NEW SCOTLAND — Resident Charles Shufelt went before the zoning board last week to appeal the denial by the town’s building inspector of his application to run an auto-repair garage. The building he owns on North Road was previously used the same way, his attorney argued, and Shufelt requested a second variance for the same use.

“We’re not seeking to intensify the use,” said Shufelt’s attorney, Jeffery Jamison, of Girvin and Felazzo attorneys in Albany. “This is a very limited operation.”

“You can’t change from one non-conforming use to another non-conforming use,” said the zoning board attorney, Jeffrey Baker.

The accessory building at 173 North Road is currently in a residential agricultural zone, and was previously used as a storage and repair shop for Kleen Resources, an environmental petroleum equipment and repair company, according to the application.

Kleen Resources worked with the state Department of Environmental Conservation decades ago as a spill clean-up contractor, and was locally considered to be responsible for contaminated groundwater near North Road.

Jamison said that Shufelt’s next-door neighbor supplied a letter stating that he had no objection to Shufelt’s use of the garage.

He said that Shufelt keeps two or three vehicles on the lot at one time.

“We’re talking about a building constructed 35 years ago,” Jamison said, noting that no exterior changes are planned. “There is no change in the character of the neighborhood.”

Jamison said that Shufelt purchased the property in 2009 after it had been foreclosed on in 2002, and that the building had been occupied by squatters while it was owned by Albany County.

“This is not unusual to have legal non-conforming uses,” Jamison said.

Zoning board member Lance Moore said that Shufelt could use the building as a residential garage.

“It was not built for a residence — 3,600 square feet is not a residential garage,” Jamison said, noting that the garage is 60 feet by 60 feet.

“I’m not inspecting vehicles,” Shufelt told the board. “I have a license. I can go to New York State and I can open a repair site for trucks.”

Shufelt said that he collects and disposes of fluids according to DEC regulations.

Baker said that he wanted to see documentation and a timeline of use for the site’s former occupiers, and that he would look into issues of squatters’ rights.

He said that Shufelt needs to show “more dollar-and-cent proof of the use of the building, and the lack of it.”

The zoning board set a public hearing on the appeal for Nov. 17.

Shufelt’s application for a new variance at the same site was sent to the planning board for its Nov. 10 meeting, after which the town may set another public hearing for the second request.

Zoning board member Edith Abrams asked Baker to describe the process for the appeal.

“I give you a summary of the law, and you determine the facts,” Baker said. He said that the denial was based on a 365-day absence from the non-conforming use, but that Shufelt and Jamison disagreed with that assessment.

“The question is whether it is a legal non-forming use…a commercial garage is not a legal use of this garage,” Baker said.

“Has this use been abandoned for a year?” he asked. “The burden of proof is on them to show the continuation of use, and that it’s the same use.”

“The property has a history,” Jamison told The Enterprise. “It obviously was in use by squatters. Nobody was receiving taxes on the property. The zoning is questionable. It’s for tax purposes as commercial.”