The Town of Rochester Town Board held the public hearing on Local law A Local Law A-2022, A Local Law Providing for a Moratorium on Actions Subject to Building Permits, Site Plan, Special Use Permits, or Subdivision Review for a Period of One Hundred Eighty Days on May 25, 2022 at 7:00pm at the Harold Lipton Community Center

PRESENT:

Councilman Michael Coleman Councilwoman Erin Enouen
Councilman Adam Paddock Supervisor Michael Baden
Deputy Town Clerk Christina Ferrara Town Attorney Marylou Christiana

ABSENT:
Councilwoman Charlotte Smiseth Town Clerk Kathleen Gundberg

PUBLIC COMMENT:
Robert Lesnow: I am in favor of the moratorium, due to the tremendous number of applications and depending on what these parcels would be used for, for example if they are tax exempt. This could possibly affect large parcels of land taken off the tax rolls. This changes the perspective population and population density and changes the land. We are potentially at risk of lost revenue which the town depends on. When owners damage property in a way the value diminishes, that then becomes a downward spiral, it’s imperative the town be able to have laws that allow to operate in the best interest of everybody who live in this town. I would love to understand how the list of exemptions interfaces with these applications. Does this mean all the applications are automatically exempt because there are already applications in for them? Or, did I hear something about if they haven’t already been approved, there can be a moratorium but if they have been approved then their exempt. If my last statement was correct then it’s certainly important to understand that the outset of the moratorium, how many of these say subdivisions been approved or are we just having a moratorium like going forward and everything that’s now under the application is automatically grandfathered in. Or are we saying wait, let’s really see are these applications in the general best interest of the town.

Gerry Fornino: In my 50 years of living here in this town, I can recall a situation the occurred back when IBM decided they would pull out. As a long-term property owner, we could be heading into a situation in which we have now overbuilt and oversold to a lot of people who saw dollar signs or whatever it may be that brought them up here to this lovely area. What happens is a real concern, all the sudden the market drops and here we are stuck with all these houses are way overpriced. Those of us that are left behind are the ones that must deal with that. Now is the time we have to act. Step back, take a look at what’s happening to our neighborhoods.

