Shelby approves revised overlay district that is 2,000-foot buffer by wildlife refuge
SHELBY – The Town Board unanimously approved a revised Wildlife Refuge Protection Overlay District on Monday following a public hearing where the board heard support and opposition for the district.
The town in June had approved a 3,000-foot buffer north of the Iroquois National Wildlife Refuge. That buffer is now 2,000.
Town Supervisor Merle “Skip” Draper said the town has received more feedback from residents who wanted a reduced buffer. The revised district also includes more uses that were originally prohibited in the district.
Frontier Stone has a state permit to open a mine in Shelby near the refuge. The new overlay district also prohibits mining.
If there wasn’t an overlay district, Frontier wouldn’t have a green light on the project, anyway, Draper said after the hearing. Shelby doesn’t allow mining in a residential/agricultural district. Frontier would need a variance or change in zoning to operate a 215-acre quarry on Fletcher Chapel Road. The land is owned by Zelazny Family Enterprises, LLC – Chester, Jim and Ed Zelazny.
Frontier last month filed an Article 78, a legal challenge against the town with a focus on the overlay district. The company cited many procedural errors by Shelby in passing the overlay district in June. The town failed to get opinions from the Town and County Planning Boards on the district, and also didn’t properly notify neighboring municipalities about the district, according to the lawsuit.
Frontier also says the town didn’t properly account for the positives with the proposed quarry, including supplying water to the refuge during a drought and other mitigation efforts that would help the refuge.
Joe Piccotti, an attorney for Frontier, spoke during the public hearing on Monday. He said the overlay district violates the town zoning law and comprehensive plan.
He said Frontier has worked tirelessly on the project to meet the state’s standards for a mining permit. That application took nine years.
“The DEC’s findings couldn’t be clearer: the mine will not result in a significant negative impact,” Piccotti said during the hearing.
The town is violating the state law by proposing an additional mining setback, he said. He also criticized Shelby for having the public hearing on a Monday at 5 p.m., just a few days after Thanksgiving. That didn’t allow for adequate review from the public, he said.
Dan Spitzer, a land use attorney working for Shelby, didn’t agree that the town had been deficient in the procedural shortcomings cited by Frontier. But rather than duke those issues out in court, Spitzer said it’s easier to redo some of the notifications and send the overlay district to the Planning Boards for their input. (Both the Town and County Planning Boards approved resolutions supporting the revised overlay district.)
Spitzer said a town is well within its right to set restrictions on land use and to pinpoint locations in towns for those restrictions.
Two residents voiced their concern that the town is headed for an expensive legal fight.
“It was inevitable that litigation would be the result of this local law,” said Todd Roberts, a farmer with land in the overlay district. “Is that really the best use of our tax dollars in the Town of Shelby?”
Roberts was also concerned the district would restrict his rights as a farmer and reduce his property values.
The overlay district will prohibit “incompatible” uses with a refuge, such as mining, blasting for non-agricultural purposes, junkyards, telecommunication facilities, airports and airstrips, motor vehicle repair shops that aren’t home businesses and some other uses, according to the town.
Spitzer said the overlay district doesn’t put any restrictions on farming activities. He said keeping away a quarry should improve property values.
“This is about protecting the agricultural land and open space,” Spitzer said.
The overlay district will allow blasting if it is for an agricultural purpose, and will allow motor vehicle repair shops if they are home businesses. The overlay district also has been amended to allow motels/hotels if they have 24 units or less. The amended district will also allow commercial campground and recreational vehicle parks if they do not exceed 10 acres.
Three uses that had been prohibited in the overlay district – agricultural product processing facilities, agricultural product distribution centers, and kennels – have been removed and will be allowed uses in the amended district.
Local resident Thurston Dale chastised the Shelby officials for doing the process “a– backwards.”
“The lawyers will have a picnic,” he said. “I for one don’t want to pay for it.”
Other residents thanked the Town Board for pushing forward with the overlay district and seeking to protect the wildlife refuge and quiet neighborhood for residents near the refuge.
“We all knew the time would come when the Town Board would have to stand strong, listen to their attorneys and their constituents, and do the right thing for the residents of Shelby and for the Wildlife Refuge,” said Karen Jones, a member of Citizens for Shelby Preservation. “In this effort, we wholeheartedly support you, and trust you will continue to protect the valuable asset that is the Iroquois National Wildlife Refuge.”
Brian McCarty of Dunlap Road said a quarry in that area would be very disruptive to residents.
“We’re not just protecting the wildlife refuge,” he said. “We’re protecting the people who live in those areas. I didn’t move out here to be near a quarry.”
The Town Board also approved a negative declaration for the State Environmental Quality Review Act, saying the overlay district would not have a negative impact on the environment. The lack of a SEQRA declaration was one of the issues cited by Frontier in the Article 78.
The SEQRA vote and the establishment of the overlay district were both unanimous votes by Town Supervisor Merle “Skip Draper, and board members Steve Seitz Sr., Dale Stalker, William Bacon and Ken Schaal.
Shelby and Frontier have their first court date for the Article 78 proceeding on Dec. 15 in State Supreme Court.