ZBA Minutes – June 2014

ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK

(845) 626-2434
torpbzba@hvc.rr.com

 

MINUTES of June 19, 2014 the Town of Rochester Zoning Board of Appeals, held at the Town of Accord Fire Hall, Accord, NY.

 

Chairperson Haugen De Puy called the meeting to order at 7:00PM.

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Pledge to the Flag.

 

 

PRESENT:                                                                                        ABSENT:                                                              Beatrice Haugen- De Puy, Chairperson

                Cliff Mallery, Vice Chair

Charlie Fischer

Steven Fornal

Troy Dunn

 

Also present:

Mary Lou Christiana, Attorney for the Town

Rebecca Paddock Stange, Secretary.

Diane Schoonmaker, owner of Flying Change Farms

Patrick Williams, owner of Flying Change Farms

Michael Moriello, Attorney for Diane Schoonmaker and Patrick Williams

 

 

DECISION

Robert Rominger, Appeal of CEO Determination requiring a Miscellaneous Permit as per Zoning Permit  #10 of 2014 for indoor riding facility for Diane Schoonmaker located at 235 Airport Road, Accord

 

Michael Moriello, Diane Schoonmaker, and Patrick Williams were present on behalf of the application.

 

Chairperson Haugen De Puy noted that we were here this evening to make decisions on 2 appeals of Code Enforcement Officer Determinations. The second decision is a two part decision on an appeal. The first decision that the ZBA needs to make is an appeal of CEO Determination requiring a Miscellaneous Permit as per Zoning Permit  #10 of 2014 for indoor riding facility for Diane Schoonmaker located at 235 Airport Road, Accord filed by Robert Rominger. She suggested the Board discuss and give their input on this.

 

Mr. Fornal questioned if they should do SEQRA.

 

Attorney for the Town, Mrs. Christiana noted that SEQRA is not done on appeals of CEO determinations. This is a Type 2 Action under SEQRA.

 

Mr. Dunn believed that the appeal should be denied and the CEO determination should be upheld.

 

Mrs. Christiana noted that they should state why it should be held so their reasons are on the record.

 

Mr. Mallery noted that he would support that based upon the laws of the Town of Rochester, the Zoning Laws and a lack of direct evidence in the record supporting the appeal.

 

Chairperson Haugen De Puy questioned if it would be fair to say that looking at this from the standpoint that they have to look at it from, which would be from Mr. Davis, CEO that he made his decision based on the information that he had at that time. Would that be fair to say?

 

Mr. Mallery noted that they are basing their decision off of what they have.

 

Mrs. Christiana noted that the application in front of him was for indoor riding arena, not for anything other than the applicant that he knew of.

 

Chairperson Haugen De Puy noted that they were looking to deny Mr. Rominger’s appeal and uphold the CEO’s determination based on the laws of the town and the evidence supporting the case and based on the information that was before Mr. Davis, CEO at the time he made his decision.

 

Mrs. Christiana stated that it was important to note that part of the appeal goes to NYS Building Code issues and that was argued at the public hearing, but that is not the purview of this Board. There is another procedure that  is available where they go through the Dept. of State. The ZBA can only look at the Town’s Zoning Laws. They could not look to see if Mr. Davis complied with NYS Building Codes. That was not the ZBA’s area.

 

Chairperson Haugen De Puy motioned for the Town of Rochester ZBA to deny the appeal brought forth by Mr. Rominger and to uphold the Code Enforcement Officer’s Determination based on the laws of the Town and evidence supporting the CEO’s decision which was based on the information that the Code Enforcement Officer had before him at the time he made his decision. The ZBA cannot entertain appeals based on NYS Building Code Issues and could only comment on Town of Rochester Zoning Laws. The ZBA does not have the authority to look at NYS Building Codes or entertain appeals of such. Motion seconded by Mr. Mallery.

Vote:

Haugen- De Puy, Chairperson-       Yes                  Mallery, Vice Chair-             Yes

Dunn-                                                 Yes                  Fornal-                                   No

Fischer –                                             Yes                 

 

Motion carried- 4 ayes, 1 nays, 0 abstain, 0 absent

 

DECISION:

Applicant #1: Robert Rominger,

Appeal of CEO Determination requiring Site Plan Approval as per Zoning  Permit  #15 of 2014 for indoor riding ring for riding lessons and educational spot for year round teaching for Diane Schoonmaker located at 235 Airport Road, Accord

 

Chairperson Haugen De Puy asked for Board discussion.

 

Mr. Mallery questioned if this was the determination that Site Plan Approval should be required?

