TOWN OF GRANBY ZONING BOARD OF APPEALS

Meeting Minutes

July 26, 2011

AGENDA :  Gilmore Interpretation Public Hearing

                     Regular Monthly Meeting

ROLL CALL :  Peter Holmes        present - Chairman

                          Paul Hartle        present/recused

                          Peter LeoGrande  present/recused                   

                          Linda Fadden       present

                        Sam Trepasso      present         

PUBLIC HEARING

William Gilmore   – 169 Russell Road, Fulton

Tax Map # 286.00-02-15.01

The Town Attorney, Scott Chatfield, began the Hearing by stating the requested Interpretation by William Gilmore is to appeal the Decision of the Code Enforcement Officer dated April 28, 2011.  The Zoning Board Members are being asked to interpret the definition of what an outdoor recreational use is in relation to his property at 169 Russell Road in the Town of Granby.  He further explains that an Interpretation is an examination of the language of the Ordinance and that any ambiguities encountered should go with a common sense approach.  The ZBA will have 62 days following the close of the Public Hearing in which to render a decision.  The Zoning Board is normally comprised of 5 Members, but 2 Members (Peter LeoGrande and Paul Hartle) have recused themselves due to conflict – they are neighbors to the property in question and are involved in litigation against the Gilmore’s.  Mr. Chatfield extends the option of requesting alternate ZBA members from the Town Board for participation in the application review, in which tonight’s proceedings would be postponed until a determined time.   The remaining 3 Members do form a Quorum which allows for the meeting to proceed.  Attorney Bruce Clark confers with William Gilmore and they agree to proceed with tonight’s meeting.

Bruce Clark is the attorney for the Gilmore’s and begins by stating that his client’s are appealing the decision of David Rearick in regards to Section III.A of the Zoning Ordinance.  The usage chart lists ‘recreation use’ under General Uses permitted with Site Plan Approval from the Planning Board.  Attorney Clark stated that ‘recreational use’ is an overly broad category that can be subject to many interpretations and is therefore why the Gilmore’s are appealing the CEO’s decision.  The fact that none of the other off-road tracks in the Town of Granby (6-8) have required Site Plan Approval further establishes a case that the Gilmore’s are not required to obtain approval for private use of their land.  Attorney Clark presents his first witness:

            Witness #1 – Annie Gilmore – resides at 169 Russell Road.  Mrs. Gilmore stated that her, her husband and their 5 kids have lived on the 13 acre agricultural zoned property since 2005.  The decision to buy the property was to satisfy the boys who rode 4 wheelers and the daughters that rode horses, this property would provide ample room to do both.  The property was a vacant corn field when purchased and the Gilmore’s spoke with the ZEO to determine whether they would be able to use the property in that way.  They were told that the Town regulations didn’t prevent the activity they proposed, but since the Town didn’t have a noise ordinance they should be mindful of times they were noisy.  The property has a single wide mobile home, 3 car garage and a shed with space for horse pastures.  The paths the 4 wheelers rode began to wear when riding, therefore Mr. Gilmore did some grading around the riding areas for safety.  Mrs. Gilmore stated that nothing had been brought onto the property to improve the riding areas.  EXHIBIT #1 (exhibits were identified with number and date and accepted) was presented which was an aerial view of the property from Map Quest.  A large strip/band of trees is pointed out which lines the east side of the riding area.  Mrs. Gilmore further stated that her husband had previously spoken to the neighbors about riding 4 wheelers on the property and no one had any problems, concerns or objections. In 2007 the Gilmore’s attended a Town meeting because of a neighbor complaint and were surprised at the situation that had evolved. Many of the neighbors were very angry and would not discuss the issue with them and were demanding that the Town react. 

EXHIBITS #2a thru f were presented by Mrs. Gilmore – she had researched the area and found 6 other existing race track/courses within only a few miles of their property. They are as follows:

            #2a – Shatrau Drive and Bingham Road

            #2b – Chase Road 

            #2c - County Route 85, near Route 3

            #2d – Hanley Road

            #2e – Ridge Road

            #2f – County Route

Attorney Clark stated that every one of the presented tracks have been in existence and have never been subject to site plan review.

