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HomeMy WebLinkAboutRogue Creek Sept 12 memo To: Danby Planning Board From: John Czamanske, AICP, Town Planner Date: September 12, 2019 Re: Rogue Creek Cidery submittal Please consider the following as you review the submittal from Mr. David Jordan: 1. In conversations between Mr. Jordan and town staff/officials over the last months, and again in Mr. Norman’s letter of August 2, 2019 at the end of the submittal, it has been suggested that Mr. Jordan might find benefit in seeking to engage the Planning Board in an optional / voluntary site plan review. That is in large part what Mr. Jordan is apparently asking for with this application / submittal. Site plan review is not required by the Zoning Ordinance for agricultural activities, but in my opinion it is warranted for these sorts of proposed uses and, again, in my opinion, it is unfortunate that site plan review is not currently required. It is good that the Planning Board has this opportunity to review and hopefully help influence considerations about potential site development in this location. 2. It is clear that Danby as a municipality and seemingly many if not most town residents support agricultural activities, for their commercial value and for all the environmental, cultural and aesthetic benefits which they can provide. [It matters not, but I share in this view.] However, the question of how 1582 Danby Road might be developed is much less about that broad support than it is about what the present Danby Zoning Ordinance allows in that zoning district, what may be proposed, how it may relate to other laws, and the site itself. In other words, the question is not whether what Mr. Jordan seeks to do seems like a good idea and a beneficial new farm craft business in town in the abstract, but rather how what is proposed may or may not be developable within the Town’s existing land development regulatory framework in the location Mr. Jordan has selected. 3. The 8/2/2019 letter from Zoning Officer / Code Enforcement Officer John Norman to David Jordan at the end of the submittal looks at what was understood at the time to be proposed by Mr. Jordan and interprets the Zoning Ordinance and other laws in context (such as the Town’s ‘right to engage in agricultural activity’ law, and the NYS Agriculture and Markets Law (AML)) so as to define the use envelope inside of which a farm craft beverage may operate in the Low-Density Residential zoning district. It seems to me from the submittal that Mr. Jordan desires to undertake a use which would to some degree be outside of that use envelope. The principal element at issue 2 is the nature of food service. The AML allows for essentially ‘finger foods’ that don’t require someone to be seated, while Mr. Jordan appears to seek to offer food service beyond that threshold (and while he does not write about the menus in his letter and has not annotated the menus included in his submittal, that they are part of the submittal are an indication of the type of food service Mr. Jordan presumably seeks to offer). It has already been clearly stated and explained in writing by the Zoning Officer that food service beyond what AML allows (so as to take on the character of a restaurant) is not allowed in the Low Density Residential Zone. There are many aspects of the Zoning Ordinance which the Town may wish to change, modernize or customize, but this site proposal is bounded by what is currently written in the zoning, not what some or even many might wish it to say. 4. At the beginning of Mr. Jordan’s letter to the Planning Board, there are statements about Mr. Norman’s letter which seem to indicate a misunderstanding of what Mr. Norman’s letter stated and/or which seem to misconstrue that letter so as to imply the Planning Board has an authority it does not have. The first quote from Mr. Norman’s letter which Mr. Jordan pasted into his letter cannot be properly understood without looking at the context in which it was written. Mr. Norman’s letter stated that if Mr. Jordan disagreed with the interpretation, there were two avenues to follow: either appealing to the BZA or to provide further clarification to the Zoning Officer regarding the proposal. It was in regard to the latter that Mr. Norman stated that an optional / voluntary site plan review might help provide that clarification / refinement so as to assist in a possible reinterpretation by the Zoning Officer. It was not saying that the Planning Board could reinterpret for the Zoning Officer or make a determination as to allowed uses, which is what Mr. Jordan appears to be arguing. The Planning Board does not have the authority, through an optional / voluntary site plan review process or a required site plan review if that was the case, to authorize a use beyond what is allowed. Again, if that is (in part) what is sought from the Planning Board with this submittal, I believe the Planning Board is without jurisdiction to approve (it would instead take a successful appeal through the BZA). 