HomeMy WebLinkAbout1997-11-24- Sirens c
TOWN OF GROTON ZONING BOARD OF APPEALS
Discussion Meeting - Monday , 24 November 1997 - 7 * 30 p . m.
Board Members (*absent) Others Present
Lyle Raymond , Chairman Fran Casullo , Town Attorney
Mary Decker Joan Fitch , Recording Secretary
Mary Adams
John Pachai
Steve Thane (Others as attached hereto . )
The meeting was Called to Order at 7 : 30 p . m. by Chairman Lyle Raymond .
L. Raymond: The first order of business is the approval of the Smith -Burdick minutes from the last
session that we had on March 17th . That was the last business meeting we had . Does everyone have
a copy of the minutes? Do we have a motion to approve the minutes from March 17th?
M. Decker: I so move .
L. Raymond: John made the second . Okay, do we have any discussion? Okay, does everyone
approve? (All members present indicated they were in favor.) So the minutes are approved and we've
taken care of the old business . We' ll get on with tonight's business . As you know, the purpose of the
meeting tonight is to discuss our interpretations or findings based on the testimony and other
information that we have collected on this case (Sirens/ McLean) . I need to state for the record that
this type of interpretation does not require a SEAR review.
F. Casullo: It's a Type II action .
L. Raymond: Type II . Thanks, counsel . And I think also for the record, does everyone want to state
that they have read the testimony and other information that bears on this case? (All members present
affirmed that they had read same .) Everyone has so affirmed that they have looked over the testimony .
Now in terms of how we want to proceed here , we have the actual request as you know, which was to
interpret specific sections of the Code as it applies to the activity in McLean . And there were five
sections of the Code that were listed there . Does anyone have a preference as to the particular order we
want to take those sections in?
M. Decker: (Not audible to tape or secretary. ) . . . but you probably know the sections of the law . . .
L. Raymond: My feeling is that Section 341 is the key one . And if we deal with that first, then the
other sections will kind of fall whatever we decide on that.
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
Code? The activity we're talking about here before we take that next step . (All members indicated that
they agreed it was an eating and drinking establishment under the Code . )
M. Decker: Eating and drinking establishments including drive -in restaurants .
J. Pachai : A little bit of research that I did that indicates that - - this is from the National
Planning Federation and it's a series of definitions. An " adult cabaret" - - nightclub , bar, restaurant, or
similar establishment that regularly features live performances that are characterized by the exposure
of specific anatomical areas, or by specified sexual activities or films, motion pictures, and so on . I'll
turn that in for the record . You can just cite the source and the page (page 6 of definitions) . It is an
eating and drinking establishment and whether it goes beyond that or not unfortunately we have no
specific evidence . We understand what happens there . And they are serving food and beverage . So
from that element , they are an eating and drinking establishment. So I would have to agree .
M. Decker: Yes. That falls under that -- that category.
L. Raymond: All right. So our second finding then is going to be that they are an eating and
drinking establishment with the proviso, as John has indicated , that the possibility exists that
they are a lot more than that.
J . Pachai: Yes . And they do offer - - as the definition -- the definition there indicates that a
restaurant - -
M. Decker: Is typical of entertainment with that type of - - there's entertainment here .
L. Raymond: And our testimony that we have in the record indicates that .
J. Fitch: So your second finding is that they are an eating and drinking establishment L. Raymond: With other activities accompanying it. This information -- counsel will take our
information and write this up in legal terms later for us to approve on the 9th , or disapprove or
whatever. Okay. So we're to that point then . We feel that it is an eating and drinking establishment
as defined in the Groton Code . That seems to be pretty straightforward ; no ambiguity to this thing at
all . Well, it seems to me that the next thing that struck my attention, because of the extensive
testimony that was given , and the location, it has to do with the M- 1 District. And the heading for the
M- 1 District -- let's review that again . We've all looked at it and we've just looked at it again .
M. Decker: Section 344 - - the intent - - 344 , 1 ?
3
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
years ago, if we were to say that this new business didn't require a Site Plan Review, it would be like
saying if McDonald's comes in and buys a mom and pop donut shop and sets up a business and says
we don't need a Site Plan Review -- I mean , it would be ludicrous for us to say that they would not
require Site Plan Review and we'd be opening ourselves to other businesses -- other changes made at
business locations being somehow exempted from Site Plan Review. We don' t want to set that
precedent. That's primarily What I have to say about that .
M. Decker: Read the definition - - that states it very clearly ( inaudible) . . . abandonment because
that's what I feel . . . (inaudible) .
L. Raymond: I think so . That's a good one .
J. Pachai: Interim period, right?
L. Raymond: Yes, John . You've raised several things here in one felt swoop . Let me break them
down here and take them a bit to a time , each one , and make it a finding here -- for the rest of us to
chew on here for a minute . The first one you talked about is one that I also was looking at here which
I think Ms. Campbell had mentioned in her testimony. And that is the fact that this thing had been
vacant for a period of several years at least . It's been at least three years. And , therefore , when a
property has been vacant for that period of time , that in effect - - any new activity that starts up there is
exactly that. It's a new activity exactly the same as any new business anywhere else .
