On June 6, 2012, the Recreation Commission approved the use of Brodie Park South by the New Hartford Football and Cheer program, a regional active sports program, despite the concerns of neighbors and 150+ residents at the effects on the park and the neighborhood of allowing the 130 Football participants to practice at Brodie South 5 nights per week in August and 3 nights per week from September through mid-November. The program will be allowed to bring in private lights and generators to allow practices to continue after dark when town parks close, and 50-75 vehicles will use the 12-car parking lot, with the overflow of vehicles parking along Niles Road, a narrow, winding, country road and the remaining vehicles parking inside the park on the grass. Football will also be allowed to place a steel POD at one of the park entrances for the sports program’s use for the 3 1/2 months that Football practices.
This intensified use of Brodie Park South, which has traditionally been used for passive recreation, is being challenged by the group of concerned neighbors and other town residents. Since the summer of 2011, when the Football program had intensified its use of Brodie South to a level which negatively impacted the neighborhood and the environment at the park, the group of neighbors and residents had brought their concerns to the town’s selectmen, to the Recreation Commission and to the Planning and Zoning Commission without any results. In the Fall of 2011 between 10-12 written complaints – depending on whether once counts a couple on a form as one or two individuals – were filed by residents with Rista Malanca, the town’s Zoning Enforcement Officer. The complaints asked Rista to investigate specific zoning violations that were occurring at that time at Brodie South. The Zoning Enforcement Officer, however, ignored the written complaints on the advice of Attorney Mark Branse, the town’s Land Use Attorney, even while Attorney Branse acknowledged in an email exchange with Rista that if she investigated the complaints a Special Exception would be required.
Following the June 2012 decision by the Rec Commission to allow the Football program to use Brodie Park South for its practices, bypassing other safer, more appropriate field space that is available for use by that program, the group of neighbors and concerned residents, now organized into a formal group, The Friends of Brodie Park South, retained a Land Use Attorney to compel the Planning and Zoning Commission to enforce the town’s zoning regulations with regard to the intensive active sports use of Brodie Park South.
Following is an update on the request made by the Friends of Brodie Park South to the town’s Zoning Enforcement Officer through their attorney asking her to apply the town’s zoning regulations to the active sports activity that the Rec Commission has approved at Brodie Park South. Download a copy of the Park Use Form with the details of the activity approved by the Rec Director on behalf of the Rec Commission: Park Use Form: Football at Brodie Park South, May 22, 2012 (20)
“Even though the use of Brodie Park South by NHYFC (New Hartford Youth Football and Cheer, a regional Football program) is considered a pre-existing non-conforming use (protected by both State and local law as it was in place prior to the new regulations being adopted) this use, even if new, would still remain legal under the recently revised zoning regulations and would not require site plan or special exception approval.”
Rista Malanca, the town’s Zoning Enforcement Officer, said on page 3 of her 6-page response to the request from Attorney Hoopes, the attorney representing the Friends of Brodie Park South (FOBPS). Attorney Hoopes requested the Zoning Commission to follow its own regulations and require a Special Exception for the Football program’s use of Brodie Park South (BPS), based on the Recreation Commission’s decision to allow Football to use Brodie South as a practice facility which constitutes an outdoor recreation use and thus requiring a Special Exception under the town’s zoning regulations; download a copy of Attorney Hoopes’ letter to the Zoning Enforcement Officer: Hoopes request to ZEO, June 13, 2012 (17).
Responding specifically to the FOBPS’ request that the Zoning Commission consider the use of Brodie Park South by the Football program as that of a Practice Facility and that the use be designated as an Outdoor Recreation Use which would require a Special Exception, Rista responded: “I believe this request is inappropriate and therefore is denied. No other Youth Sports has ever been classified in such a fashion. To singularly designate NHYFC as “Outdoor Recreation Use” and require a Special Exception, would be discriminatory in nature to this group.” It is interesting to note at this point that both the Basketball Court and the SK8 Park have in the past applied for and have been granted Special Exceptions under the standards and criteria for “Outdoor Recreation Use.” See below.
Regarding the use of private, generator-powered lights to allow practices to continue after sunset and the use of a storage POD for 3 1/2 months during the football season, Rista concluded that “these temporary lights and this pod are not improvements which would also require a Special Exception.” (page 6).
At the end of the 6-page correspondence, the town’s Zoning Enforcement Officer concluded: “It is my decision that the designation of Brodie Park South, as a town owned “Public Park” is appropriate, and that youth sports being played at Brodie Park South, as approved by the Recreation Commission, does not require any permits to be submitted and approved by Planning and Zoning, nor does it create a zoning violation.”
