Town Councilwoman Lacy Maffei is objecting to a determination by the town’s building department di-rector that a proposed concrete batch plant is Light Industry, saying it conflicts with a local law that classi-fies such plants as Heavy Industry.

In a Sept. 28 letter to fellow Town Board members, Maffei asked the board for a written explanation of how Building Department Director Dave Barton’s determination can be reconciled with the law. She wrote that Barton’s classification treats the law “as merely illustrative and effectively optional.”
Maffei wrote that the issue reaches beyond this one application.

“This would mean that the enforceability of every zoning provision and potentially every local law adopt-ed by this [town] board can be undermined,” she wrote. She said other applicants might consider the town code “as ‘guidance’ subject to administrative revision and that the town board’s legislative actions would cease to carry any authority.”

She wrote that Barton’s continued use of the Light Industry classification “improperly” shifts legislative authority away from the Town Board “and into private conversations and case-by-case administrative de-terminations. It deprives the public of the notice, hearing, referral, environmental review, and the voting processes required when zoning laws are enacted or amended.”

Maffei also took issue with comments by Supervisor Stuart Weiss just before the board approved the Heavy Industry definition. She wrote that he “asserted that the examples were ‘merely examples and that classification would turn on scale.’” She said the board did not adopt his comments and they cannot be used to modify the text of the law. She noted that the concrete plant’s attorney relied extensively on the supervisor’s statements in a Sept. 21 request for a new determination.

Maffei wrote that Barton spoke with the applicant’s attorney “at length and that both the Supervisor and the applicant were advancing the position that the project should remain Light Industry.”

Developer Luke Clemente said at two public meetings that he had spoken with town officials about his project and was assured it met the zoning code as Light Industry. When Councilman Mike Petty asked whom he had spoken with, Clemente named only Patti Brooks, a local surveyor who is not a town offi-cial.

Maffei said Barton’s 13-page determination reached the conclusion the applicant sought. She wrote that although it states it did not rely on the supervisor’s statements, “it adopts essentially the same reasoning; that scale and proposed mitigation override the project’s express identification within the Heavy Industry definition.”

She stressed that only the Town Board has the authority to enact and amend the Town Code, and that nei-ther any single member nor Barton “can modify the language approved by the full [town] board.”

Maffei also wrote that Local Law A expressly names concrete batching and ready-mix plants as Heavy Industry, and that Barton drafted the language and discussed its purpose with the board before issuing a determination that treats such plants as Light Industry.

In her letter, Maffei asked the board to:
• Identify the legal authority that allows Barton to classify the project as Light Industry based on proposed mitigation measures.

• Provide copies of every communication among Weiss, Barton, Clemente and his attorney “in any configuration, thereof, concerning the meaning, effect, application, or avoidance of Local Law A, including dates, participants, and subject matter.”

• Identify anyone who drafted or helped draft the Sept. 23 determination, “whether it’s the applicant, his attorney, Supervisor Weiss, Town Counsel, Planning Board Counsel, or [if] any outside at-torney reviewed or commented upon any version before it was issued.”

• Provide evidence of every factual finding concerning the plant’s scale, machinery, outdoor storage, water and electricity consumption, emissions, external impacts, truck traffic and proposed mitiga-tion, including which were independently evaluated and confirmed in writing and which came solely from the applicant.

• Explain how the new determination affects three pending Zoning Board of Appeals appeals chal-lenging Barton’s Light Industry determinations, “and whether they were notified or were allowed to address the new application, the changed project description or new legal reasoning.”

• Say whether a qualified land-use attorney reviewed and approved Barton’s interpretation before it was issued, “and if not, explain why a determination that substantially alters the effect of a newly enacted zoning law was issued without that review.”

Maffei also called for a written independent opinion from a qualified land-use attorney “concerning the validity of this determination, its consistency with Local Law A, and its implications upon the Board’s legislative authority.” Until that review occurs, she contended, the determination should be withdrawn or held in abeyance, and the Planning Board should not rely on it to advance the [developer’s] application.

She said the heart of her letter is preserving the integrity of the town’s lawmaking process.

“Residents must be able to rely upon the language adopted after public notice, public hearings, required referrals, and a recorded vote,” she wrote. She added that if a town law can be converted into non-binding guidance, “the long-range impact will be that the public and the Town Board will cease to have confidence that any local law will be enforced as written.”

Maffei asked that the letter and a complete written response go to the entire Town Board, and that all drafts, records and communications concerning the applicant’s request and the preparation of the Sept. 23 determination be preserved.