 178-179 (1988); also see, for example, Mt. Lyell Enterprises, Inc. v. Derooy, 159 AD2d 1015, 1016, 552 NYS2d 728, 729-730 (4th Dept. 1990); Showers v. Town of Poestenkill ZBA, 176 AD2d 1157, 1159, 575 NYS2d 600, 602-603 (3d Dept. 1991); E.F.S. Ventures Corp. v. Foster, 71 NY2d 359, 370, 526 NYS2d 56, 61 (1988).

So just because it is our opinion things have not been done properly in the past, it doesn’t mean the town is off the hook. I am just putting this out there that this is the responsibility of the residents, this is about the responsibility to provide by the laws, and this is a big deal.

Town Attorney John Dudziak: Mr. Supervisor I just want to make a comment here. The stipulation presented here was between the attorneys of the airport and SACL. I see the press is here and in terms of the lawsuit it would be disingenuous to not point out that the stipulation agreement clearly states the town of Lancaster, not the planning board; and the Town Board just received the packet today. And I believe there was an e-mail to SACL’s attorney as well as the letter of May 16th. I just want to clarify that.

Supervisor Fudoli: It came to the Town of Lancaster, not the Town Board. It came to the Town of Lancaster; any application, not the Town Board. It says to the Town of Lancaster which would include the Zoning Board of Appeals. It says the application requests a zoning approval to include, but not limited to blah, blah, blah. I don’t think Mr. Hangauer is out of line here. Yes there will be a time for residents to voice their concerns at a public hearing. But all the boards are part of the entity that makes up the Town.

Hangauer: Last thing. This is not an agreement between the Town of Lancaster and SACL as was pointed out. However, this was an agreement that was brokered between the two parties (airport and SACL) by the town to prevent the kind of thing that looks like it’s coming right now. That was the whole purpose of the agreement and that agreement stipulation is being violated.

Resident Mike Fronczak: A point that I believe needs to be brought up concerning the disregard of the 10 day notification on the Planning Board meeting, people may not be able to speak at the planning board, but they are able to submit written comments and they did not get the opportunity to do so.

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