ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ACCORD, NEW YORK
MINUTES of the August 15th, 2019 Town of Rochester Zoning Board of Appeals, held at the Town of Rochester Town Hall, Accord, NY.
Chairman Mallery called the meeting to order at 7:00PM.
Chairman Mallery recited the Pledge to the Flag.
Cliff Mallery, Chair Erin Enouen
Steven Fornal, Vice Chair
Mary Lou Christiana, Attorney for the Town. William Barringer, Alternate. Brianna Tetro, Secretary.
Appeal of Zoning Determination
30 Loosestrife Lane, Wayward Ranch
-Code Enforcement Officer’s interpretation/determination of Animal Sanctuary as stated in a letter to the Planning Board Chairperson dated June 3rd, 2019.
Ms. Enouen recused herself from the application on 7/18/2019. Alternate Mr. Bill Barringer took her place on the Board.
Mr. Allan Rappleyea, Attorney representing Mr. Anthony Ullman and six other neighbors, and Mr. Anthony Ullman himself were present on behalf of the application.
Mr. Rappleyea explained what the appeal was all about. He stated there was a request from the Planning Board Chair to the Code Enforcement Officer for what he felt was an interpretation of different previsions of the zoning code in relation to the application of Wayward Ranch. He stated he characterized the application of Wayward Ranch as one seeking an animal sanctuary and a kennel as well. Mr. Rappleyea explained that the Planning Board Chair wrote to the CEO and the CEO responded with his determination which lead to Mr. Rappleyea’s clients to appeal the determination and it really was a hybrid appeal/request for interpretation and there were estentially four different issues it brought into play and they were mapped out in the four points that a Planning Board Chair had listed in her letter to the CEO dated June 3rd, 2019. He stated the first issue they wanted the ZBA to provide a determination, and primarily an interpretation on, was in regards to adoption, adoption of animals. He said when looking up the definition of animal sanctuary in the zoning code and kennel in the zoning code, in neither case was adoption permitted and respectfully requested the ZBA take a close look at the zoning code in order to make those determinations. It was also suggested by Mr. Rappleyea that since adoption was not in the zoning code, that section #53-13 of the Code was related towards animals and was specific to adoption and the Board should take a look at that area in determining and interpreting what animal adoption entailed. He noted it did not say in either of those sections of the zoning code, that adoption was a permissible activity under the uses of an animal sanctuary or kennel. The second item that Mr. Rappleyea stated they wanted the ZBA to provide relief on was the definition of an animal sanctuary and one of the requirements for visitation related to a “structured educational visitor program” and he felt, in his mind, that those fours words were the most important. He stated that was something the CEO had suggested the Planning Board could address but it was more appropriate for the ZBA, not the Planning Board, because it was a question of interpretation and that was why, he felt, the Chair had reached out to the CEO. He said his clients wanted to have a clear definition on what animal sanctuary means and it was important because for those who lived near the project, what had happened was that Wayward Ranch had indicated that if people just showed up to their property they would show them around and would educate the visitors on what they did at the ranch, and that was not fair to the neighbors nor what they were looking for. A structured educational visitor program, Mr. Rappleyea stated should be educational and perhaps have some sort of curriculum they were going to educate someone on, with very defined times, hours, and days of the week so when it was proposed the neighbors could weigh in and have a say on how that may impact them. He stated the exact words he read to the Board, were in the law and they hadn’t seen anything in the application of Wayward Ranch other than something that was vague about what they believed it meant. Mr. Rappleyea asked what exactly was the program so the Board could provide a proper interpretation and that it was not fair to the residents and neighbors to not have structure or clear, planned, and set times, hours, and days. He said it was not fair if the applicant decided, the neighbors needed to have a say. The third item that Mr. Rappleyea wanted the ZBA to address was the issue of a kennel and animal sanctuary and could they co-exist. He stated the definition of a kennel in the Code: “A commercial or non-profit establishment in which dogs or similar domesticated animals are housed on a temporary or permanent basis.” He stated that definition was relevant to their first point and it clearly didn’t permit adoption and there was a question about what “similar domesticated animals” and what that meant. He explained that Wayward Ranch was taking parts sanctuary and mixing it with a kennel, there was no clarity, and sanctuary meant quiet and no adoption whereas a kennel had a lot of noise. He stated Wayward Ranch to merge the two and they couldn’t as they couldn’t take parts of one and put it into others, it was too impactful to the neighborhood. Mr. Rappleyea quoted a portion of Mr. Ullman’s letter to conclude this presentation: “If Wayward Ranch wants to run an animal sanctuary it must meet the definition and restrictions applicable to it and on the other hand if it wants to have kennels it has to meet those. It can’t, however, run an Animal Sanctuary that essentially evades compliance with the law regarding animal sanctuary by saying we are a kennel.”
