NEW SCOTLAND — The farm stand at odds with the town over violations of New Scotland’s zoning code, scored a partial victory this week.

The town’s zoning board of appeals said that it had been provided with sufficient evidence by the owner to show that the importing, processing, and sale of firewood on the site has been taking place since before the town code went into effect, allowing the sale of firewood to continue unabated. 

In May, Ann Neander was cited, and her farm stand at 64 Normanskill Road 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.

During Tuesday’s meeting, the zoning board found there wasn’t sufficient evidence to support the claim that the sale of cut flowers, vegetables, and chickens eggs were pre-existing non-conforming uses on the site, and upheld Building Inspector Jeremy Cramer’s previous determination. 

Board Chairman Jeffrey Baker then encouraged the applicant to seek a special-use permit from the town’s planning board to be able to sell the flowers, vegetables, and eggs. 

Neander told The Enterprise she plans to do that. However, her application won’t be before the planning board at its Sept. 1 meeting, Cramer told The Enterprise on Wednesday. 

A public hearing on Neander’s application took place during the Aug. 25 meeting and about a dozen people spoke — all fervently in favor of the farm stand. 

Neander vindicated

Neander had gone before the town’s planning board in November 2018, seeking a special-use permit that, at the time, would have brought into compliance two of the four violations that shut down her farm stand in May. But she told The Enterprise in July that the board neither approved nor denied the permit; it just said it would get back in touch with her about it — a claim the town disputed at the time. 

Cramer told The Enterprise in July that the town “gave [Neander] some things we needed back and we never heard back from [her].” Neander strongly disputed the claim, stating, “[The planning board] said they were going to discuss it and get back to us,” which the board never did, according to Neander. 

At the Aug. 25 planning board meeting, Cramer said that, when Neander went to the planning board meeting in November 2018, multiple board members had raised questions about the firewood. And it was requested that he and board attorney Crystal Peck go back and revisit the issue, “to see if it fell within the Farming Activity, Personal special-use permit” that was applied for, Cramer said.

“There was some time in review and looking at different things from DEC, which took some time,” Cramer said of the state’s Department of Environmental Conservation, but the application did eventually make its way back to the town. Cramer had thought he told his code-enforcement officer to reach back out to Neander, he said. 

But, at the same time, the application was filed in November. “It was heading into winter time, and obviously the operation wasn’t in operation, per se, the way that it was,” Cramer said.

Unfortunately, he said, the building department had gotten busy, and had been dealing with other things at the time. The department hadn’t had a chance to get back to the Donatos — Neander’s family — until it received an additional complaint about the property, around April of this year, Cramer said.

Then in May, Cramer was notified that the parcel at 64 Normanskill Road had been bringing in flowers from off-site to be sold. At that time, he told his code-enforcement officer, “Please go over there and let them know that I want to continue with a special-use permit application; we need to get it sorted out and figure it out.” 

Cramer also vindicated 

Peck, the attorney for New Scotland’s zoning and planning boards, previously explained to The Enterprise, “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.”

Board member Erin Casey pointed out that the evidence on which the board was basing its Aug. 26 decision was not the same evidence Cramer had when he made his original determination on the firewood, and she credited Jeremy Manning, Neander’s lawyer, for providing the affidavits with information that showed the firewood had been a pre-existing, non-conforming use. 

According to Peck, “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.”

Eight sworn affidavits were submitted to the board to support that firewood had been continuously sold at the site since at least 1945, according to one of the affidavits.

‘You guys work for us’

Laura Benson was the first person to speak during the virtual public hearing, and she said she could understand if the farmstand began to sell “housewares, or machinery, or something like that.” But firewood is about as natural a product as you can get — so she didn’t understand why something as natural as firewood was not allowed to be sold but the other items were. 

Baker immediately stepped in to clarify the issue: 

“This is not, by any means, certainly by this board, a judgment one way or another on the benefits of fireworks versus flowers versus vegetables versus chicken,” he said, “It’s just the way the zoning code is written: Where it makes distinctions for products that were grown on the farm versus products that are imported from off the farm and how [those products] are used there, and that address the permitted uses in the [zoning district].

“And for those of you less familiar with land-use law, when we regulate the uses on a particular property, while it is some derogation, or hurts the property rights somewhat of the person who owns that property and limits it, it is designed also to protect the property rights of the neighbors and the surrounding area. 

“And these are determinations that have been made by the town board over the years as it has adopted the zoning code which creates the various uses and the rules that are there. 

“Now many of them may be archaic and don’t necessarily make a lot of sense, [but] we’re somewhat forced to deal with them. And on this point, we’re simply giving a review of an interpretation and determination of the building inspector, it is not an application for a variance — which involves different standards of review and different issues.

“...It more has to do with how the code is written and very much as a factor in the size of the property and the issues if you have an unfettered use of a particular commercial type activity and know its agricultural base can have impacts on the surrounding area. So that’s why we have to look at it.”

Lisa Mattot was having cancer treatments so she couldn’t be at the Donato-Neander farm with the other 15 to 20 people who had gathered in support of the family and farm stand. 

Mattot said that she recently lost her husband, and that “this family went beyond the call of community service” to help her; someone would haul and stack the firewood for her as well as bring her produce. 

“I’m just so upset that it could all be taken away when they are there for me, and the community,” she said. 

Michael Blase of Guilderland said his family had purchased firewood and produce from the farmstand for about 15 years: 

“I have pretty much one thing to say, which is in regard to the zoning board of appeals: [I’m] not exactly sure who said that we have legal obligations, I think everybody in the community understands that, but I think everybody in the community — and all of you also understand — that those obligations come from the community, and the wants and needs of the community. And your community’s clearly speaking, loud and clear.

“So if you want to focus on statutes and gobbledygook from 1950, and run your town that way, I think you’ll know you guys probably all know what the natural result of that is — some of you care and some of you don’t. 

“But your obligation is to the community. This is the United States of America by the way, by the people, for the people; we are the people — you guys work for us.

“The orders from your boss, with all due respect, is pretty clear here. So I hope you guys make the right decision…”

Blase was speaking after and in response to Baker, who again stepped in during the hearing. This time after about seven public comments were made, several of which were emotional pleas, bordering on something a little harsher, made by speakers claiming that the zoning board was trying to take away business from the Donato-Neander family, or that the board was trying to “go after” the family and their farm.

Baker explained there was no malice toward the family, the board has legal obligations — it was a matter of balancing interests. 

“Believe me, everyone has legitimate rights on these things. And you make very valid points, I’m not questioning it. But believe me, there is no malice associated with this. It’s that we’re balancing competing interests, and, in this case, just applying the law and the facts,” Baker said.