Both sides of the disagreement over where, when and how Cazenovia College may build a six-foot-high fence around its athletic complex perimeter have been heard, and the village zoning board of appeals will issue its decision in about two weeks.

The issue, which has been ongoing since summer 2012, concerns whether or not the village zoning enforcement officer (ZEO) properly denied the college’s permit application to build the fence, which the ZEO determined was part of the 2011-12 turf field project, not an independent project and therefore requires further site plan review. The issue of the fence is larger than the zoning disagreement, however, as numerous neighbors are decrying the plan as not only invasive to their property values and quality of life, but also an extension of the turf field project that the college previously promised it would not do — and possibly the first step of many to expand the turf field to a stadium-like appearance and status.

“We are just another landowner. We have the right to prevent … trespassers,” said Kevin M. Bernstein, attorney for the college, at a March 26 ZBA public hearing on the fence issue.

Bernstein, of the law firm Bond, Schoeneck & King, presented the college’s argument that the fence — which would be approximately 1,420 linear feet spanning the eastern, northern and western edges of the college’s Schneeweiss Athletic Complex beginning at the tennis courts and ending at the upper parking lot — is not part of the original turf field plan but is now needed to prevent trespassers on the $1 million field and protect the college’s investment.

“Any property owner should have a way to protect their property, and that’s what we’re trying to do here,” Bernstein told the board.

The turf field was added by the college in 2011-12 to create a drainage mitigation system on the field behind the college athletic house, and to put an artificial turf field in place of the grass field previously there to allow normal athletic seasonal use for the college’s sports teams. During village planning board hearings on the turf field project in 2011, Cazenovia College President Mark Tierno said the project was only for a turf field and nothing more. There would be no fencing or plantings, no field lighting, no stadium seating, no roads or parking lots and “there is no larger agenda here other than this field,” Tierno said at that time.

The village planning board approved the field project in August 2011. The new Christakos Field was completed in December 2011, inaugurated for play in spring 2012 and officially dedicated on Sept. 29.

According to letters between the college and the village, all contained in the village ZBA files, in late July 2012, the college sought a building permit for a six-foot-tall, chain-link perimeter fence around the athletic complex. Village ZEO William Carr told the college it must submit an amended site plan for the turf field project since the fence was part of that overall project. The college disagreed with Carr’s assessment and did not submit an amended site plan application.

On Aug. 10, the college president sent a letter to abutting neighbors informing them of the fence plan and on Sept. 4 convened a meeting with those neighbors to describe and show the location of the proposed fence. Some neighbors objected to the plan at that time.

On Sept. 12, the college withdrew its July building permit application. The application was resubmitted in early October with a detailed explanation that the fence was needed to prevent trespassing on the field. On Oct. 17, the college requested Carr provide a written explanation of why the college must do more than obtain a building permit for the proposed fence.

Carr’s Nov. 5 response stated that the fence “is clearly a component of the college’s overall plan of development for the athletic field,” and that “if not for the construction of the turf field, the college would not be proposing a fence. The fence cannot reasonably be considered independent of the turf field.” Carr reminded the college of Tierno’s specific denials of any intention of the college to build a fence or any other embellishments around the field, and said the village planning board’s approval of the field project was “clearly and specifically” based upon the college’s specific representations as to “what would not be built in conjunction with this project.”

The fencing plan should have been submitted to the planning board with the overall turf field plan in 2011 so the board could assess the potential impacts of the fence on the character and integrity of the adjoining historic district and properties, Carr stated. He further stated that the college’s “intentional” separation of the fence application from the previous field application flies in the face of state laws preventing separate parts of the same project from being submitted individually — called “segmentation” — as a way to possibly change the outcome of a site plan review.

The college’s “intentional separation” of the fence plan from the turf plan “could easily be construed as an effort by the college to circumvent the clear and unequivocal requirements of both the village code and the State Environmental Quality Review Act,” Carr wrote.

The college appealed Carr’s decision to the ZBA on Feb.1, 2013, and the board held a public hearing on the issue on Feb. 5. The college submitted additional comments to the board on Feb. 27.

The ZBA’s public hearing on March 26 was one final opportunity for the college and the public to submit further comments and information to the ZBA before the board issued a ruling on the college’s appeal of the ZEO decision.

At the hearing, Bernstein reiterated the college’s position that the fence was a project separate from the turf field and that to arbitrarily connect the two was a legal “slippery slope” that would prevent any landowner from building any fence without it being tied to some other previous project. He said that because this was a perimeter fence and not a fence only for the turf field there is no reason that an amended site plan review of the field project must be completed.

Carr had “clearly misapplied” the segmentation prohibition of state law to this case, and the college never contemplated adding a fence during the field construction process, Bernstein said.

ZBA members asked multiple and specific questions of Bernstein during the hearing, most specifically about the college’s past and present intentions to build a field and the issue of segmentation. Board member William Keiser said that in the college’s site plan review for the turf field, it was specifically stated — and approved by the planning board — that no fence would be erected, yet now they want to build a fence.

Bernstein said the previous comments were correct in that no fence was contemplated for the turf field — the fence is for the athletic complex perimeter.

“That’s the hard part for me, that this verbiage has changed over time,” said board member Tara Hartley. “It seems like it is purposeful to avoid the segmentation argument.”

Board Chair Philip Byrnes asked Bernstein whether or not the fact that College President Tierno specifically stated on the record that the fence was meant to protect the college’s $1 million investment in the field denotes an “ongoing process” and therefore that the fence is “an ongoing extension of the athletic complex?”

The issue was also raised that in the college Winter 2013 magazine, a fundraising notice states that the Christakos Field project is “well underway” with “significant giving opportunities” remaining, including plans for a press box and bleachers as part of the “overall aim” to make the field a quality sporting facility.

Bernstein said that because the fence is for the perimeter and not for the field, the argument does not apply.

After 45 minutes of discussion and questions, the board closed the public hearing. The board then met in closed session with their attorney, John Langey, to discuss the issue.

Langey said the board has two options before it: to uphold Carr’s decision, at which time the college would need to apply to the village planning board for an amended site plan for the turf field project, or to overturn Carr’s decision, which would then leave the college’s permit application to build the fence in Carr’s hands to approve.

The ZBA will announce its decision at its meeting at 7 p.m. Thursday, April 18, in the village office meeting room.

Jason Emerson is editor of the Cazenovia Republican. He can be reached at [email protected].