 

Mrs. Christiana agreed and noted that Mr. Rominger’s appeal is looking for a determination that both a Site Plan Approval and Special Use Permit are required because this should have been classified as a Commercial Recreational Use.

 

Mr. Mallery noted that the Town had some precedent on this.

 

Chairperson Haugen De Puy agreed and noted that Cori Nichols in January of 2013 was issued a Site Plan Approval for a similar application.

 

Mrs. Christiana noted that this was a Planning Board Decision that the ZBA went back and looked at. In that decision the applicant was looking to do a number of things including boarding horses, keeping her own horses—a horse farm and as part of that she also had an enclosed riding area for both lessons and therapeutic uses. In that case, it was looked upon by the Planning Board as a Commercial Stable, which is what Mr. Davis classified Flying Change Farms request as. All that was required was a Site Plan Approval. No Special Use Permit was required. The addition of the indoor riding arena did not result in it being a Commercial Recreation Use. Something very similar has happened in the last year and a half. She also noted that Mr. Rominger was sitting on the Planning Board when the Planning Board made the determination granting the application Site Plan Approval for the Commercial Stable. She believed that he actually seconded the motion for that approval. She was stating this because she expects appeals on this either way and she felt it was important to note.

 

Mr. Mallery wanted to clarify that in this case the CEO determinates that Site Plan review was required. Did he also determine a Special Use Permit was required.

 

Mrs. Christiana noted that he did not require a Special Use Permit. He classified this as a Commercial Stable.

 

Mr. Mallery clarified further and noted that the appeal is that it should have been classified as Commercial Recreation and not Commercial Stable?

 

Mrs. Christian answered, yes.

 

Mr. Dunn believed that based on the facts that the appeal by Mr. Rominger should be denied based on precedence in the Town that a like facility was approved under the same definition and a site plan was required, so would the ZBA not uphold the determination by the CEO?

 

Mr. Mallery noted that he thought they should uphold the determination of the CEO that a Site Plan Review is required and a Special Use Permit is not.

 

Mr. Moriello requested to speak from the audience.

 

Chairperson Haugen De Puy allowed it.

 

Mr. Moriello noted that he knew what happened before, but this Board is only bound on prior precedent on essentially the same facts. There are some different facts on this case. His client has an established agricultural use. He didn’t believe that the other one was established. It was a new use. This Board has to follow the records before it. As far as he could tell there was absolutely no submittal that addressed the Zoning issues that was relevant. There has been nothing submitted by Mr. Davis, CEO as to why he made his determination. Mr. Rominger’s entire address was based on the Building Code Violations. He felt it was very clear that this was an agricultural barn under Zoning and was defined as such as well and has been used as an Agricultural Barn. He also thought that Ag & Markets Law superseded any other determination that could be made and moreover, even if they didn’t think it was a slam dunk, at best it was ambiguous as to whether it was an agricultural barn or a commercial barn. Even if they adopted that position, any ambiguity in the Zoning Law has to be resolved in favor of the land owner. With the record that they have here, it was clear that it was an Agricultural Barn and didn’t need site plan approval. His worry about Site Plan Approval is that he wasn’t worried that they wouldn’t get it, but it is going to cost them a ton of money and it was going to give Mr. Rominger a forum to introduce a whole plethora of other concepts about this application. He didn’t think that was fair based on the record that was made. He thought that Mr. Davis made the right decision in the beginning. The record before the Board now does not support that claim. Before he has his client spend a lot of money on a site plan and go in front of a forum where Mr. Rominger has the ability to have a forum where he can have comments and public hearing and his lawyers will delay things. He didn’t think there was any reason to go through that. He urged the Board to go through the memorandum that he submitted. It was clear. To say that this was essentially the same as what happened before, it is not. That was not an established Ag use and it wasn’t in an Ag District.

 

Mrs. Christiana noted that just as the ZBA couldn’t look at the Building Code, they couldn’t look at the Ag & Markets Law. She believed that the applicant had a letter into Ag & Markets and if they over ruled, it, then so be it. The ZBA isn’t Ag & Markets. They have to look to their own Zoning Code and precedent.

 

Mr. Moriello agreed, but didn’t see that there was any authority to call this a Commercial Stable when a Commercial Stable isn’t even adequately defined in the Town’s Zoning Law.

 

Mr. Mallery noted that the Board has spent a lot of time reviewing the submissions by the applicants. This isn’t a simple issue. The direct evidence before this Board is not all that good, however, when Mr. Davis was here the other night, no one asked him any questions, and he thought that was surprising. He expected a number of questions. He also expected more in the way of direct evidence and he didn’t see it. So, based upon what they know and the evidence before them that is what they are going to make their decision on.