Member Linda Fadden had several questions.  How many people are on the track at one time? Mrs. Gilmore answered that the track isn’t very wide and only 3 at a time are permitted.  What does a race course or track consist of?  She was answered that that is why we are here.  Did you change the topography at all?  Mrs. Gilmore stated that they did not raise the elevation anywhere or build jumps, no machines were brought onto the property to work, a few of the hills (rolly knolls) were rounded off to make it safer.  EXHIBIT #3 was presented consisting of 10 pages.  Annie Gilmore explained that the third time they went to court, April 2009, she had typed a letter which all of the neighbors that are not complainants had signed in support of the track.  Initially friends would also ride on the track but once the complaints began the Gilmore’s have only allowed family members to ride at reasonable hours. In conclusion Mrs. Gilmore again states that the track follows the natural contours of the land.  Chairman Holmes asks the Board for any further questions, they have none for now.  The Hearing is opened for public comments at this time which Chairman Holmes explains that they are to be directed to the Board only.

            BILL FELICITA – Lives at 123 Russell Road and has no issues with 4 wheelers, is in fact looking to purchase one him self.  The problem lies specifically with the Gilmore’s ATV’s which are much louder due to improper mufflers.  He quotes #8 on page 5 of the Zoning Ordinance – To protect the community against unsightly, obtrusive and noisome land uses and operations; he urges the Board to consider this when reviewing the facts.  Mr. Felicita believes that his property has been devalued by this track, he is unable to enjoy the side porch on his home or the outdoors due to the excessive noise and dust created from the ATV’s.  Mr. Felicita offers a photo of the dust which the attorneys and Board agree to accept as EXHIBIT #4.  The dust clouds that form are so thick that you can’t see anything through them and with the prevailing winds to the west it blows the dust right at him.  Mr. Felicita states that Supervisor Ed Williamson has witnessed the dust problem and has seen more than a couple of ATV’s on the track at a time.  The Gilmore’s were allowing ATV’s to enter the property on trucks to practice on the course at the beginning and it was obvious that it wasn’t intended to be a family fun activity.  They competitively race with modified engines and exhausts and they use the same machines to practice in our backyards.  The DEC has been involved because of the environmental impacts and for this reason he believes the Town needs to enforce a site plan review to regulate the activity. 

Member Sam Trepasso asked if the track is visible from his home?  Mr. Felicita said that the back half of the track is during the spring and fall.  Member Linda Fadden asked how many people would be racing when the noise was bad?  Mr. Felicita stated that it was different numbers but not more than 2 or 3, but that it was constant, when one would stop another would start.  Bill Felicita presented his portfolio of dates and observations as EXHIBIT #5 which was accepted by all parties. 

            WILLIAM BARTH – Lives at 3160 County Route 57, Oswego currently but was a neighbor at 175 Russell Road for 3 ½ years.  He has been best friends with William Gilmore since they were 3 years old and over the years they have ridden ATV’s and motorcycles together many times and places.   They were always told to buy there own land if they wanted to ride ATV”s and since Mr Gilmore did just that, they’ve been told that they can’t do what they want to.  The High Performance exhausts which are larger and therefore louder meet NY State Regulations and are used at numerous sanctioned events where ear protection is not mandated.  Mr. Barth stated that he is responsible for many of the ATV’s that were seen entering the property in the first years because he was working on them in the 3 car garage at the homestead.  Once the problems with the neighbors began, he stopped working on the ATV’s at the Gilmore property.  The dust photo that was looked at earlier could have been taken at a number of locations – there are corn fields everywhere.  The track was never organized or ever meant to be, no money was received and practice was the only intent.  There have been no laws broken because there is not a noise ordinance in the Town of Granby.  The Gilmore’s ride ATV’s and horses as a family, the kids are encouraged to participate with the adults in nature with physical activity instead of  watching TV, gaming or partying.  The neighbors have never been willing to negotiate or be neighborly.  The AMA (American Motorcycle Association) was willing to become involved by assisting in design to eliminate the problems that the neighbors were experiencing but without conversation there was no place to go.

