Lloyd resident Bruce Epperson has filed an appeal with the Zoning Board of Appeals challenging Building Department Director Dave Barton’s determination that a proposed concrete batch plant qualifies as a light industry project.
Epperson said Barton concluded the project met the light industry definition because it would not emit noise, odor or vibration.

“But in Barton’s response he notes the same problem I did: How do you know what is objectionable, and how do you know what level you need to meet to be objectionable?” Epperson said. “He said if it meets our town’s site plan approval, and if it meets a finding of no significant impacts at the Planning Board, those are the standards that are sufficient to meet no objectionable levels of nuisances, which I agree with. But what that means is the determination is not final and is not binding until the Planning Board votes for site plan approval.”

Zoning Board attorney Dave Gordon said Barton’s determination leaves open the possibility that a developer could abandon plans for an enclosed facility after receiving zoning approval.

“Given the building inspector’s determination, if a developer decides to not proceed with site plan approval, he can turn around the entire nature of the project and just bring in trucks and do the activity because it’s been approved as a zoning matter and not even bother with site plan approval,” Gordon said. “That’s just wrong, because the building inspector’s determination specifically contemplated that it was all going to be enclosed.”

Gordon said the core issue is that the town code defines light industry as 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. He said those standards are performance-based and overlap with what the Planning Board and a State Environmental Quality Review Act analysis will separately evaluate.

“So the truth is that the zoning definition here at some level is going to be subject to what the Planning Board finds out at some time,” Gordon said. “So Dave made a determination based on the best information that he had.”

ZBA Chairman John Litts said that if the project fails to meet even one of the code’s criteria — excessive smoke, noise, dust, odor, glare or vibration beyond the property line — it would not be an allowed use. He said the town code’s treatment of concrete plants elsewhere supports classifying the project as light industry.

“We all agree that a concrete plant is light industry because in our code, in the overlay district, it omits it,” Litts said. “So if it’s omitted in an overlay district that’s light industry, then by deductive reasoning, it is an allowed use in a light industry zone without the overlay.”

Gordon countered that the code expressly prohibits concrete plants as high-impact uses within light industry zones covered by the overlay district, and cautioned against extending that logic to other zones.

“The fact that it’s prohibited in the nearby Gateway Zone because it’s a high-impact use does not imply categorically that it’s allowed in the other areas,” Gordon said.

Epperson said he is entitled to a public hearing on his appeal.

“My formal appeal states that section of the code actually is a special permit that avoids the requirements under state statutes for public notice and hearing,” he said. “My second cause of action states that it cre-ates disparate treatment between residents and landowners because of how the application differs between the Walkway Gateway and light industry zones. My third cause is that the director reached his determination that there were not objectionable levels of these nuisances was incorrect and irrational. ... My request is that you overturn the determination of the Building Department that this proposed site plan conforms to the definition of light industrial.”

Litts made a motion to set a public hearing on Epperson’s appeal, but no other ZBA member seconded it. Gordon told the board that setting a hearing is a procedural requirement regardless.

“Not doing so allows Epperson to file an Article 78 and sue the ZBA, and the board puts themselves in a worse situation,” Gordon said.

The board then unanimously approved a public hearing for Sept. 10.

Epperson raised concerns about his treatment before the ZBA in a subsequent appearance before the Town Board.

“When it turned to the scheduling of the public hearing, the vice chair began aggressively engaging me in accusatory questioning,” Epperson said, referring to Vice Chairman Paul Garguilo. “The questions he raised had nothing to do with the concrete batch plant or the points raised in my appeal, but concerned the length of my residency and my home ownership in the town of Lloyd. ... He clearly expressed the position that unless one was a lifelong or at least a long-term resident and landowner in the town of Lloyd, one had no legal rights contained in the laws of the town — these existed for long-term residents and no-body else. It is one thing to be treated rudely in a disagreement because of the ideas you hold. It is another to suffer verbal abuse from a town official because of who you are, which is what happened.”

Epperson asked the Town Board to investigate Garguilo’s conduct and called on him to recuse himself from the upcoming hearing.

“If he refuses to do so, I am asking that the Town Board then terminate his position on the Zoning Board of Appeals,” Epperson said. “Garguilo showed his bias, and it is not possible for me to have a fair public hearing before the Zoning Board of Appeals under these circumstances.”

Garguilo did not return a phone call by deadline seeking comment.