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HomeMy WebLinkAbout1980-01-14 r TOWN OF GROTON ZONING BOARD OF APPEALS Public Hearing Held at the Town Hall , Groton , N . Y . Monday - January 14 , 1980 8 : 00 P . M . PRESENT : G . Hoy - Chairman David Berlew Janet Bell E . Hoffmann , Jr . , Attorney for Berlew F . Fouts Neil E . Morris F . Pierson Marilyn M . Morris Frank R . Bell , Attorney for Morris Josephine Bell - Recording Clerk Mr . Hoy opened the Public Hearing and read aloud the Notice of Public Hearing on the application for a use variance by Neil E . and Marilyn M . Morris to operate a retail sales business at 459 Champlin Road , Groton , N . Y . , '- which � was published in the Journal and Courier December 17 , 1979 , a copy of which is on file in the Town Clerk ' s Office . G . Hoy : Neil was issued a special permit last year in January for a small engine repair shop with the following stipulations : noise to be kept at a minimum , encourage off- road parking because of the location and hazards of roadside parking and existing - - - - - - - - - - life and his retail sales are allowed O . K . if he is in compliance with the existing Town Ordinance for the agricultural zone . Would you like to explain your situation to us now , Neil ? N . Morris : Yes , - -I ' m applying for a variance so that I can get into retail sales other than parts and accessories and spark plugs and what have you , mainly due to the fact that due to the zoning I have lost money and have had to take another job in the meantime be- cause I just can ' t make a living just doing repairs and have been losing many sales - - you lose customers , as far as repair work they will go to a dealer who makes the parts and it just comes right down the line - - you can ' t have one without the other and maintain a living doing it full time . We had a lot of tax increases when I put up the new building and in order to make ends meet have had to take another job and business has dropped off so bad I just couldn ' t maintain a full - time - shop without sales too . F . Bell : One point that might be considered with Mr . Morris ' position is if he has an authorized dealership this goes far beyond the right to sell new products because some of the repair work is under warranty and necessarily has to go to a franchised dealer . ' Without - 1 - a � F . Bell : a franchise he is banned from service schools and service manuals . He buys his parts at retail not wholesale prices which means to make a working profit on top of that drives him, price -wise , out of the market and the fact that he can ' t maintain a full - time shop for the customers that go there because he can ' t make a living out of it on a full- time basis . He has been reduced to a few nights a week rather than a 9 -5 day by day basis so the franchise is important for the repair work that necessarily follows the dealership and also more directly involving Mr . Morris as an individual and the Town itself in the year that the business has operated it ' s caused no problem with noise , there is adequate parking , so far as I know , there ' s no on the road parking or hasn ' t been and it puts a working business in the Town rather than forcing it out of the Town or out of the county . A good example would be a man with a chain saw if he has a breakdown he ' s forced to shut down and go to Ithaca or Cortland and tie his operation up until he gets his repair and service . This is not just automotive but chain saws , household , yard and likely motor equipment and , apart from the hardship it involves to Mr . Morris directly , we submit it ' s an inconvenience for the people in the area who have work and do need the service . G . Hoy : Does anyone else have anything at this time ? E . Hoffmann : I ' m Ted Hoffman , a lawyer from Cortland representing Dave Berlew . He owns the adjoining property to theirs , on the north , about a 4 acre lot which is suitable for residential use . I can sympathize with the feelings of Mr . and Mrs . Morris and the sentiments that Frank has just expressed but submit they are not legal arguments for granting this variance . The same arguments could be made by anybody - - if my next door neighbor wanted to make a living and said let ' s put a business in but I think there are three basic arguments that indicate the Zoning Board should not grant this variance . The first is this - - that the petitioner has the burden of establishing to you the undue hardship and difficulties that the ordinance sets forth to justify the Board to grant a use variance of this type . The ordinance itself requires that Mr . and Mrs . Morris establish practical difficulties or unnecessary hardships . Now the law is clear that when they bring the difficulties on them- selves . The practical difficulties represented in your zoning ordinance are not for human beings involved but it ' s directed to the land itself . Practical difficulties or unnecessary hardships that prohibit the land from being put to a proper use . This land is perfectly proper for agricultural or residential use . It ' s zoned agricultural . As a matter of fact when they purchased the property it was for residential use which was perfectly proper then and is perfectly proper now . The law is clear if the petitioners by their own actions bring on the difficulties they are not entitled to a variance . Mr . and Mrs . 2 - C � E . Hoffmann : Morris purchased this from Mr . Berlew for residential purposes . Subsequently they erected a garage and it ' s rather an odd looking garage to be used as an ordinary garage . We examined it and the application says " residential garage " and it looks to me like it was built for a commercial garage and this was done prior to the issuing of your permit on January 9th . After they erected the garage , they then applied for a vari - ance so they could dtilize it for the purposes it was being used for now . Now they seek to expand the business to include snowmobiles and services and it seems to me that any difficulties have been brought on by the petitioners themselves . One further point - - it would seem questionable to me that this Board would have the authority , under the zoning law , to grant this variance . What you would be doing is re - zoning the property and , as you are well aware , you don ' t have the power to amend the zoning ordinance . That has to be done by the local legislation - - the Town Board and not through the guise of a variance . If you grant , what you are asked to do , it is , in effect , rezoning this property so it can be used for the sale of snowmobiles and other vehicles . I suggest this is prohibited and I further doubt the authority of the Town Board , itself , to permit rezoning . I assume it would have to go through the Planning Board to the Town Board and then to a public hearing . It appears to me that this would be spot rezoning , - - there ' s nothing like it in the area . So I suggest you should not , and that you lack the