 

Mr. Moriello noted that he felt it was incumbent on him, if he has a position that he is articulating on why he is sending something for Site Plan Approval, it’s incumbent on him to send that, it’s not incumbent on them to ask him why. He remembers the one thing he said is that he couldn’t wait to issue the C/O. That is putting an unreasonable burden on his client. Mr. Davis was here, if he had something to say to support his decision, he should have said it.

 

Mr. Mallery didn’t agree. He stated that this was Mr. Moriello’s appeal and Mr. Rominger’s appeal and the ZBA’s job is to decide those, so if he thought that he had evidence to support his appeal, then he should have asked the questions.

 

Mr. Moriello did not agree. Why did he have to ask? Mr. Davis needed to show the ZBA the evidence. It wasn’t incumbent on his client to elicit that out of him.

 

Mr. Mallery didn’t agree.

 

Mr. Moriello noted that it was the ZBA’s job.

 

Mr. Fornal noted that the applicant stated that the arena met the definition of an Ag Barn. Which definition was he referring to?

 

Mr. Moriello noted that he was saying that under NYS Ag & Markets Law it was clearly an Agricultural Barn. Under the Town’s Zoning Law it is clear that it is an Agricultural Barn.

 

Mr. Fornal questioned if that was even with the public component?

 

Mr. Moriello stated yes. He didn’t think that the public component changed the agricultural nature any more than the public component changes Kelder’s Farm.

 

Mr. Fornal noted that the definition specifically excludes if there is a public component.

 

Mr. Moriello didn’t agree.

 

Mrs. Christiana noted that Mr. Kelder had a Site Plan. She stated that next year someone would be quoting this case and they would be a precedent for some other Town.

 

Mr. Moriello noted that the bottom line is that this has become a very expensive proposition for his client and he does not want to give Mr. Rominger a forum before the Planning Board. The definition of Agriculture in the Town’s Zoning Law is: The use involving the production, keeping, or maintenance for sale, lease or personal use of plants and animals useful to man, including but not limited to forages, grain and seed crops, dairy animals, poultry, beef, sheep, horses, pigs, bees, fur animals, trees, food of all kinds, vegetables, nurseries, and lands devoted to soil conservation or forestry management programs.

 

Chairperson Haugen De Puy noted that the ZBA has spent great time on this and have really looked into this and already knew that Mr. Kelder did a site plan and he is agricultural based. They did a lot of research from their Town cases that came before them.

 

Mrs. Christiana noted that they have discussed the two appeals together from Mr. Rominger and Mrs. Schoonmaker- did they want to make a co-joined decision?

 

Chairperson Haugen De Puy motioned to deny the appeals and uphold the decision of Mr. Davis. There is precedent in the Town that site plans were necessary in the Town even with an agricultural use. One with an agricultural use and one with a new use. The precedent that a like property was designated by the Planning Board as a Commercial Stable and only needing a Site Plan Approval. Further for the record, and she felt it was important to note that the approval for the Nichol’s Site Plan, the motion before the Planning Board was seconded by Mr. Rominger. As far as Ms. Schoonmaker’s appeal, they would deny that as well and uphold the CEO’s determination on the same basis, based on the Town’s Code that Site Plan Approval is required.

 

Mr. Moriello noted that all the ZBA was doing was giving Mr. Rominger the ability to fight on two fronts.

 

Mrs. Christiana noted that the ZBA can’t base their decision on what Mr. Rominger may or may not do. They can only base it on the laws, not on a personality.

Mr. Mallery seconded the motion.

 

Discussion:

Mr. Dunn didn’t think they should lump the two appeals together, the way it is listed on the agenda.  It was fair to say that the way it is on the agenda under ‘D’, applicant #1 Mr. Rominger- the motion made by Chairperson Haugen De Puy supports that denial. They could do that. #2 regarding Diane Schoonmaker and Patrick Williams requires some discussion. Were they like properties?

 

Mrs. Christiana asked if the wanted to withdraw their motion and second and further discuss it and do it as two separate motions.

 

Chairperson Haugen De Puy motioned to deny Mr. Rominger’s appeal and uphold the decision of Mr. Davis. There is precedent in the Town that site plans were necessary in the Town even with an agricultural use. One with an agricultural use and one with a new use. The precedent that a like property was designated by the Planning Board as a Commercial Stable and only needing a Site Plan Approval. Further for the record, and she felt it was important to note that the approval for the Nichol’s Site Plan, the motion before the Planning Board was seconded by Mr. Rominger.

