by Alex Brooks
At the Town court session on April 27, Petersburgh Town Justice Paul Montgomery heard arguments from both sides on the question of whether or not Brian O’Donovan’s shaving mill operation at the back of his gravel pit on Church Hollow Road is exempt from Site Plan review.
The Planning Board was represented by Town Attorney Kevin Engel, and the O’Donovans, Brian and his son Sean, were represented by Troy attorney Ken McGuire.
Judge Montgomery had asked both sides to submit briefs stating their view of the matter by a due date a few weeks ago. McGuire had submitted his on time, but apparently none was submitted on behalf of the Planning Board. Engel presented several documents at this hearing, and McGuire objected that these should have been delivered to him in advance of the proceeding so he could read them and be prepared to respond.
In Petersburgh, logging operations are exempted from the Site Plan Review law. McGuire contends that the shaving mill is part of a logging operation and therefore exempt, but the Planning Board contends that once logs are loaded on a truck and driven over public roads to a processing site, it is no longer an exempt logging use.
Engel presented first, calling Peter Schaaphok as his first witness. After some background on the purpose and purview of the Site Plan Review law passed in 2003, Engel asked Schaaphok to give his opinion on how the law applies to the shaving mill in question. Schaaphok said he thought because the shaving mill is in a fixed location with logs being brought to it on trucks, it cannot be considered part of logging operations, which by their nature move from lot to lot to get the trees. He considered it similar to a saw mill, which processes logs but is not a logging operation.
The language of the law exempts logging operations between the stump and the “point of delivery.” Attorney McGuire asked Schaaphok how we are to know exactly what is the “point of delivery.” It seemed that the language of the law did not clearly define it, although all of the Planning Board members and those who were involved in writing the law agreed that it was intended to mean what is commonly known as the landing or the header, where logs are loaded onto the truck.
Since Schaaphok averred that a fixed location and permanent installation was an important defining factor, McGuire questioned him about whether an operation would be exempt if it was using portable equipment. Schaaphok said it depends on the situation.
Planning Board Chairman Dave Miller, when he was called to testify, said the portability of the equipment makes no difference. He said logging operations are exempted only when they take place on the same site where they were cut, and again, McGuire challenged him to point out where in the language of the law it says that. Miller said the intent is clear if you look at all the definitions and the context of the law, but he was hard pressed to cite chapter and verse.
Miller also pointed out that an earlier shaving mill operated by Mike Smith in Petersburgh had gone through a site plan review and been approved by the Planning Board and that set the precedent for the present situation.
The final witness Engel called was Planning Board member and logger Paul Brundige, who said he considered the point of delivery to be the header. He said of the shaving mill, “I don’t think it has anything to do with logging.”
For his side, McGuire called only one witness, Sean O’Donovan. O’Donovan said he read the law carefully before purchasing the shaving mill, and he said, “In my eyes it clearly stated that I was exempt.” He said it was very common for loggers to cut at one site and “yard” the logs at another site, so logging operations are not normally confined to one site. He also said that a portion of the logs used in his shaving mill come from his own property and that the shaving mill itself is quite portable and can be hitched to a truck at any time and moved to a new location.
Judge Montgomery said that he would review all of the information presented and that he expects to make a ruling at his next court session on June 8.