- By Dan Veaner
- News
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But town officials have been stymied by a series of confusing and conflicting laws and regulations, some of which are out of their control. Lansing Code Enforcement Officer Dick Platt says he must have the facts before he can issue a ticket. And the facts in this case depend on who you talk to.
Bob Foster (right) has been selling vegetables at Route 34
and Brickyard Road for about 20 years.
Foster says he has been setting up his stand in that spot for 20 years. Retired and living in Hartford, NY, he drives into Ithaca to purchase his produce, most of which comes from Scranton, PA. Then six days per week during the season he drives to his spot in a little triangle of land between Brickyard Road and Ridge Road (State road 34B) and sets up tables around his truck to display the produce. "I've been a farmer for years," he says. "I was selling sweet corn -- that's how I got into it."
Foster adds that he has the right to sell vegetables there because he is a veteran. "The state owns the property," he says. "Zoning doesn't have anything to do with this because I am a veteran. A veteran has a right to set on any state property."
Reynolds expressed concern that the Town isn't acting on his complaint, but Town officials say they are concerned if a non-resident is taking business away from a resident, especially when breaking the law. And it is unclear whether any laws are being broken.
"On complaints like this the town has a responsibility to look into it and see what the legal issues are," says Supervisor Scott Pinney. "In this particular case I think there are a couple of options. There might be a grandfather right, and there might be a legal right because of the veterans being allowed on the state right of way. We are currently researching that and will precede."
A number of questions have been raised, and Platt says he has to answer all of them before acting on the complaint, in indeed he has the authority to do so. Aside from the zoning violation, Reynolds says that despite the fact that Foster was selling on the spot before the regulations went into effect, he couldn't be grandfathered because he hasn't been there for every single season since the ordinance was passed. He also questions Foster's hygienic practices, and says he harasses a female neighbor who lives across the street.
Reynolds is clearly within his rights to sell fruit from his home. Aside from grandfathering, his home and orchard are in an R3 zone (Residential - Mixed Use) that allows the activity. Even though the two businesses are literally yards away, the two zones border along Brickyard Road. "Don't tell me to load my truck up and drive down there," he says. "I don't need to when I'm up the road. Everything I've got here is refrigerated, in under cover, taken care of, washed, cleaned."
Platt says that the zoning is clear that roadside stands are not allowed in the R2 district unless the property owner gets a variance from the town's Zoning Board of Appeals. But Reynolds and town officials are not clear on who owns the land, siting conflicting land surveys. Foster is certain the land is owned by the NYS Department of Transportation (DOT). "This is the old road," he says of the spot he is in, which used to be Wildmon Road before the intersection was reconfigured to make room for 34B. "When they put the new road in, the people who own the property across the road owned it. The barn sat right in the middle of the highway. The state bought all this property, but reserved the well for the house."
Josh Ribakove, spokesman for the NYS Department of Transportation Central New York region, says that the DOT does own some land in the area, though more research is needed to absolutely confirm that spot is it. Platt says that in the case of confirmed zoning violations the owner is cited, and that typically the owner asks the vendor to leave, sometimes getting the county Sheriff to help remove him. But Krogh notes that the town could ticket Foster directly if there is a violation. He also says that if town law is not superseded by a state law, and if it could be proved that there was a break in using the spot, typically a full year in which it was not used, the zoning law would apply.
If, if, if...
"You can't discriminate against Veterans on the basis of their military status, just as you can't discriminate on the basis of race, ethnicity, color, whatever," says Lansing Town Attorney Guy Krogh. "But that is a far cry from saying that they can ignore the law. If the zoning applies equally to everyone, whether they are veterans or non-veterans, he doesn't enjoy a protected status merely by virtue of being a veteran. It it were on the order of 'everyone but veterans can do this here,' he might have a real issue."
That raises the question of whether state law supersedes town law. "The law is a wonderfully gray area," Krogh says. "In some cases the state will defer to local regulation, but in other cases they do not need to because of what is considered supremacy. The town couldn't pass a law regulating all state uses of land."
As for grandfather rights, the right to do something on a parcel that was allowed before a law was passed to prevent it, Krogh says that while they are frowned upon, they can apply to this situation. While Reynolds says Foster skipped a year or two when he relocated to Auburn Road, and a spot near the Pit Stop, Foster says he had two stands at that time. "I had both of them going at the same time," he says. "Then the woman (who ran the second stand) died, so we had to do something else."
Platt notes that the town can't respond to all of Reynolds' charges because only the zoning issue is under the town's jurisdiction. He says that the State's Department of Ag & markets or possibly the Tompkins County Health department would have jurisdiction over sanitary issues. And if there is harassment it would be under the jurisdiction of the Tompkins County Sheriff Department. What is clear is that there has been some enmity between the two parties for some time, and the vagaries of the law have contributed.
Foster may be within his right to locate on the spot. "Veterans are indeed permitted to set up as peddlers on state land, on the right of way by the highway, DOT's Ribakove says. "I don't know of anything that says that town zoning would supersede that."
That law is Section 32 of the General Business Law, which states, "Every honorably discharged member of the armed forces of the United States, who is a resident of this state and a veteran of any war, or who shall have served in the armed forces of the United States overseas, and the surviving spouse of any such veteran, if a resident of the state, shall have the right to hawk, peddle, vend and sell goods, wares or merchandise or solicit trade upon the streets and highways within the county of his or her residence, as the case may be, or if such county is embraced wholly by a city, within such city, by procuring a license for that purpose to be issued as herein provided."
While the state law allows municipalities to require a permit, Lansing does not have that requirement. Some questions remain, such as the phrase 'within the county of his or her residence,' the question of who is right is still somewhat hazy. Foster reportedly lives outside Tompkins County. But that legal haze may be enough to prevent the town from taking action.
Pinney ran for office on a platform of making Lansing more friendly to businessmen. "I feel that we need to support local businessmen as much of possible," he says. "Obviously that means in the Town of Lansing first, but if somebody is running a business in the county or in New York State, that's local in a sense, also. As much as we can help those people, I think it helps us all."
From another point of view, many residents have been happy to buy from Foster for a long time. When he scouted for a site years ago he said this spot was empty. "There wasn't anything here 20 years ago," he says. "I saw an opportunity and I took it."
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