 

Mr. Dunn questioned if they wanted to keep the second half of that? Was it correct wording to say upholding the CEO’s determination? If they do that they are saying that Site Plan is required. They should just deny Mr. Rominger’s appeal. He didn’t think it was fair to address that part yet. They were going to get to that next. It was two separate issues. Mr. Rominger doesn’t think that the determination was correct and he wanted more. Where the Schoonmaker’s wanted less. That’s why he felt they needed to be handled independently. Was it fair to say from a legal standpoint that Mr. Rominger’s is denied under Delta subpart 1 and the reason is precedence.

 

Mr. Mallery didn’t think it was just about precedence, it was also about facts established.

 

Mr. Dunn agreed with however they wanted to word that.

 

Chairperson Haugen De Puy questioned how Mr. Dunn wanted to word the motion.

 

Mr. Dunn said however much verbiage they needed. It was based on precedence and was on the record from this meeting.

 

Mr. Mallery noted that precedence didn’t mean as much to him as the laws as he understands them and the facts that they were given. As Mr. Moriello said, the precedent is different.

 

Mr. Dunn didn’t even know if that was the right answer—it may not apply.

 

Mrs. Christiana noted that they can vote however they wanted, but they needed to have a basis for the denial. When this is appealed, one way or another, it needs to be defended in Court.

 

Mr. Mallery noted that they owed it to the people that made the appeals to tell them why it was being denied.

 

Mr. Dunn was concerned with whether he says precedent or just this case, Mr. Moriello probably said it the best was he wasn’t sure if this was applicable because it might not be alike.

 

Mr. Mallery noted that they should throw out the precedent part of the reasoning.

 

Chairperson Haugen De Puy questioned even using Kelder? Wouldn’t that be a similar precedent?

 

Mr. Mallery didn’t care about the precedent. Was Mr. Dunn persuaded by the facts of the law?

 

Mr. Dunn was persuaded by a precedent as long as it was alike. He wasn’t convinced of that. Nichol’s wasn’t Ag.

 

Chairperson Haugen De Puy was talking about Kelder. He is an Ag use and he had to go in front of the Board and get a Site Plan Approval.

 

Mr. Dunn noted that was before his time, he wasn’t educated on the facts of that.

 

Mr. Fornal noted that he was Chairman of the Planning Board at that time.

 

Mr. Moriello noted that these are two different things. Kelder is only relevant to the Board because of the standpoint of the commercial use.

 

Chairperson Haugen De Puy noted that this was not making it a level playing field for the other side.

 

Mr. Moriello noted that it was their business to be here, that’s their problem.

 

Mrs. Christiana noted that the public hearing had been closed.

 

Mr. Moriello noted that this wasn’t closed to the applicant—the petitioners and respondents. They can come.

 

Chairperson Haugen De Puy noted that they gave everyone a week to make any more public comments.

 

Mr. Moriello noted that based on the record before them, all the extraneous things coming in—the Board was bound to base it on what was before them. He didn’t see any other way.

 

Mrs. Christiana noted that Mr. Moriello wrote about this precedent in his papers and that was what they were talking about.

 

Mr. Mallery noted that based upon what they know of the record, the facts and the law, he was ready to make a decision. He wasn’t considering the precedent because he didn’t know enough about it.

 

Mr. Fornal noted that if they forget that, they needed to start thinking about the fact that was what they were really hanging the denial on. If they didn’t use the precedent, then they don’t have that to hang it on, then they are back to definitions if the CEO made the correct decision and did he define his terms correctly.

 

Mr. Mallery noted that precedent is only applicable to the fact that a Special Use Permit isn’t required.

That’s what the Board needs to do, decide whether the CEO was proper or not and make a determination based on the facts of this case.

 

Mr. Fornal noted that definitions are all important. If we lose the precedent, then it becomes definitions. It comes down to where they were advised that they couldn’t use Ag Market definitions. Mr. Moriello seems to say that yes the ZBA can. In Ag & Markets, Agricultural Buildings or Barn is defined in Section 202 of Building Code as “a structure designed that has farm implements, hay, grain, poultry, livestock or other horticultural products. This structure shall not be a place of human habitation or a place of employment where agricultural products are processed, treated or packaged, nor shall it be a place used by the public.” So then they come down to the public component of what Mr. Davis had to go on, which was the statement of indoor riding facility and that’s what it is coming down to. Commercial Stables don’t address the use of indoor riding arenas. The point is that they are advised that they aren’t to use Ag Markets, but they are getting conflicting statements about that. How do they go about that?