Mr. Ullman added that the language used in the definition of animal sanctuary precluded adoption, as it was a place of refuge for animals to stay for the remainder of their lifetimes or rehabbed and released to their natural habitats. He stated it was clear that Wayward Ranch could not be an animal sanctuary and a kennel, they had to be either/or but not both. He stated adoption was not allowed if they wanted to comply with the way animal sanctuary was defined in the code, it was not permitted, and they needed an interpretation from the ZBA stating as such.
Mr. Rappleyea stated the Board needed to speak to the CEO about the definition of an animal sanctuary.
Attorney Christiana said there were no current violations for Wayward Ranch, and the CEO had stated that in a letter response to Mr. Ullman.
Mr. Rappleyea said the sent letter was absent of the animal sanctuary.
Chair Mallery explained that Ms. Erin Enouen had recused herself from the application the previous month and in her absence the alternate, Mr. Bill Barringer was taking her place on the Board for the matter.
Chair Mallery went on to ask if the application of Wayward Ranch was still pending in front of the Planning Board.
Attorney Christiana confirmed it was still in the review process in front of the Planning Board.
Chair Mallery stated if it was still in front of the Planning Board, then how was it ripe for the ZBA?
Mr. Rappleyea answered it was ripe for the ZBA because the letter from the CEO to the Planning Board Chair was unresponsive. He stated the appeal was timely as it was a determination from the CEO to the Planning Board Chair and she had been asking the CEO for help on the matter and no help had been permitted, so now it was up to the ZBA to make the interpretation that the CEO did not.
Chair Mallery agreed the letter was inadequate but how was the ZBA to know that there had been no further dialogue between the Planning Board Chair and the CEO and he didn’t know for certain if the appeal was ripe.
Mr. Rappleyea stated that the Planning Board coincided with the ZBA and he didn’t believe the Planning Board could be responsive without the ZBA.
Mr. Ullman explained the appeal was ripe.
Mr. Rappleyea stated no answer had been provided as yet from the CEO.
Chair Mallery said there needed to be more clarity from the CEO with more specifics. He asked could kennel and animal sanctuary co-exist in the code. He stated one serves one function and the other serves another function and he did not believe it was a violation to have both.
Mr. Rappleyea stated with respect to the application, Wayward Ranch was trying to blend two incompatible uses. He said they could not do that.
Chair Mallery said the structure of hours and times, etc was up to the Planning Board.
Mr. Rappleyea said it could not be up to the Planning Board without a clear definition of what the two uses meant. He stated Wayward Ranch did not qualify for both uses together but the ZBA could guide the Planning Board on what do as nothing had happened in terms of a final decision with the Planning Board for the application.
Chair Mallery stated he felt that the language of the definition for the Kennel use, specifically “domesticated animals” covered a lot of ground and there were many types of comfort animals.
Mr. Rappleyea stated he was not sure of animals besides cats or dogs being used as comfort animals.
Chair Mallery said he knew of people who had comfort ferrets, lizards, etc. Not just cats and dogs.
Mr. Ullman said there needed to a line drawn.
Mr. Fornal noted that Wayward Ranch’s website stated they were an appointment only facility.