Member Linda Fadden asks for an explanation concerning the mufflers.  Mr. Barth states that they use full and complete muffler systems that conform to state regulations.  The normal sound range for ATV’s is 92 -101 decibels, the High Performance are louder but do not require ear protection by the rider.  The machines are races at Thunder Ridge and other sanctioned locales and the spectators are not required to wear ear protection.

Member Linda Fadden asked how long would you ride on a nice day?  Mr. Barth answered all day BUT not consistently, there would be extended breaks.

            GERARD BLAKE – Lives at 5 Sharp Road and the sound is so loud that it can be heard nearly 5 miles away near Dinglehole Road and Lamson Road where he has a tree stand.  It affects their life because they can’t enjoy the outside of their own home.  Supervisor Williamson told them to talk to Mr. Gilmore about it but he isn’t willing to change.

            HELGA BLAKE – Wife of Gerard Blake.  Helga stated that she had initiated the action when Kathy Duncan was Supervisor and when she asked for a noise ordinance to be established in the Town, she was told that nothing could be done.  Mrs. Blake has kept a diary of times the ATV’s were ridden and other information such as an article from the June 2008 Valley News.  She read the article aloud and discussed the Town’s research into noise ordinances and became emotional in her presentation.  Mrs. Blake has been emotionally harmed by this situation in that their peaceful existence in the country was stolen from them by the Gilmore’s and they are forced to stay in their home like a prison to escape the noise.  Mrs. Blake sympathizes with the Gilmore’s rights (she herself has moved to the US from another country to live freely) but feels that their rights shouldn’t override hers.  The difference between a normal ATV and the High Performance ATV’s is HUGE. 

Chairman Holmes asked Helga Blake if she feels that this is a recreational use.  She stated yes.  Up until 2 years ago there were many more ATV’s on the property than has been alleged and they were not family.  Mr. Gilmore built the track for a practice race course for himself and his kids.  He also allowed his friends and his kid’s friends that race to practice on it.  The ZEO has determined it to be a recreational use, Judge Winkworth and the Court ordered the Gilmore’s to comply and have issued fines, the DEC has issued citations because of the dust they’ve witnessed and nothing has changed.  Helga Blake gives the Board Members a pocket folder with documents detailing dates, times and hours that the ATV’s were rode.  The folder is accepted by all to be EXHIBIT #6.  

            MICHELE THOMPSON – Lives at 181 Russell Road for the past 3 years (November 2008) and she can see the track from her home and has seen kids riding many times.  She has never seen the Gilmore’s receive or collect money.  Ms. Thompson doesn’t understand the issue, she feels that you should be able to do what you want on your property.

            DAVID THOMPSON SR. – Father of Michele, lived at 181 Russell Road for past 3 years.  Mr. Thompson believes that the track got out of hand at first and that the Gilmore’s were unaware of the problems.  It is possible that some of the neighbor’s are experiencing louder noise than others because of the existing tree line.  The woods would funnel the music towards certain properties and away from others.  Once the Gilmore’s became aware of the noise issue they calmed it down by not letting anyone but family ride and limited their hours but by then the process had already started. 

            GEORGIANA MILES – Currently resides at 200 Russell Road, formerly a resident at 96 Russell Road.  Ms. Miles doesn’t feel that the course is a race track for competition.  She sees kids riding on it and doesn’t think the noise is any different than the farm equipment her brother uses or the race car engine noises that her other brother has.  In the winter you can hear snowmobiles – there is always noise in the country.

