Attorney Johnathan Clark, representing the environmental organization Scenic Hudson, has filed an appeal with the Lloyd Zoning Board challenging a Light Industrial determination issued by Code Enforcement Officer Dave Barton for a proposed concrete batch plant at 3260 Route 9W. It is the third challenge to Barton’s determination to come before the Zoning Board.

In the appeal, Clark wrote that the enactment of Local Law A of 2026, which added a new “Heavy Industry” use category, “constitutes a material change in the zoning ordinance such that the initial determination no longer represents a complete analysis of all provisions applicable to the Concrete Batch Plant.”

Clark noted that Scenic Hudson owns property adjacent to the proposed site. As “an aggrieved party,” he wrote, Scenic Hudson is authorized under Town Law § 267-a(4) to appeal a Code Enforcement Officer’s determination to the Zoning Board, and the letter serves as formal notice of that appeal under Town Law § 267-a(5)(b).

Clark is asking the Zoning Board to require Barton to address whether a concrete batch plant is a permit-ted use in the Light Industrial District in light of the new Heavy Industry definition, and to schedule a hearing on the appeal following adequate public notice under Town Law § 267-a(7).

Clark also pointed to code section 100-53(F), which requires site plan applications to receive a compliance determination from Barton before being forwarded to the Planning Board for review. He said Barton did not issue his determination at the start of the process, but instead did so months after the Planning Board’s site plan review was already underway.

According to Clark, Barton based his determination in part on the code’s Light Industry definition under § 100-8, which broadly covers the “manufacture, assembly, treatment, processing, or packaging of products that does not emit objectionable levels of smoke, noise, dust, odor, glare, or vibration beyond the property boundaries.” Clark said Barton also relied on the applicant’s representations regarding the plant’s operations, and that any deviation from those representations “shall void this determination and require re-review by the Department.”

Clark said the Town Board, during the course of this process, approved a local law defining Heavy Industry as “a use engaged in the basic provisioning manufacturing and processing of materials or products predominately from extracted or raw natural resources, or a use engaged in storage of, or manufacturing processes using, hazardous or explosive materials.” The law accounts for a project’s size and scale, external impacts, detectable vibrations beyond the property line, air emissions, infrastructure needs, and the effect of heavy multi-axle freight traffic on local roads.

Clark said the law was intended to promote public health, welfare and safety, and “to ensure that uses within the town are appropriately located in relation to each other and consistent with the community character of the town.” He added that the town’s 2024 Comprehensive Plan update, relevant to Heavy Industry uses with greater potential offsite impacts, suggested the town “should consider providing appropriate land use transitioning between districts to adequately protect residential neighborhoods and define gateways to Lloyd.”

Clark also cited established legal precedent, writing that zoning laws “must generally be applied as they exist at the time a decision on the law is rendered,” meaning a pending site plan application can become subject to a revised zoning ordinance adopted while the application is under review.

Clark argued that the Planning Board is required to approve or deny the application based on the zoning law currently in effect, which now includes the Heavy Industry definition. Because the law has materially changed, he wrote, the conclusions of Barton’s July 8 determination “are no longer supported by a com-plete evaluation of the application’s accordance with the Town’s zoning ordinance,” and the application’s compliance “is lacking... Heavy Industry, as newly defined, is not a permitted use within the Light Indus-try district.”