 

Chairperson Haugen De Puy noted that they use their own Attorney’s advice.

 

Mrs. Christiana noted that she gave her advice and they could take it or leave it.

Mr. Fornal believed that they should go with the definitions and it doesn’t fall under Commercial Stables. This does fall under 140-8 which is if it is an unlisted use, it should go before the Town Board. That is what the Code says. That would add a whole other level. Commercial Recreation is the only classification that is anywhere close to the use of this facility. That’s where they stand. So if they can’t use Ag Market Law and can only use a generalization of what an Ag Building is then he doesn’t think that is what the State of New York did and the definition is clear and everyone in the State of NY uses it. That definition says because of public participation the Ag Market exemption for review is no longer valid. They will go on to say that it shouldn’t be full blown Special Use Permit, but the fact of the matter is that once the public component is there, because of health and safety issues and the Town does have a responsibility to address those, that’s why the State of NY makes that exception.

 

Mr. Dunn questioned if what Mr. Fornal was saying was that they weren’t protected as an agricultural operation?

 

Mr. Fornal noted that they were not protected from review according to the State of NY. If they didn’t have the public component, then they did. That’s why Chris Kelder had to come in because it was open to the public.

 

Mr. Dunn noted that it wasn’t a like operation.

 

Mr. Fornal noted that it was a public component based on the definition of the State of NY.

 

Mr. Dunn questioned what the Attorney for The Town’s take was on this?

 

Mrs. Christiana noted that it was a totally different operation, but if they didn’t have the public coming in it wouldn’t be needed.

 

Mr. Dunn didn’t see anything having to do with the public component under the Ag & Markets Law.

 

Mr. Fornal noted that this was the definition used by the DOS, Building Code and Ag Market Law. They said they used that definition.

 

Mr. Dunn noted that there was definitely a conflict. They mention ‘Commercial’ in the addition of the Equine Operation in Ag & Markets Law being eligible for protection. Where was the conflict?

 

Mr. Fornal noted that what Mr. Dunn was referring to was a guide line and he was reading the actual definition.

 

Mr. Moriello noted that was in the Ag & Market’s Law.

 

Mr. Fornal received the definition excepting of public component right from Bob Somers from Ag & Markets.

Mrs. Christiana still felt that this Board needed to deal what was in their own law.

 

Chairperson Haugen De Puy agreed that the ZBA needed to go by what was in their own laws.

 

Mr. Fornal noted that then they needed to follow 140-8 of the Zoning Code.

 

Mr. Moriello noted that they couldn’t go to the Town Board. The ZBA could either deny or approve and they could either say that a Special Use Permit isn’t required and Site Plan is required. They have to rule what is in front of the Board.

 

Mrs. Christiana noted that where Mr. Fornal is coming from is a provision in our Town Code. What the ZBA has to do is put themselves in the Code Enforcement Officer’s position. She’s not saying that she agrees with Mr. Fornal’s point, but one of the laws in front of the CEO is that if they have an undefined use, it should be sent to the Town Board. That is something that he is bringing up.

 

Mr. Moriello noted that their definitions are ambiguous as best.

 

Mrs. Christiana noted that the Board had all of Mr. Moriello’s arguments.

 

Mr. Mallery noted that there was a motion on the table.

 

Chairperson Haugen De Puy noted that it was withdrawn.

 

Mr. Moriello questioned if all the other riding rings in the Town of Rochester go through Site Plan review? Every one of them?

 

The Board only knew of the ones they discussed tonight.

 

The Secretary noted that the only one that she was aware of was Cori Nichols and that was in 2013 and she went for Site Plan Approval.

 

Mr. Dunn wanted to crack this nut. Was Cori Nichols alike or not?

 

Chairperson Haugen De Puy noted that it wasn’t in a County Ag District.

 

Mr. Dunn stated that they weren’t’ alike then, was that fair to say?

 

Mr. Fornal noted that her primary use was that of Commercial Stables. That sort of fit it where this doesn’t.

 

Mr. Dunn wanted to know where the component of the law was on overbearing and putting a burden on the land owner. It’s the whole essence for the ZBA. What needs to be looked at is because of the issue of the site plan and Mr. Moriello’s comment about the site plan being overly onerous and he would ask for an exception and get Mr. Moriello to tell them where it is in the Code. It isn’t his opinion, it’s law of where that is addressed. He was under the assumption that under the Ag & Markets Law that the site plan was a very simple process. That was laid out in the law.