            LINDA SCRIBER – Resides at 17 Shatrau Drive.  Ms. Scriber asked the Board if the reason for the appeal is to determine whether site plan review is required.  Chairman Holmes answered that the Board has to determine the meaning of recreational use and whether the ZEO is correct in his decision to classify this usage as such.  If the ZBA upholds the decision of the ZEO then a Site Plan Review is required, if the Board disagrees with the ZEO then the Gilmore’s can continue the current use of their land.  Ms. Scriber doesn’t think that the Gilmore’s should be made to file a site plan when none of the other tracks had to.  Noise IS part of life in the country.

            BRENDA FRASIER HARTLE – Resides at 31 Sharp Road.  The issue at hand has nothing to do with regular ATV’s.  The Gilmore’s ATV’s are High Performance and extremely loud.  The quality of life for the people adversely affected by the noise and dust has decreased.  The outdoor patios, porches, decks and barbecues haven’t been used and family gatherings occur elsewhere because of not knowing when they will begin or end.  The Codes Office in Granby is complaint driven which explains why none of the other tracks identified underwent any process with the Town.  If those tracks were using HP ATV’s then maybe they would have complained as well.  EXHIBIT # 7 was presented and accepted, 2 photos SDG live link.  The photo was taken from 3/10 of a mile away and around the corner where the Hartle’s have experienced the noise and dust. There is another track north of the house and they have never been as loud therefore they’ve never complained.  EXHIBIT # 8 was presented and accepted, a folder of papers detailing times and dates for the ATV’s rode from Brenda Frasier Hartle.  Mrs. Hartle asks for the Board to listen again to Helga Blake and the threat that she received.

            HELGA BLAKE – Mrs. Blake told the Board that on a day when she had seen 4 ATV’s riding on the track she went to the Gilmore’s house to speak with them.  She was met with hostility and told to leave, the ATV’s circled her car and told her they would hurt her.  She felt threatened and is still afraid of what could happen.

            BRENDA SHATRAU – Resides at 11 Shatrau Drive.  The issue of the property being a recreational use has not yet been established. What is the definition and if they are not making money then its their own private use.

Member Sam Trepasso asked if the track was to AMA standards.  Mr. Gilmore stated that the track is only ¼ mile in length and a race track for AMA racing is 2 miles.  Member Trepasso states that he believes this is really a civil issue not a zoning issue.  With no further comments from the Board or audience, Chairman Holmes closes the Public Hearing at 9:07 pm.

Attorney Bruce Clark thanked all who attended for the civil behavior displayed for such a controversial case and issue.  The next meeting of the ZBA is August 23^rd at 7:00 pm and the ZBA will continue deliberations at that meeting.  Anyone who would like to submit an additional written opinion may do so until August 2^nd and Attorney Clark will submit written discussion of appeal by August 9^th.  Secretary will send copies of any additional correspondence to attorney Clark. Member Fadden asks the Gilmore’s if she may come to the property, she is given Annie Gilmore’s phone number to set up future date and time for visit.              

REGULAR MONTHLY MEETING

The Regular Monthly meeting was called to order at 9:14 pm.

Members Paul Hartle and Peter Leogrande rejoin the Board for general business.The training courses offered have approaching deadlines – sign up soon.

A motion to approve the  meeting minutes for June 28, 2011 was moved by Member Linda Fadden and seconded by Member Peter LeoGrande, all were in favor, motion carried.

Members Hartle and LeoGrande exit the meeting at this time so the remaining Members can discuss the Gilmore request.

GILMORE INTERPRETATION REQUEST - Member Sam Trepasso states that the High Performance machines are the biggest issue in this case and without a noise ordinance what can they do.  Chairman Holmes agrees and stated that the dust issue was solved by the DEC and will be cited again in the future if needed.  The reasoning for combining ‘non-profit and recreational use’ in the use chart should be considered in determining the intent for this line.  All the Members commented that all properties are devaluing for various reasons – is this a legitimate cause.

With no other business before the Board a motion to adjourn at 10:08 pm was moved by Member Sam Trepasso and seconded by Member Linda Fadden, all were in favor, motion carried.

Respectfully submitted by:

Lisa Somers, ZBA secretary