Download a copy of the Zoning Enforcement Officer’s letter to Attorney Hoopes, legal counsel for the Friends of Brodie Park South, including the attachments sent with the letter: 20120711_NHYFC_Zoning_Decision (14).
No Special Exceptions Applied For In Past For Brodie South, ZEO Confirms
After receiving a copy of the Zoning Enforcement Officer’s response to the Friends of Brodie Park South (above), our reporter checked with Rista Malanca on whether a Special Exception to locate active sports at Brodie South had ever been applied for and if so, if one had been granted. Rista confirmed that there are no Special Exceptions in place for Brodie South, unlike Brodie Park North where, most recently, Special Exceptions have been required for the Basketball court and the SK8 Park. When asked why those two programs had been required to apply for Special Exceptions but the Football program was not being required to apply for such an exception, Rista answered that Basketball and the SK8 Park had not really needed to apply for the Special Exceptions, according to the current Land Use Attorney, Mark Branse. The two Special Exceptions had been applied for under the previous Zoning Enforcement Officer, Karl Nilsen, and before Attorney Branse was hired as the town’s Land Use Attorney. In past conversations with Karl Nilsen, he had confirmed to our reporter that on several occasions representatives of active sports had been told that any intensification and/or expansion of their activity at Brodie South would require a Special Exception, something which they had never applied for.
Download a copy of the Special Exception for Basketball: 2008_Basketball Court Special Exception (11); also download a copy of the Special Exception for the SK8 Park: 2008_SK9 Park Special Exception (12). It is interesting to note that both Special Exceptions are granted according to the standards and criteria for “Special Recreation Use.”
Our reporter then questioned the Zoning Enforcement Officer on why the New Hartford Farmers’ Market had been required to submit a site plan with their application this year. “Wouldn’t the Farmers’ Market be grandfathered?” Our reporter wondered. According to the town’s Zoning Enforcement Officer, the Farmers’ Market is one of the activities in a town park that specifically require a Site Plan; download a copy of Section 7.3B of the town’s Zoning regulations: NH Zoning Regs. 7.3B Farmers\' Market (11).
To be sure that the Farmers’ Market submitted a Site Plan that was consistent with the rules and regulations of both the Planning and Zoning Commission and the Recreation Commission, the Zoning Enforcement Officer had recommended to the town that it ask for a continuance of the Farmers’ Market application until its organizers could submit an adequate site plan; download a copy of the Zoning Enforcement Officer’s letter to the First Selectman with a copy to Anita Barden, the Farmers’ Market organizer: ZEO Farmers\' Market Site Plan letter, March 14, 2012 (18). Once a site plan was submitted by the Farmers’ Market, then the Planning and Zoning Commission was able to consider the application which was approved with conditions limiting the time of the market, the number of vendors, the noise level and the type of parking allowed; see a download of the approval letter from the Zoning Enforcement Officer to Anita Barden, the organizer of this year’s Farmers’ Market: Farmers\' Market Approval With Conditions, March 28, 2012 (13) . This is the first year that such conditions have been placed on the Farmers’ Market use of Chapin Park.
Are Football Practices An “Outdoor Recreation Use” of Brodie Park South? That Appears To Be The Question
Whether or not a Special Exception is required for the use of Brodie Park South by the Football program appears to hinge on whether the Football practices that the Rec Commission has approved at Brodie Park South make that park a “football practice facility” which constitutes an “outdoor recreation use” requiring a Special Exception or whether, as Attorney Branse characterized the practices last year, it’s just some kids who show up, throw a ball around and then leave, just like any other users of the park. We ask you, our readers, to use your common sense to decide:
130 kids will practice at a town park for 5 nights a week in August and 3 nights a week from September through mid-November. Those kids will use equipment stored in a steel POD at the park for 3 1/2 months, and their program will bring in, and leave at the park for the duration of their practice season, private generator-powered lights to allow them to continue practices after sunset when town parks close. Accompanying the kids will be adults whose 50-75+ vehicles will take up the whole parking area and additionally will park on the grass inside the park and along the road. During these 3 to 5 nights per week for 3 1/2 months while the kids are holding their practices, they will have exclusive use of the park area designated for their use.
Common sense points to this being an outdoor recreation use of the park which requires that an application for a Special Exception be filed with the town’s Planning and Zoning Commission. Part of the Special Exception requirements are that a Public Hearing must be held during which neighbors and other residents are allowed to give their input on the proposed use. In this particular case, other field space is available in town that has the existing infrastructure to accommodate the practice needs of the Football program in a better, and safer way. It might just be that common sense will prevail in a Public Hearing and that the Football program will find itself with more appropriate field space in another location while the quiet, country character of Brodie Park South will be allowed to be enjoyed by neighbors and other park users year-round.
To learn more about the Friends of Brodie Park South visit the FOBPS website.