 

Mr. Moriello noted that the streamlined version in the Ag & Markets Law wasn’t a force of the Town’s Zoning Law to his knowledge. What worries him is that once they get into the site plan the lawyers are going to be arguing and dragging things on and he is quite certain in this case that SEQRA doesn’t apply. They will argue that it does. And they will bring in any amount of environmental issues that have no relevance to what they are going to review. He worries that they are going to spend way more money because of this.

 

Mr. Fornal noted that was certainly one scenario, but wasn’t there also another scenario where there isn’t any confrontation?

 

Chairperson Haugen De Puy noted that they had given Mr. Moriello more than enough time. She suggested that since everyone was all over the place, they tabled it and got back to it.

 

The rest of the Board wanted to make a decision.

 

Chairperson Haugen De Puy suggested they move forward and make a motion in that case.

 

Mr. Dunn motioned that under Subpart Delta, Applicant #1 (Rominger). That appeal be denied.

 

Mrs. Christiana suggested that he add what it is based on.

 

Mr. Dunn added that the CEO’s determination was an improper determination. He didn’t feel comfortable with using the Nichol’s application because they decided that it wasn’t’ a like property.

 

Mr. Mallery offered that Mr. Dunn wanted to base his decision on the facts presented to this Board and the laws.

 

Mr. Dunn motioned for the Town of Rochester ZBA to deny the appeal brought forth by Mr. Rominger of Zoning Permit #15 of 2014 based on the laws and facts presented.  Motion seconded by Mr. Mallery.

Vote:

Haugen- De Puy, Chairperson-       Yes                  Mallery, Vice Chair-             Yes

Dunn-                                     Yes                              Fornal-                                   No

Fischer –                                 Yes                 

 

Motion carried- 4 ayes, 1 nays, 0 abstain, 0 absent

 

 

DECISION:

Applicant #1: Diane Schoonmaker & Patrick Williams

Appeal of CEO Determination requiring Site Plan Approval as per Zoning  Permit  #15 of 2014 for indoor riding ring for riding lessons and educational spot for year round teaching for Diane Schoonmaker located at 235 Airport Road, Accord 

 

Chairperson Haugen De Puy questioned if anyone had a motion they’d like to present for this appeal.

 

Mr. Dunn  questioned if they could or could not cite Ag & Markets Law?

 

Mrs. Christiana stated that it is her advice that the ZBA can only interpret the Town of Rochester’s Zoning Law.

 

Mr. Dunn motioned that regarding ‘D.’ #2 on the agenda for Diane Schoonmaker and Patrick Williams, the appeal be approved based on the facts of economic hardship and the burden of the regulation on the applicant.

 

Mrs. Christiana noted that this wasn’t a variance, it was an appeal.

 

Mr. Dunn noted that he was working on the verbiage here. Mr. Dunn questioned if Mr. Mallery knew where he was going with this?

 

Mr. Mallery believed he did, but he had no suggestions as to verbiage.

 

Chairperson Haugen De Puy tried to help and suggested that language should be included that they approve the appeal based on economic hardship and the burden of the regulations of the Town to do a site plan.

 

Mr. Dunn noted that his concern is that they have an applicant that has invested a lot of money into this venture that they all know is good for the community, yet they are being stonewalled and they can’t get it put through. Why can’t they get it put through? Because of burdensome regulation. The entire community is in support of this. He knew what really mattered was the law, and he fully understood that. His point was that there was an allowance somewhere here. Was this not a piece of the ZBA? So people could come before the Board. He was trying to do something good, yet he kept running into road blocks. He asked the Board for help.

 

Mrs. Christiana noted that Mr. Dunn was trying to give someone relief from what the law is, which is what you do on a variance. This is not a variance. The members are putting themselves in the CEO’s shoes and determining whether he made a right decision.

 

Mr. Dunn understood that.

 

Mrs. Christiana understood what Mr. Dunn was saying, but that was applicable to variances.

 

Mr. Mallery didn’t know if the ZBA could waive the requirement for site plan approval. Couldn’t the Planning Board if it chooses to? The process is they believe the law supports Site Plan Approval, then that’s what it is.

 

Mr. Dunn noted that since this can was opened, the problem is that we should as a government should be here to help and they were hindering the process.

 

Mr. Fornal noted that Mr. Dunn was only looking at one component. This was also placed in a Township, inside a community with other underlying factors- there are historic properties, there are concerns.

 

Mr. Dunn heard the concerns- they were all good.

 

Mrs. Christiana noted that wasn’t part of their decision.

 

Mr. Mallery questioned if the law required Site Plan Approval for the PB, could the PB waive Site Plan Approval if they thought it was appropriate?