WRITTEN COMMENT:
Maren Lindstrom:
I. I wanted to reiterate my support for the Moratorium and reiterate my statement from the previous Public Hearing: setting a timeframe is essential because deadlines set expectations, provide a way to measure progress, force conversations and focus your intention. Having a deadline will give the citizens of the town better zoning laws that reflect our comprehensive plan and that are updated for where our Town is in 2022. It will focus the Town Board and give the Town some breathing room to establish up-to-date zoning.
This zoning revamp process began over six years ago and the second iteration (which combines the first 2017 iteration) the Town Board has had for 9 months. It is well overdue.
In the spectrum of land use time, 6 months (and perhaps less if all goes smoothly!) of a moratorium is peanuts compared to the value of having zoning that is updated for the updated town. I previously thought you could “break it into pieces”, but after looking at the ADU law, one can see there are too many connections and crossovers between parts of the zoning to conduct the review in a piecemeal fashion.
II. A clarification on terms in section 5 D: I understand this to mean no site plans and special use permits, period. Plus, separately no building permits/reviews for structures greater or equal to 4,000 square feet. Interpreted this way is necessary as there are many items in the code recommendations (from the 2017 and the 2021 vintages) that address site plans and special use permits: no special use as commercial special events facilities in R-1 R-2, changing week day hours for commercial special events to end at 10 PM, changing parking densities (reducing them as we are always granting waivers for having too many parking spots,), definition clarifications, yard setback and accessory structure clarifications, streamlining numerous non-compatible uses for zoning districts in the Schedule of District regulations, etc. If the moratorium is no SUP/SPA only for development over 4,000 square feet this means reusing an existing structure or adding on uses without construction can go forward regardless of square footage or construction and this could create a nest of crabs.
Robert Rosborough:
My firm represents a religious organization that uses its land in the Town to further its religious mission to educate youth in the summer months. The Town’s proposed moratorium on all development would significantly prejudice my client’s religious use of its properties, and prevent it from properly pursuing its religious mission, in violation of the Religious Land Use and Institutionalized Persons Act and the Free Exercise clause of the First Amendment to the United States Constitution. Accordingly, we respectfully request that the Town Board include an
exemption from the proposed moratorium for religious land uses to ensure that my client’s constitutional rights are preserved.
The contemplated moratorium, which proposes to suspend the processing of all building permits, preliminary or final site plan approvals, subdivisions, special permits, variances, or other land use applications or permits—whether new or pending—without regard to protecting religious uses of land is patently improper and will subject our client and any other religious organization to significant financial damage. As the Board is aware, religious land uses are entitled to special protection under New York law and RLUIPA. Indeed, as the Court of Appeals has repeatedly emphasized, “[r]eligious structures enjoy a constitutionally protected status which
severely curtails the permissible extent of governmental regulation in the name of the police powers”
(Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 496 [1968]; see Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 522-523 [1956]).
“The term ‘religious use’ is defined for zoning purposes, as broadly extended to conduct with a religious purpose” (Slevin v Long Is. Jewish Med. Ctr., 66 Misc 2d 312, 316 [Sup Ct, Nassau County 1971]). As the Court of Appeals has recognized, “[r]eligious activities are not confined to a church or house of worship. Traditionally, churches and religious organizations engage in a wide variety of activities which may be seen to be exclusively religious when they are reasonably incidental to the religious goal” (Matter of Rochester Christian Church v State of N.Y. Pub. Serv. Commn., 55 NY2d 196, 202-203 [1982]).
For example, New York courts have routinely concluded that a religious use of property
includes:
guidance of indoor and outdoor activities for youth and community work; school[,]
meeting room[,] kindergarten, small games, open field and hard-top play areas;
gymnasium; teaching secular subjects; meetings for Boy Scouts and Girl Scouts; a
religious correspondence school, including necessary publishing machinery; and a
children’s day care center for mothers in disadvantaged circumstances
(Slevin, 66 Misc 2d at 316 [collecting cases] [internal quotations marks and citations omitted]; see Matter of Yeshivath Shearith Halpletah v Assessor of Town of Fallsburg, 77 NY2d 244, 250-251 [1992] [providing residential housing and accommodations to faculty, staff, students and their families as part of the operation of a Yeshiva was incidental to the religious use of the property and served the religious purpose for which the religious not-for-profit religious corporation was formed]; Matter of Yeshiva Talmud Torah Ohr Moshe v Zoning Bd. of Appeals
of the Town of Wawarsing, 170 A.D.3d 1488 [3d Dept 2019] [holding that not-for-profit religious corporation’s proposed rehabilitation of property to provide “ongoing torah and Talmudic studies throughout the summer months” for approximately 150 students, two synagogue classrooms, a residence for the supervising rabbi and a dormitory and dining facilities for the students was permitted as a religious use “particularly in light of (the) petitioner’s representation that its purpose in constructing the facility is to provide religious instruction at the location with tranquil nature surroundings that facilitate reflection and study—a use that is consistent with a retreat house”]; Matter of Sullivan v Board of Zoning Appeals of the City of
Albany, 144 AD3d 1480, 1484 [3d Dept 2016] [holding that use of a church’s parsonage to house homeless individuals constituted a permitted religious use of the property], lv denied 29 NY3d 901 [2017]; Matter of Committee to Protect Overlook, Inc. v Town of Woodstock Zoning Bd. Of Appeals, 24 AD3d 1103, 1104-1105 [3d Dept 2005] [holding that a proposed Buddhist monastery with 42 bedrooms, a dining hall, laundry facilities, meeting rooms, office space, a bookstore, and a library was a permitted religious use; “the various uses of the proposed
monastery are an integral part of Buddhist practice, which includes teachings and monastic retreats requiring residency at the monastery”], lv denied 6 NY3d 714 [2006]).
My client’s religious uses of its property are undoubtedly protected under New York law,
RLUIPA, and the First Amendment. The Town’s moratorium, however, fails to recognize this
special protected status, and would preclude my client from expanding its religious buildings or
its housing facilities for the duration of the moratorium, which could last up to one year. These
existing religious land uses do not present any conflict with the Town’s goals in the
Comprehensive Plan, and certainly do not imperil any health, safety, or welfare issues that
should subject them to the Town’s proposed moratorium (see Diocese of Rochester, 1 NY2d at
526 [“church and school and accessory uses are, in themselves, clearly in furtherance of the
public morals and general welfare. The church is the teacher and guardian of morals, and an
educational institution, whose curriculum complies with the state law, is considered an aid to the
general welfare. These proposed structures will not interfere with the public health, nor can they
be said to be a danger to the public peace or safety.” (cleaned up)]). And any individualized
health or safety concern may be addressed in the course of any review before the Planning
Board, if necessary.
We strongly urge the Town Board to revise the moratorium to exempt religious uses of land like our client’s. Thank you for your consideration.
A Motion was made by Councilwoman Enouen to close the public hearing at 8:13 pm
Second Councilman Paddock
Aye : 4 Nay: 0 abstain: 0 4-0aye, motion carried
Councilwoman Smiseth
RESPECTFULLY SUBMITTED,
CHRISTINA FERRARA
DEPUTY TOWN CLERK