legal authority to , grant the petition even if you sympathize with the petitioners . If they intended to utilize this property for a business they never should have purchased it . The fact is they purchased it as a residential residence . Mr . Berlew , who owns the property next door , opposes it because it would depreciate the value of his property . Isn ' t that one of the things that zoning is all about ? Therefore , on behalf of Dave , and with sympathy to Mr . and Mrs . Morris and Frank ' s position , I oppose the granting of this variance under the circumstances I have outlined . First - practical difficulties and unnecessary hardship have been brought on by the actions of Mr . and Mrs . Morris . Second that this has nothing to do with human beings but the land as you know . When you get a variance - - someone has a unique sized lot - say with 90 ft . frontage - - it is perfectly justifiable under those circumstances to grant an area variance but this is different so I say these difficulties being experi - enced by Mr . and Mrs . Morris have nothing to do with the character of the land and - third - I have a letter here I would like you to file with the Clerk of the Board for your consideration . (Mr . Hoffmann handed Mr . Hoy a letter he had written which 3 - J 4 is attached hereto and made a part of these minutes . ) (He also gave Mr . Bell a copy of this letter . ) E . Hoffmann : What happened first - - Mr . and Mrs . Morris purchased a residence - - second - they erected a garage and thirdly they then , within a few months , applied for a special permit to operate a certain type of business . Now , just one year later , they apply for what I would call an out - and- out rezoning and , further , I doubt the Town Board has the power to rezone . This is a business enterprise in an agricultural district and under your Town Zoning Ordinance it is not permitted . So for those , . and other reasons , I would submit that the Zoning Board of Appeals is without the authority to grant this request and I would respectfully request the variance be denied . F . Bell : If I might have a short rebuttal - - the question of hard- ship that he says Mr . and Mrs . Morris brought on themselves , - - the Board may or may not be aware - - that Mr . and Mrs . Morris for some time operated a full time sales and service outlet of the type sought to be operated here in shop premises on the Salt Road and Route 222 which is on the border of a different zoning category and the Board may be aware that the owner of the property was threatened with foreclosure , was seeking a completely unreasonable price to sell the property and in general had got himself in such a situation it was no longer possible for Mr . Morris to operate his normal business and , in fact , for practical purposes , he was forced out of there without any cause on his part . This occurred prior to the application to allow the business in his own home . The other statement Mr . Hoffmann made that first this Board has no authority to rezone the area - - he misses the point because that is the entire point and purpose of . a Board of Zoning review . The Zoning Board set up basic guidelines that should apply for average operation and for ones that don ' t fit ordinary operations the Zoning Board of Appeals is set up to decide what should or should not be decided in any given case and we ' re splitting words if we say if this Board grants a variance in any part of the Town it ' s spot zoning . . If it does grant a variance it does exactly what the ordinance of the Town and the State have put it here to do . I think it ' s a little presumptious to tell the Board they have no power or authority here . I submit there is a hardship and it ' s squarely in the powers of this Board . Mr . Berlew does own property that is completely unharmed or affected by the Morris ' property . I submit should the Board grant the variance and give Mr . and Mrs . Morris the right to sell there , there would he no change in the use of the operation . The sales in themselves are not - 4 - v � F . Bell : an important issue here but the benefits that follow from dealership are . It gives them access to repair and service schools and reports and bulletins that they cannot get now and has a direct bearing on the services .they :. can render and I submit it ' s a very proper case for considera- tion by this Board . E . Hoffmann : If I may just briefly - - I obviously don ' t agree with my brother Frank . First of all I don ' t believe Mr . Berlew would be here if his property is unaffected . If it ' s next to a building that sells snowmobiles and so on - - there ' s nothing more noisy then them and they certainly create a disturbance and we wouldn ' t be here if we didn ' t feel they would have a dilatory effect . The other two points he--• brought up - - the removal of the business from Harry Adams ' place up there tortbe present location of his business . As I said before the practical difficulties have nothing to do with the difficulties of the property owner - - they have to do with the character of the land and that property has certainly , up until now , been either agricultural or residential . It ' s now sought to be made commercial . Thirdly I can ' t agree with Frank - -when I suggest that this Board is without rezoning power . There ' s no question that this Board has no rezoning power . Read your legislation - and , lastly , I would say you don ' t have to pay any attention to what either of us say . If you have a question on what the law is I would think you might consider getting the opinion of your Town Attorney as to the authority to do what is asked and , assuming for a moment that the Town Attorney says you do have the power , then consider whether it should be granted . Thank you very much . G . Hoy : Any questions from the Board ? Or the people present ? F . Bell : I think it would be unkind to point out that he is an area competitor to the business that Mr . Morris seeks to establish . G . Hoy : Are there any questions at all ? Janet , do you have any ? J . Bell : No . G . Hoy : I guess at this time we ' ll adjourn the hearing . E . Hoffmann : Thank you for listening , I appreciate the time . The hearing adjourned at 8 * 25 P . M . After the hearing the Zoning Board of Appeals held a short meeting to discuss the application for the variance . - 5 - V F . Fouts : I make the motion that the variance be denied as they failed to show practical difficulties or unnecessary hardship other than what has been created by themselves and the zoning ordinance of the Town of Groton specifically restricts re - tail sales of motorized vehicles in an agricultural zone . F . Pierson : I second the motion . G . Hoy : Roll call vote - Janet ? J . Bell : Yes G . Hoy : Floyd? F . Fouts : Yes . G . Hoy : Frank? F . Pierson : Yes , G . Hoy : and I ' ll vote yes . Motion carried unanimously . The meeting adjourned at 8 : 50 P . M . Respectfully submitted , Jo eph ne Bell SO 6 -