 

Mr. Fornal noted that they couldn’t waive Site Plan Approval, but they could waive components of the review.

 

Chairperson Haugen De Puy noted that the ZBA couldn’t tell them to do that.

 

Mrs. Christiana agreed. When and if this gets to them, it is their decision upon the request of the applicant.

 

Mr. Fornal noted that there was wiggle room if they went and said that Site Plan was required.

 

Mr. Dunn noted that if he was in Diane Schoonmaker’s shoes he wouldn’t feel comfortable with wiggle room. There has to be a process where this can be streamlined. He knows he read it in the Ag & Markets about being streamlined.

 

Mr. Fornal noted that is a suggested way to handle site plans. There is no saying that the PB wouldn’t do that. The ZBA’s decision is the determination correct.

 

Mr. Moriello noted that the PB will require professional drawings…

 

Mrs. Christiana noted that there is no requirement in the Zoning that professional drawings be submitted.

 

Mr. Dunn thought that they needed to know the answer to this and he thought it was a big piece of the decision- that process- can it be a streamlined process?

 

Mr. Fornal noted that the PB has their own procedure and it will go through and the attorney that comes in for Flying Change Farm has that waiver section and he can now see why it is there. They can ask for certain things, especially if they are burdensome in an Agricultural context. They can ask to have those waived.

 

Mr. Moriello agreed with Mr. Fornal, but whether or not they are granted they won’t know. As for what they can base their decision on, they have any number of things here that they can base it on- from ambiguity to the Zoning Law—which he thinks clearly it is, that in and of itself is enough to rule in favor of his client. Even beyond that, his client has a vested rights argument that they made. They relied on a permit that was granted and spent $140,000 to build it. To make them go back through. Ambiguity if involved.

 

Mr. Dunn asked for help with the wording of his motion.

 

Mr. Fornal noted that this could be a way that they use precedent that it has been required in the past.

 

Mr. Dunn noted that those were not like. There is no instance that is exactly like this. He asked for help again regarding his motion and the verbiage. Could they wrap in economic hardship and using Mr. Moriello’s term which he liked of ambiguity? He thinks that’s huge. The ambiguity of the law based on that.


Mrs. Christiana noted that if the Board wants to find that it’s ambiguous and therefore they shouldn’t have to have a site plan, they could find that. She didn’t want to give out a whole lot of legal advice at this point, she already gave the Board her advice during their attorney’s conference. If they wanted to make a decision tonight, or if they wanted to table it and draft it up with her another time… she understood that the Board wanted to make a decision though.

 

Mr. Dunn motioned again under agenda item ‘D’, Diane Schoonmaker and Patrick Williams, determination to grant the appeal based on ambiguity of the current Zoning Code and economic hardship if it is appropriate. He believes that it is a huge part of this. It is a fact, whether it has legal bearing or not.

 

Mr. Fornal noted that was opinion. Substantiate the economic hardship.

 

Mr. Moriello noted that they were relying on a permit and spent $140,000.

 

Mr. Dunn motioned again under agenda item ‘D’, Diane Schoonmaker and Patrick Williams, determination to grant the appeal based on ambiguity of the current Zoning Code and economic hardship and that no site plan be required, thereby overturning the determination of the CEO. Seconded by Chairperson Haugen De Puy.

 

DISCUSSION:

Mr. Fornal sees this that the ZBA has a job to do and this is completely ignoring that job.

 

Mr. Dunn told Mr. Fornal what their job is. To do what is right for this community and this is what is right for the community.

 

Mr. Fornal noted that was totally opinion,  because what is right for the community is to have a process that everyone has to go through and there are some exceptions when it comes to Ag and they have honored that in their code and comprehensive plan. Several people coming into the Town with Ag uses have said that their code is head and shoulders above other towns.

 

Mr. Dunn stated that was great and it was Mr. Fornal’s opinion.

 

Mr. Fornal noted that the point is here not to require site plan, he agrees that it was a misclassification, but to allow it to go through without any review whatsoever, Mr. Dunn is not looking to the benefit of the community.

Mr. Dunn told Mr. Fornal not to tell him what he was looking for.

 

Mr. Mallery agreed that their job was to do what was right and Just in the best interest of the community and to follow the law as it exists.

 

Mr. Dunn believed in his opinion that they are following the law based on the facts that were presented to this Board. His opinion is that this is in accordance with the law and it is right for the community.

 

Mr. Dunn made a motion to approve the appeal by Diane Schoonmaker based on economic hardship and the ambiguity of the Zoning Codes and that no Site Plan Approval be required, therefore overturning the determination of the CEO which required Site Plan Approval. Seconded by Chairperson Haugen De Puy.