5. In regard to the nature and extent of proposed food service, because that seems to be the key use characteristic at issue: The interplay of the various local and state laws creates complexities for understanding what may be allowed in a zoning district and in relation to the NYS Agricultural Districting program. It is the NYS Agricultural Districting program which, alone, carries a quasi-pre-emption of local land use authority, in that municipalities cannot unreasonably restrict farm operations through local regulation. Neither health department laws and regulations, nor State alcohol and beverage control laws and regulations carry any pre-emption of local zoning regulation. The somewhat convoluted interaction of these laws and the understandings 3 or misunderstandings of this interaction I believe have been evident through the course of the last few years and continue to be apparent in this submittal. Here is how I understand those laws in relation to this matter: • It has been interpreted by town officials including by the Zoning Officer that the Town’s right to farm law provides a further definition for customary agricultural use than that provided with the Zoning Ordinance itself. The expanded definitional view says that customary agricultural use exactly encompasses the evolving definition of farm operations as stated by New York State in the Agriculture and Markets Law as it may be amended from time to time. From that interpretation, it has been determined that a tasting room can operate in the Low Density Residential Zone provided the activity meets all the requirements as stated in AML as to, for example, the provenance of the farm products being sold and especially, in this instance, the nature of food service. The AML provides for ‘finger foods’ that are customarily eaten while standing or walking. • New York State regulates the production, sale and consumption of alcoholic beverages. They have created and continue to evolve regulations promoting and governing farm craft beverage operations. A license is needed. However, unlike, the State’s Agriculture and Markets Law, having a license to operate a winery, bar, distillery, or cidery does not exempt that operation from local zoning. While such an operation may be required by that alcohol license to offer food service which allows a broad range of food service types from finger food up to a full-service restaurant, there is absolutely no pre-emption of local zoning for that food service conveyed by that license. • Similarly, while a health department permit may be required based on what facilities an applicant proposes to that department, there is no pre-emption of local zoning regulation by virtue of obtaining a health department permit. So, one might obtain a health department permit for a commercial kitchen such as would be found in a fast food restaurant, but that would confer zero rights to construct a fast food restaurant if the local zoning prohibited such uses. I believe conflation of the State’s complex but distinct agricultural and alcohol beverage control laws are at the heart of the misunderstandings and/or misconstruals regarding this proposal at this location. Further, while other municipalities near and far in NY State may allow through zoning regulation or non-regulation farm craft beverage establishments to offer a wide range of food services, including full-service restaurants, and while Danby may in the future 4 review and even change its regulations in some manner regarding such establishments, the current Danby Zoning Ordinance is what everyone must work with and within. While the sample menus provided in Mr. Jordan’s submittal may be appealing in and of themselves, and may indeed be fully allowed and permitted in other municipalities, it has already been determined by the Zoning Officer that farm craft beverage food service beyond ‘finger foods’ is not presently permitted in the Low Density Residential Zone. Changing that would require Town Board action, a reinterpretation by the Zoning Officer, or a successful appeal to the Board of Zoning Appeals; the Planning Board simply does not have the authority to grant approval to an expanded use. 6. The Board and Mr. Jordan will have to work through the parameters of what an optional / voluntary site plan review process might involve. At the time Mr. Jordan sought an appointment with me some weeks ago, he said he wanted the forms in order to submit an application. I provided those forms, even though it was not entirely clear to me whether he was going to decide to apply and, if he did, what it was he would be applying for. With the submittal now in hand and, given that no site plan review is required and that the Planning Board does not have jurisdiction to approve an expanded use, it is possible to start thinking about how to process it. For example, there is a SEQR short form. However, there is no approval that the Planning Board can give so there is no SEQR ‘action’. Similarly with a GML-239 referral to County Planning -- there is no approval / no action, so a referral is not required, but could be made as an optional request for feedback just as Mr. Jordan is seeking your feedback. Nevertheless, site plan review is site plan review, so while it may be optional, I will attempt to provide site plan commentary as I would if this were a real application. 