Sweet Peet plan upheld by ZBA

No outside input was allowed on Dec. 28, a regular ZBA meeting. Public comment is only allowed at public hearings.

It took less than 20 minutes to reach a motion and take a polled vote.

First, Chair Joanne Wojtusiak, with board attorney Perley Grimes at her side, carefully laid out the procedural framework.

"Despite all the public comments, the expert testimony, the passionate and moving statements and the piles of papers that we have read," Wojtusiak said, "there’s really only this one question that we must answer, and we must do it by looking at Cornwall’s own zoning regulations."

That question was whether or not the Sweet Peet operation was an agricultural use, or accessory to an agricultural use.

Board members were asked to decide if Zoning Enforcement Officer Karen Nelson had done the right thing when she issued a zoning permit based on her belief that converting animal byproducts into mulch is an agricultural and/or accessory use.

Wojtusiak cautioned the board that "it is totally inappropriate, and I know you all know this, for this board to consider who owns the property, or even whether they have been good stewards of the land."

Prior to the discussion, board members Ginny Potter and Fred Scoville both recused themselves, as they had done during the public hearing. Regular members and alternates seated were Jim Levy, Priscilla Miller, Nancy Calhoun, Ann Schillinger, Betty Spence and Wojtusiak. Alternate Don Bardot was allowed to comment as an expert on statutory language interpretation, but not to vote later on.

It was noted that state statutes allow the towns to decide for themselves what is and isn’t "agriculture." Bardot noted that Cornwall regulations, while specific in many other area, are very broad in what they define as "agriculture."

"It was purposely done to allow a governing body, ZBA in this case, to interpret," Bardot said. "Planning and Zoning has wide latitude in interpreting these regulations. They’re not unfettered, but it’s very wide. We really shouldn’t be overturning their decision unless we find that they have acted illegally or arbitrarily, and I myself didn’t find that."

Grimes was asked to expand on the opinion the Planning and Zoning Commission had received from its attorney, Steven Byrnes, last spring.

Byrnes had advised that, in Connecticut, compost is generally not considered agriculture because it does not involve a living thing.

Grimes noted first that Byrne’s was expressing an opinion. Ssecond Byrnes never said it was illegal, under Cornwall regulations, to define composting as agriculture.

Grimes also said Byrnes did not look further into the regulations to determine "what other things farming could be." A letter sent by Byrnes a few weeks later advised that composting could be defined as an accessory use to an agricultural operation.

Each board member was given a chance to weigh in, and each one listed reasons why he or she believes the production of Sweet Peet is an allowed, and even a desirable use of the Cream Hill property.

They all noted that mulch can be defined as a commodity, like maple syrup or honey, that is a farm product even though it is not raised, or grown, or alive.

They cited the current Town Plan of Conservation and Development , which says it is a priority here to preserve farming of all types, including the production of horticultural products.

Wojtusiak cautioned against references to the revised town plan, which has not yet been approved. But she said the current town plan says much the same thing, that agricultural uses may include "activities incidental to farming," which she believes describes Sweet Peet.

She also noted the current town plan states farming uses are permitted in any zone in town, as long as the use complies with setback requirements. The Cream Hill plan does meet those requirements.

After voting unanimously to "affirm and approve" the issuance of the zoning permit, the board members repeated their list of reasons and vote in favor of those reasons as a "collective opinion."

The board members also granted a request from the appealing parties to delay publicatoin of the decision until Jan. 4. That opens a 15-day window in which an appeal of the decision may be filed.

Zoning Enforcement Officer Nelson told The Journal the state Department of Environmental Protection (DEP) has long been looking at ways to regulate waste manure. In North Canaan, dairy farmers formed a cooperative to deal with waste management in light of existing and pending regulations.

Currently, many horse farms dump manure and contaminated bedding on remote areas of their property. It is even legal, at this point, to dump the waste in wetlands.

But as property sizes shrink and regulations become more restrictive, disposal will become a bigger issue. The issue is complicated by the decline of small dairy farms in the state — and the increase in horse farms.

At the Northwestern Connecticut Council of Governments, Executive Director Dan McGuiness confirmed that towns need to make decisions based on their own regulations, not on state statute or case law.

Cornwall’s decision should not set a precedent for other towns, McGuiness said. Regionally speaking, he said the question of how to dispose of horse manure is not a problem the council has addressed.