Mr. Ullman stated there needed to be a definition of their terms and programs and a curriculum in regards to the structure educational programs. He said these were in the purview of the Planning Board but they couldn’t do that without a clear definition of the uses.
Mr. Rappleyea stated the Planning Board and ZBA should work together and the ZBA could maybe provide a statement to the Planning Board for a clear definition of the uses.
Attorney Christiana said the Planning Board could go to the ZBA, not the other way around.
Mr. Ullman said Wayward Ranch needed to have defined times and appointments, groups and their sizes. He stated he wanted an interpretation of the law.
Chair Mallery asked how, as that was the function of the Planning Board as part of their review process.
Mr. Ullman noted it was an outward manifestation.
Chair Mallery said it was not the ZBA’s function.
Mr. Psaras said the Planning Board had addressed the uses.
Mr. Rappleyea read both letters from the Planning Board Chair to the CEO and the CEO’s response to the Planning Board Chair. (See attached) He stated the response to the Chair did not provide granulated answers, nobody had said what it meant. (See attached)
Chair Mallery addressed the Board and asked if they felt the appeal should go to a public hearing the following month.
Mr. Fornal stated he didn’t feel the appeal was timely and did not feel it should go to a public hearing.
Chair Mallery asked Mr. Fornal to explain why he didn’t feel it was timely.
Mr. Fornal stated he had read the letter from Ms. Victoria Polidoro, the attorney for the landowner of Wayward Ranch, and Ms. Polidoro stated the issues of merits and the time to challenge had passed as the original determination from the CEO had been done on February 4th, 2019 and then the application had gone in front of the Planning Board on April 8th, 2019, so the 60 day time frame to appeal had passed.
Attorney Christiana clarified for Mr. Fornal that the appellant was appealing the determination from June 3rd, 2019.
Mr. Fornal said the letter from the CEO to the Planning Board Chair was unresponsive; therefore they needed to go back to the original determination which was in February 2019.
Mr. Psaras agreed with Mr. Fornal that the letter from the CEO was unresponsive but the ZBA did not have the authority to override as there had been no debate, nothing had been decided.
Mr. Fornal said they could not extend what was remaining.
Attorney Christiana said there had been similar appeal in front of the ZBA before.
Chair Mallery explained the challenge was not validity but the appellant was seeking an interpretation of the law. He said the Planning Board sent a letter to the CEO, the CEO responded but it was not responsive enough, and they wanted a response.
Mr. Fornal said the CEO should have stated the Planning Board needed to send a letter to the ZBA rather than the CEO.
Chair Mallery made the comment that he didn’t believe the appeal was ripe. He stated the Planning Board was within their rights to go to the CEO, but going to the ZBA would have been more appropriate and how did they know that the Planning Board wasn’t intending to do that as the application was still under review.
Attorney Christiana stated that only Town Officers can have ZBA interpret the law, not the public.
Mr. Fornal said he felt everything was clear in Ms. Polidoro’s letter.
Mr. Rappleyea stated in #140-66 it said an appeal such as the current one was within the ZBA’s jurisdiction and was within their right. He said the letter from Ms. Polidoro was not correct about the central issues. He advised that the Board take a look at what was issued about adoption.
Mr. Psaras read #140-67 (E):
“E. Except as otherwise provided herein, the jurisdiction of the Zoning Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative officials charged with the enforcement of this law. The concurring vote of three members of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.”
Mr. Psaras said the letter from the CEO was not responsive but he didn’t agree that the Planning Board wasn’t going to eventually go back and address the issues.