7. I start site plan review by unrolling the actual plans. In this case, Mr. Jordan has provided a letter-sized drawing with limited detail at a scale of approximately one inch equals forty-five feet. There is not sufficient detail at a large enough scale with which to fully carry out site plan review. What has been provided is considered a sketch plan. While what is shown is limited in detail, there are some things that can be said or reviewed in relation to the town’s zoning: • There is no scale indicated, but it can be estimated as approximately 1 inch = 45 feet based on the dimensions given, especially those to the north of the existing vacant house on the property. A scale of 1” = 20’ would expand the view from letter-sized format to about ledger-sized (11” x 17”) format. That might be sufficient, but given the size of the site, the amount of parking proposed, and the change in grade on site, in other municipalities in which I have worked a plan such as this would be submitted with an even greater scale on 17” x 24” 5 paper and would include multiple sheets plus graphics showing the typical construction of proposed paved and gravel areas and other construction details. The sheets would include a survey, an existing conditions drawing, a site plan drawing for the proposal, a drainage/stormwater sheet, potential elevation drawings or renderings, and any construction details, signage and notes. I don’t have a recommendation for how to proceed necessarily given the circumstances, I’m just describing that it is much too small and with very limited site information in order to undertake site plan review. • From what is shown and can be estimated, it is clear that some of what is proposed on site (principally parking) isn’t allowed by the zoning ordinance (which has nothing to do with whether this is reviewed optionally by the Planning Board or for a building permit by the Zoning Officer / Code Enforcement Officer). The Town’s zoning specifies there shall be no parking within the required yard / setback areas, with a limited exception that two parking spaces per dwelling unit may be in the front yard setback for residential structures up to a maximum of four parking spaces. In the Low Density Zone, the front and side yard requirements are both fifty feet, while the rear yard is seventy-five feet. While measurements can only be approximated, parking and parking lanes to the north of the house, the rows of parking shown closest to 96B in the front, and a portion in the rear are not allowed by zoning as the sketch plan proposes. [It is important to note that, while Mr. Jordan’s proposal has been, for many months, in one way or another, looked at by town officials and others, the submission of this sketch plan now is the first time that Mr. Jordan’s parking scheme has been presented, both with the proposed number of spaces and layout. Had a parking plan been presented earlier with this number and configuration, such feedback similarly could have been provided earlier.] • In the process of estimating yard dimensions and reviewing the current language in the town’s zoning ordinance, I noted that the house appears to be a non-conforming structure at present in regard to the side yard. Fifty feet is required; the actual yard width appears to be just over 39 feet as indicated on the sketch plan. It is simply a matter of note; the sketch plan does not propose construction which would increase the non-conformity. • The words ‘grass’ and ‘gravel’ are typed here and there on the sketch plan, however it is impossible to determine where exactly those surfaces are and how they would be constructed or otherwise improved so as to allow practical and safe use for parking and maneuvering. The ordinance states that parking areas are to be surfaced, but it does not specify what the surface must be, just that it 6 not generate dust. Excepting for the moment that there likely can be no parking on the north side of the house, it would be great to see for example porous pavers in and through which grass could grow, or a gravel sub-base on which grass is allowed to grow. Whether that is proposed here or not isn’t known. It would seem problematic to simply use the existing lawn surface for parking and parking aisles. Regardless, the ordinance specifies that there shall be no parking in the side setback area. • It is not readily possible to determine the degree of ground disturbance. The lot area is said to be 1.35 acres. The degree of disturbance may be approaching a half acre as proposed, though it is clear that what is proposed cannot be developed as drawn. If there is a half acre of disturbance, it would be good to prepare a simple stormwater plan, though it is not clear that one is required. Regardless, erosion control is warranted on site during construction. There does not appear to be a lot coverage limitation in the Zoning Ordinance other than in relation to solar energy facilities. Lot coverage includes buildings and impervious surfaces and is distinct from maximum building coverage, which Danby has set at 25% maximum. [The town should consider determining maximum lot coverage percentages for various zoning districts and uses.] • The zoning ordinance does not specify in detail what is to be shown on a site plan. I shared with Mr. Jordan a site plan checklist that the Town Planner prepared in 2015. The items on that checklist are shown below. They are in line with those usually required by municipalities for site plan submissions. To the