Vote:

Fischer:                      No                                                                               Dunn-                         Yes

Mallery:                      No                                                                               Fornal-           No

Haugen- De Puy:       Yes

 

Motion did not carry- 2 ayes, 3 nays, 0 abstain, 0 absent

 

 

Chairperson Haugen De Puy questioned if the Board wanted to know if the Board wanted to table this.

 

The Board did not.

 

Mrs. Christiana read the powers and duties of the ZBA under § 140-66 Powers and Duties.

  1. The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement,

decision, interpretation or determination as in its opinion ought to have been made in the matter by the

administrative official(s) charged with the enforcement of this law and to that end shall have all powers of the

administrative official(s) from whose order, requirement, decision, interpretation or determination the appeal is

taken.

 

This was taken from NYS Law and the Town has adopted this in their Zoning Code.

 

Mr. Fornal motioned to deny the appeal on the grounds of misclassification of the CEO and it should have been classified as Commercial Recreation.

 

Mrs. Christiana noted that the Board just made the determination that this wasn’t a Commercial Recreation designation in the previous appeal of Mr. Rominger.

 

Mr. Dunn didn’t think they should disagree and say it’s something else. They should either disagree or agree.

 

Mrs. Christian noted that they could modify it. The ZBA could make the decision as if they were the CEO. They could absolutely do that.

 

Mr. Fornal attempted to re-work his motion.

 

Mrs. Christiana noted that if he denies the appeal, he is upholding the fact that the CEO made the proper determination.

 

Mrs. Christiana noted that the first vote was with regard to the Building Permit. The building is legal and can stay up. The first vote had nothing to do with the site plan. The building can stay. Then there was a second vote which denied Mr. Rominger’s Appeal asking the ZBA to reclassify the application as a Commercial Recreational Use. That appeal was denied, 4-1. Then we had a motion that did not pass to not require Site Plan Approval. That did not pass.

 

Mr. Fornal made a motion to uphold the CEO’s classification and deny the appeal based on Cori Nichols as precedence.

 

The Board didn’t agree with the precedence.

 

Mr. Mallery noted that every decision that they make is based on their interpretation of the law and the facts presented. They didn’t need to rely on precedent.

 

Mr. Fornal motioned to uphold the determination of the CEO based on facts, law, and precedence brought before the ZBA. Seconded by Mr. Fischer.

DISCUSSION:

Mr. Dunn questioned if everyone felt comfortable with basing the decision on precedence that doesn’t apply? The motion is based on an untruth.

 

Mr. Fornal noted that a Judge would decide that.

 

Mr. Dunn noted that was Mr. Fornal’s opinion.

 

Mr. Fornal noted that it was Mr. Dunn’s opinion that it wasn’t like.

 

Mr. Dunn stated that it was fact that it wasn’t like. One is an Ag District and one is not. Which one didn’t look the same? They aren’t like parcels.

 

Mr. Fornal believed that they were like because of the use.

 

Mr. Dunn disagreed and said that Mr. Fornal was entitled to his opinion.

 

Mr. Fornal noted that he could go along with it or not.

 

Mr. Mallery noted that if the motion was based on just precedent, he wouldn’t go for it, but because it is based on the facts and the law he was okay with it.

 

Mr. Dunn noted that this has huge repercussions for the applicant.

 

Mr. Fornal noted that they were potential repercussions.

 

Mr. Dunn noted that it would have repercussions regardless.

 

 

Vote:

Fischer:                      Yes                                                                              Dunn-                         No

Mallery:                      Yes                                                                              Fornal-           Yes

Haugen- De Puy:       No

 

Motion carried- 3 ayes, 2 nays, 0 abstain, 0 absent

 

 

ACTION ON MINUTES:

Mr. Fischer motioned to approve the minutes of May 15, 2014. Seconded by Chairperson Haugen De Puy. No discussion.

Vote:

Fischer:                      Yes                                                                              Dunn-                         Yes

Mallery:                      Abstain                                                                       Fornal-           Yes

Haugen- De Puy:       Yes

 

Motion carried- 4 ayes, 1 nay, 0 abstain, 0 absent

 

 

ADJOURNMENT

 

Mr. Fischer motioned to adjourn the meeting. Seconded by Dunn . All members present in favor.

 

Since there was no further business, at 8:30PM Chairperson Haugen De Puy adjourned the meeting.

 

 

Respectfully submitted,

 

Rebecca Paddock Stange, Secretary

                        DRAFT