Mr. Fornal made a motion:
RE: Appeal of Code Enforcement Officer’s response (SEE: CEO’s Letter dated 3 June 2019 in response to Planning Board letter dated 24 May 2019) as pertains to the Wayward Ranch Animal Sanctuary made by Anthony Ullman as represented by Allen Rappleyea, Esq. (also representing 12 other residents as listed in letter attached to Variance Application #2019-05 CA dated 5 July 2019)
As clearly laid out in Victoria I. Polidoro, esq’s 18 July 2019 letter, the Town of Rochester Zoning Board of Appeals finds the following:
Whereas, the CEO did not render an appealable decision in that his letter to the Planning Board (3 June 2019) does not apply the zoning law or make an interpretation of the zoning law, basically there is nothing here that the ZBA has authority to determine.
Whereas the appellant is asking the ZBA to make a decision on new issues, that is something the ZBA lacks authority to do.
Whereas in the CEO’s letter to the Planning Board (3 June 2019), he did not change his determination previously made in sending this matter to the Planning Board for review. The time to appeal the CEO’s determination expired long before this appeal was taken. The CEO’s determination was made on February 4, 2019. The appeal period is 60 days from the decision being made or from when the appellant should have known of the decision. This matter has been discussed in Planning Board meetings since April 8, 2019. From the evidence before us, it appears that the appellant is in actuality and effect, attempting to appeal the CEO’s original decision.
Whereas the attorney for Wayward Ranch Animal Sanctuary presented at the 18 July 2019 ZBA meeting and the attorney for Ullman et. al. presented at the 15 August 2019 ZBA meeting.
Therefore on this 15th day of August 2019, the Town of Rochester Zoning Board of Appeals finds that the letter from the CEO to the Planning Board does not give the appellant a new opportunity to appeal the CEO’s original decision. The appeal is time barred as well as not having grounds for appealing the CEO’s 3 June 2019 letter as no determinations were made.
Mr. Fischer Seconded the Motion.
The Board discussed the motion.
Mr. Fornal said the Planning Board should have reached out to the ZBA, not the CEO. He stated he believed the appeal was time barred and there was case law presented in Ms. Polidoro’s letter that support that position. He said he personally wanted to address the issues presented in the Planning Board Chair’s letter.
Mr. Psaras asked if the ZBA could go to the CEO for assistance.
Chair Mallery said no, but the Planning Board could come to the ZBA.
Mr. Fornal said he believed the letter from the Planning Board did not go through the proper channels, as it should have gone to the ZBA not the CEO to interpret.
Attorney Christiana said it could be advised to the Planning Board to reach out to the ZBA for guidance.
Chair Mallery stated he questioned if the letter of the CEO was appealable and he felt they were stepping in the middle of the issue that was still in front of the Planning Board, the Planning Board had not come to the ZBA but the application was still in the review process, but the appeal was not time barred.
Mr. Fornal said the letter was unresponsive so they needed to go back to the original determination.
Chair Mallery said they were getting in the middle of a process that is ongoing.
Mr. Fornal said if the Planning Board asked, the ZBA could address the issues raised.
Mr. Rappleyea stated they had not seen the letter in which Mr. Fornal had referred to in his motion.
Mr. Fornal provided a copy of the letter.
Mr. Fornal made the motion to rescind his prior motion. Mr. Fischer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 1 absent, 0 abstentions.
Chair Mallery said they should table the appeal until the following month but the appellant had to agree as it would make setting the public hearing not possible until October 17th .
Mr. Rappleyea agreed to table the appeal until the September 19th, 2019 meeting.
Attorney Christiana asked that Mr. Rappleyea to provide that statement in writing and to also provide a letter to the ZBA with his response to Ms. Polidoro’s letter by September 10th so the members could review it.
There was no further discussion.
OTHER MATTERS :ACCEPTING MEETING MINUTES:
Mr. Fornal made the motion to accept the meeting minutes from the July 18th, 2019 Regular Meeting. Mr. Psaras seconded the motion. Chair Mallery abstained.
4 ayes, 0 nays, 1 absent, 1 abstentions.
Mr. Fornal made the motion to adjourn the meeting at 8:02pm. Mr. Barringer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 1 absent, 0 abstentions.
Brianna Tetro, Secretary
Accepted Septemeber 19th, 2019 as amended
*Highlighted areas indicate corrections