extent that the Town may further develop such site plan application requirements and either amend them into the ordinance or be included in an application form and process described by the Planning Board in advance based on the authorities in the ordinance to determine what is to be shown on a site plan, this is a good place to start. I believe that additional guidance would be good for all involved (board, applicants, staff, other agency reviewers, the public) both in regard to lists of what should be included, but also how that information is to be presented and organized. Informational items not included in the list below but which should be considered are things such as: calculations of changes in building coverage, lot coverage, and impervious surface area (including the relevant requirements for that zoning district if any) plus any other specific elements explicitly required by a zoning ordinance (dumpster screening or snow storage areas for example, or other dimensional elements such as yard setbacks). The guidance should also discuss how the Town or the Planning Board wants information to be presented and for what scale of project or site. For a small site with a limited scale of proposed development, a single 7 sheet site plan may be all that is needed. At some greater level of proposed development activity and complexity it becomes necessary to have multiple plan sheets with different types of information in order to properly understand what is proposed, how a site would be changed, and to allow review of plan by the board, town officials, the public, outside agencies and by peer reviewers examining site engineering, traffic, stormwater drainage and other site planning criteria. The 2015 checklist: Ø Project title and address Ø Preparer’s name, address, and contact information Ø Dates (and revision dates) on drawings Ø North arrow, numeric, and graphic scale on drawings Ø Current zoning and zoning boundaries of the site Ø Land uses, adjacent public and private roads, and significant features within 200’ of the site Ø Property lines with dimensions and angles, easements, right of ways, and metes and bounds Ø Existing contours and hydrological and topographical features within 50’ of the site, including drainage and runoff patterns, flood hazard areas, wetlands, and average depth to groundwater Ø Proposed contours and spot elevations Ø Proposed drainage swales, catchments, and other stormwater management controls Ø Erosion control devices during and after construction Ø Existing curb cuts within 25’ of the proposed access to the development site Ø Location of existing and proposed buildings Ø Ground floor elevation of proposed buildings Ø Locations, dimensions, and construction materials of proposed and existing paved areas, including sidewalks, parking, and loading areas Ø Location and materials of proposed site improvements such as walls, fences, gates, and any other architectural features Ø Estimated daily water demand, based on maximum projected use in a 30 day period Ø Existing and proposed utilities, including location, size, and flow direction of water supply lines, on-site wastewater treatment systems and/or sewers, and culverts. Electric, gas, and telephone lines and appurtenances should also be shown. Ø Location of existing and proposed fire hydrants. Ø Location and types of existing and proposed lighting Ø Types and dimensions of existing and proposed signs Ø Types and locations of existing trees within 9” DBH (diameter breast height) and above, and the outside dimension and location of any large shrub mass on or within 20’ of the site Ø Location of any existing vegetation to be removed 8 Ø Proposed planting plan and planting schedule, including plant species and variety, size, and quantity specified Ø Viewshed analysis if property is listed on or is contiguous to properties listed in the Tompkins County Scenic Viewshed Inventory Ø Tree protection during construction Ø Limits of construction Ø Construction phasing lines Ø Construction staging area 8. I have recommended in meetings previously and again recommend that, when the zoning ordinance is updated, that the Town consider requiring site plan review of farm craft beverage uses, whether they are in a County-designated New York State Agricultural District or not. The NYS Department of Agriculture and Markets supports site plan review processes for the types of agri-business and agri-tourism which bring the public onto farms, so long as they are not an unreasonable regulation of agriculture. Further, the Town should take advantage of the County’s Agricultural District review processes to examine how its future land use vision relates to the agricultural districting program so as to recommend to the County that lands be included or excluded/removed to comport with the town’s land use plans and regulations. Also, as illustrated by the present matter, the Town should work to synthesize the Zoning Ordinance with the relevant aspects in the ‘right to engage in agricultural activity’ law. While the town will necessarily continue to be required to interpret and enforce its laws in view of the laws of other agencies and governments, I believe Danby should strive to have its own land use laws and regulations only in one cohesive, internally-consistent document.