The Town Board on Nov. 2 filed an appeal with the Zoning Board of Appeals challenging three determinations by Building Department Director Dave Barton that a proposed concrete batch plant at 3260 Route 9W is a light industry use. The project is under review by the Planning Board.

In the appeal, Supervisor Stu Weiss wrote that the town code presumes concrete batching plants, including ready-mix plants and raw concrete manufacturing, are heavy industry.

“At the time of the director’s determination(s), the information filed with the town for making a determination that the project was classifiable as anything other than heavy industry did not exist,” Weiss wrote. “Accordingly, the ZBA has no option but to reverse the determination(s) of the director.”

The appeal says Barton’s determinations are inconsistent with the intent and purpose of Local Law A-2026, which defines heavy industry.

“These determination(s) are an abuse of his authority and an attempt to usurp the authority of the town board,” the appeal states. “Furthermore, the use table does not list concrete plants as permitted or special uses within the Light Industrial Zone. All uses not listed in the table are specifically prohibited.”

The appeal also states the Town Board has weighed the potential impacts of industrial uses, including chemical manufacturing, large-scale vehicle salvage, concrete batch plants and the manufacture of products containing concrete. It cites dust, smoke, vibration, noise, hazardous materials, vehicle traffic and other factors that affect the town and surrounding neighborhoods, particularly residential areas.

The filing further states that Barton “ignored the uses listed in the definition and chose to consider impacts.” It says he then “arbitrarily found the impacts mitigated by enclosure in a building and essentially rendered both the law and the zoning moot.”

“That is clearly not the intent of zoning laws, nor is it the intent of Local Law A-2026,” the filing states. “The determination(s) are contrary to the town zoning and Local Law A-2026. Accordingly, we the Town Board respectfully request that the ZBA grant our appeal and reverse the determination(s).”

State and town law
The Town Board says state and town laws support its authority.

State Town Law Section 138 does not allow a building inspector to override laws approved by the town board, the appeal states. The inspector’s role is to enforce the laws and codes as adopted, not to change them.

The appeal also cites Section 267-a of state Town Law, which it says stays all proceedings in furtherance of a determination when a party appeals a zoning determination made by an administrative official, often the building director or code enforcement officer. The appeal says that would halt the Planning Board’s review until the appeal is resolved.

The Town Board’s appeal is the third on the matter that the Zoning Board will decide.