The Pioneer pot has been stirred once again, and the brew thickens.

The Sennett Town Board voted 4-1 on Tuesday night to file an appeal against its own Zoning Board of Appeals decision made March 25. At that time the Sennett ZBA decided to accept half of the appeals submitted by RyBach & Rig Properties LLC in its bid to continue renovating the former Pioneer Restaurant.

The issue was not publicly presented Tuesday night, but the board went into executive session to discuss it and voted to appeal the ZBA decision 4-1, with Jeffrey Herrick dissenting. The board announced the decision when it came out of executive session, but no public explanation was given.The amended agenda listing the ZBA issue was not published before the meeting, so the town hall was nearly empty. April 27 is the deadline to submit the appeal of the ZBA decision to Cayuga County Court.

David Sikora, town supervisor, was unavailable for comment on Wednesday.

Town attorney Tom Blair said the town had not yet asked his firm, Blair & Cheney, to represent it with this appeal. He said the town would have to look at the decisions the ZBA made and decide specific points to appeal based on whether facts were distorted or the law was somehow misinterpreted, then file an Article 78 in court to sue a government actor under civil procedure.

If the town chooses to have Blair & Cheney represent them, there would be no additional expense to taxpayers because of a cap on their expenses covered by insurance.

As a legislative body, Blair said, the town could accept the ZBA decision, or establish a new policy for commercial use and add other uses, or consider that people living in the residential area did not expect drive-throughs and increased traffic in that neighborhood.

It remains to be seen whether the town will actually follow suit and file for an appeal in court based on the board's examination of the ZBA decision.

“There were some things that weren't followed just as they should have been,” Kenneth Champlin, town councilor, said. He voted to appeal the ZBA decision because the new owners wanted to use the building in ways that had never been used before, namely the outside seating and the drive-through window.

“You can't let some things slide by,” Champlain said, indicating that what Rybach & Rig wanted was an impermissible use. He also said it would open up the way for others to do the same thing, setting a precedent.

“Neighbors weren't real happy with the decision,” Champlain said, “especially the neighbors who live behind.” Champlain regretted the legal costs of this new decision to taxpayers.

“We felt that we needed a second opinion, and we'll go from there,” town councilor Sylvia Wilson said. “There were several residents that were unhappy.” She said that town lawyers Blair & Cheney left it up to the town to decide whether or not they would go ahead with the appeal.

“I put a lot of faith in that zoning board,” Jeffrey Herrick said. “They did a lot of work. Very rarely do they get appealed to a higher court.”

“They had no basis for appeal,” Herrick said of his dissenting vote. He said the town board didn't even investigate the findings of the ZBA correctly to see if they had applied the law and that Sikora's only explanation for supporting the town's appeal was that he didn't like it.

“Just because you don't like it is not grounds for appeal,” Herrick said. “If I believed there was a chance for appeal, I would have voted appropriately. I believe we can spend taxpayers' money in a lot more productive ways than fighting a law.”

Herrick said that John Langey, counsel hired to represent the town during the ZBA appeal, was paid more than $20,000 just to hear this case and that legal representation for an appeal of the ZBA ruling would involve more attorneys' fees.

ZBA member Jerry Patience had supported all denials of the appeals and voted against the three appeals accepted, while Peter Adams disagreed with the decision refuting the code enforcement officer's determination that the property had lost its non-conforming use status.

These were the decisions made on March 25:

Item No. 1, the code enforcement officer's determination that outdoor seating, tables, a walkup window, a drive-through and a patio area were an impermissible change of use. The board reasoned, based on the ordinances in effect at the time, that the term “restaurant” remained undefined other than a public eating place and that the term “use” was defined as any activity carried on or in a building or a tract of land. Therefore, eating outside was not a violation and a site plan review was not required. The appeal was granted 4-1, with Jerry Patience dissenting.

Item No. 2, the use of speakers was determined as impermissable as there had been no prior existence of an outdoor speaker system. (This does not refer to the two-way speaker used in a drive-through). The board unanimously denied this appeal.

Item No. 3, the commercial use of the building's second story was determined an impermissible use. The historical record indicated the second floor was always used as a living space up to and including September 2006. The ordinance reads that “no nonconforming space shall be extended to a conforming use space.” The board unanimously denied this appeal.

Item No. 4, outdoor events, promotions, catered events, and parties were disallowed. There was no proof indicating a pre-existing use of these events that were not a feature of restaurant use. The board unanimously denied this appeal.

Item No. 5, the code enforcement officer's issuance of a cease-and-desist order for construction on the premises was overruled by the board because the owners had been issued a valid zoning permit at the time and had established a valid right to construction activity.The board voted 4-1 to support the appeal, with Patience dissenting.

Item No. 6, the code enforcement officer's determination that the property had lost its nonconforming use status as a restaurant was overturned because food had been sold on the premises prior to one year after the property had been purchased, even though the food was sold for only a few hours. The zoning ordinance for abandonment of nonconforming use did not describe or define the degree to which the use must continue. Therefore, discontinuance provisions were not triggered. The appeal of the nonconforming use status was 3-2, granting the appeal. Peter Adams and Patience dissented.

The possibility of another appeal to the ZBA decision rests with the partners in RyBach & Rig LLC.

“It was in our plan to use the second floor from day one,” Gregory Rigby, partner in RyBach & Rig LLC, said, referring to the ZBA's explanation of the use of the upstairs for children's parties and games as an impermissible use (Item No.3). He said he wasn't sure whether or not his company would appeal.

“I don't know what my legal options are,” he said, noting that the previous owners of the restaurant did live upstairs, but that there were no exterior stairs to allow rental of that area as a residence. “We were not aware that decision was on the docket,” he said.

Rigby also said that he and his partners never planned on holding parties outside and playing loud music on speakers, yet the ZBA determined the use of speakers as impermissible (Item No.2).

“I don't know how the neighbors became so fearful,” Rigby said. “We thought our restaurant would be a neighborhood kind of place, an east end destination for those living between Auburn and Skaneateles. I think somebody is playing on their fears. It doesn't have to be this adversarial, but I don't have the power to change it.”

Staff writer Kathleen Barran can be reached at 253-5311 ext. 238 or kathleen.barran@lee.net