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Seasonal resident again in middle of Cape Vincent zoning dispute

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CAPE VINCENT — Mary C. Grogan just wants to enjoy weekends at her seasonal residence on County Route 7 near the St. Lawrence River.

But for the second time in five years, she finds herself unwittingly embroiled in a zoning dispute involving neighboring property owned by Roger D. Alexander, operator of Lazy Acres Mobile Home Park.

“I love the Thousand Islands,” said Mrs. Grogan from her home near Binghamton. “It is my place to go on the weekends and relax, and this puts a little damper on that. I’m always wondering what’s coming next.”

In 2009, Mr. Alexander received a permit to construct a 92-foot personal wind turbine next to Mrs. Grogan’s property. After spending $80,000 on the project, the town’s Zoning Board of Appeals revoked the permit after hearing concerns from Mrs. Grogan and others. Mr. Alexander took the matter to Supreme Court, where Judge Hugh A. Gilbert ruled the permit had been improperly issued.

The ZBA could have ordered Mr. Alexander to take the turbine down, but Mr. Alexander rectified the situation by purchasing an adjacent parcel that included a house. By shifting the lot line on the parcel to include the house, he was issued an “accessory use” permit allowing the turbine. However, the turbine malfunctioned in high winds in 2011 and has not been operational since.

Now, Mr. Alexander is proposing constructing two 720-square-foot solar panel arrays on the site, with the idea that he will sell the power generated to National Grid and receive credit on power bills for his mobile home park. In July 2012, he was issued a permit for the project from former Zoning Enforcement Officer Edward P. Bender and work on the electrical connections for the project has begun, although the panels have not been erected. Mr. Alexander could not be reached for comment.

A problem started, according to former Planning Board Chairman Richard H. MacSherry, when Mr. Bender checked both the “residential” and “commercial” intended use boxes on the permit application. Mr. MacSherry said at the time the project was proposed, Mr. Bender was operating under assumption that Mr. Alexander was going to power the mobile home park with the solar panels, making it arguably a residential project. However, as the concept has progressed, Mr. MacSherry, who is still a Planning Board member, said the consensus among the board is that it is a commercial project, an assessment with which Mr. Alexander agrees.

Because the project is commercial, a site plan review is required under the town’s zoning law, but none took place. A site plan review would have triggered notification to contiguous property owners, including Mrs. Grogan, of the proposed project as early as July 2012. Instead, she only learned of the project this past July when informed by Arthur D. Pundt, a friend who is now advising her on the matter. Mr. MacSherry said the Planning Board learned of the project in June after Mr. Alexander came before the board to request a site plan review.

“That’s the first I’d heard of it,” Mr. MacSherry said. “I did not know that he already had a permit. I thought this was a brand new issue, at least brand new for the Planning Board.”

Complicating matters is that Mr. Alexander was initially issued his permit July 18, 2012; twelve days later a new town zoning law went into effect that bars ground-mounted commercial solar arrays of the size Mr. Alexander proposed in a Riverfront zoning district, in which the property is located. The old zoning law also said permits had to be renewed within six months of issuance, while the new law provides for a year for renewal.

Mr. MacSherry said a relative of Mr. Alexander approached current Zoning Enforcement Officer James G. Millington Jr. in January to ask about the six-month renewal but was apparently told that Mr. Alexander had a year, or until July, to obtain the renewal. Mr. Millington declined comment on the matter. Mr. Alexander appeared before the Planning Board in July, and it was agreed that a site-plan review would be conducted and affected neighbors, including Mrs. Grogan, were notified of a public hearing on the matter scheduled for August. However, unbeknownst to the Planning Board, Mr. Millington renewed Mr. Alexander’s permit in July and, once he received the extension, the Planning Board lacked the authority to call for a site-plan review and the planned public hearing was canceled.

Mr. Pundt points to a problem with the extended permit: neither the commercial nor the residential box is checked as a proposed use. In fact, no box is checked. Mr. Pundt maintains that the first permit was improperly issued because both boxes were checked, while the extension was improperly issued because neither box was checked.

“When this came before the Planning Board, somebody should have caught the fact that this was not allowed in the River district since this array is too big,” Mr. Pundt said. “The problem is, if you’re going to do this under the old law, there was no site-plan review and the original permit expired in January.”

A question also remains as to when Mr. Alexander actually started work on the project, although Mr. MacSherry has visited the site and says he was “stunned” by the amount of equipment Mr. Alexander has installed, estimating he has already invested about $80,000 on the project.

“The term vested popped out at me. He wasn’t just all talk,” Mr. MacSherry said.

Mr. MacSherry said he has “been castigated for weeks” for an offhand remark he made at a Planning Board meeting suggesting that solar array would be in a gully off Route 12E, meaning it would not block anyone’s view of the river, a consideration made during the formation of the new zoning law, which encourages solar power production.

Mr. Pundt, who has blogged extensively on the zoning issue, contends that the town must interpret its zoning law literally, raising the specter that lawyers working for commercial wind turbine projects would try to take advantage of any loopholes in the law.

“The entire fate of our community hangs on this law and this is what we end up with?” Mr. Pundt said.

Mrs. Grogan said she is unsure of her next step, but said she is considering legal action. She said she wrote a letter with concerns to the Zoning Board of Appeals, but was told that she needs to file a formal request to have the matter brought before the board, as well as pay a $200 fee.

“Why can’t they protect my property? Why do I have to take money out of my pocket to do this?” Mrs. Grogan said.

Mr. MacSherry said the ZBA is taking a proactive approach to the issue and, even though Mrs. Grogan has not formally asked the board to review the matter, it is already doing so. He said he is also hopeful that Mrs. Grogan and Mr. Alexander can reach some kind of agreement, possibly involving the removal of the nonfunctioning wind turbine in exchange for the less-visible solar array.

“I would like to see a negotiated settlement between the parties that does not involve the town,” he said. “But in any event, we’re going to get right on this.”

Town Supervisor Urban C. Hirschey said that the Town Council has tried to stay abreast of the situation. He referred to pages 11 and 55 of the new zoning ordinance as proof the proposed solar array is allowed. Confounding the situation, he said, is the likely premature granting of the building permit. How to rectify that is something the Planning Board and Zoning Board of Appeals is working on.

“The truth is, we don’t have all the facts. My guess is we’ll have this ironed out in a week, although it may go to the courts because it may take a court to untangle this situation,” Mr. Hirschey said.

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