J. Pachai: When our own Code -- this is outside of the topics which we're covering, but it gives us
an idea of the intent of the Code - - that if you had a business in an area that when the Code came into
effect -- in other words, when the Code was first written it said you can' t have a dog kennel on Lick
Street - - a certain area of Lick Street. If you had a dog kennel, basically you ' d be grandfathered in . But
if the kennel was not - - if there was no business activity there for three years , our Code would consider
that abandonment of the activity so someone else could not come in and take advantage of your
allowed non-conforming use . So , if anything , that provides a little idea of what the intent is of those
who drafted the Code .
L. Raymond: I wonder if it might pay to read this definition in here that we have here ,
abandonment. One definition is to cease or discontinue a use or activity without intent to resume , but
excluding temporary or short- term interruptions . Obviously, this was not a short- term interruption .
Three years in no way whatsoever can be considered a short- term interruption in my opinion . How
about you guys? (All nodded affirmatively. ) In effect, this place was up for grabs . No one was using it
at all . So I think that would be vacant and / or abandoned . I think John's right here .
S . Thane : So that's our fourth finding?
5
1
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond: Well , we're still on 341 .
J. Pachai: I looked all through the Code and I don't see any exclusion clause -- I don' t see where
any business is excluded from having to have a Site Plan Review under any conditions or any
circumstances if, in fact, the use in a particular zone calls for a Site Plan Review. And if we stick to or
take into consideration what the attorney for the Appellants indicated, Mr. Chatfield , and what the
attorney for the Dryden School Board indicated -- in fact, Mr. Chatfield spent fifteen minutes saying
you take the Code the way it's written - - you take the Code the way it's written . There's nothing in here
that says that his client should be excluded from the Site Plan Review process .
M. Decker: It's where you put the emphasis -- it's strict construction of the Code . That's where
we're coming from right here and now. This is the way we're interpreting it .
L. Raymond: It doesn't allow for exclusions .
M. Decker: I don't see that it does allow for any , it's true .
L. Raymond: It seems very clear. It's very simple . Do we all agree with that? (Everyone
acknowledged agreement.) So we have about seven or eight findings here , all relating to Section 341
which is where we started .
J. Fitch: I'm only up to Finding #4 .
M. Decker: That's what I've got, but I may have put them down - -
L. Raymond: Well , I don't have the last two or three here . But the fourth one I had down here was
the fact that Commercial activities would require a Site Plan Review. The previous one before
that was that we had indicated that it was very clear that non- residential activities in the M- 1
District require a Site Plan Review. Then we went to there and said commercial is a non-
residential activity so therefore it follows that -- and then, ' after that, we went into the discussion
about the vacancy and abandonment and the fact that this site fits that criterion exactly . This was a
new business starting up , just as if nothing else had ever existed there . And then we went into the one
that John was talking about which had to do with the fact that nothing is excluded as far as we can
see .
J. Fitch: It would help for the minutes' sake if when you make a finding , you would say - - so
our finding would be that - -
7
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
J. Pachai: I would consider that two things -- a requirement of the Code to make sure that the
facility or structure is, from a health standpoint, safe . And , secondly, it's a disclaimer in that we don' t
have the authority to issue a -- it's out of our jurisdiction.
L. Raymond: All we can do is simply reiterate what the Code obviously says - - that the Code
Enforcement Officer can't issue a certificate for a new eating and drinking establishment , in this case ,
until the Site Plan Review and issuance of a Special Permit,
J. Pachai: Joan , could you read back or try to pick out a little bit of the previous finding prior to -
L. Raymond: Are you talking about Section - -
J. Pachai: Section 406 .
J. Fitch : The last one I have is your Finding # 9 L. Raymond: You're talking about 403?
J. Pachai: 403 ,
J. Fitch: Yes. This falls within the purview of Site Plan Review and Approval and a Special
Permit is required .
J. Pachai: Can you read that one more time?
J. Fitch: This falls within the purview of Site Plan Review and Approval and a Special Permit is
required .
L. Raymond: That's Section 302 . . Section 403 is what John wants - - Certificate of Occupancy .
J . Fitch: Okay. The finding you came up with is that a Certificate of Occupancy would be
required and the attorneys made that a part of their comments.
L. Raymond: Yes . If a permit is required . What was it that was bothering you , John?
J. Pachai: Well , I'm not sure if we provided enough support is what I was concerned about.
J. Fitch: Lyle read that no building or mobile home is to be occupied without a Certificate of
Occupancy from the Code Enforcement Officer.
9
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond: Yes, until you get to 442 which is the Special Permits. Do we have any other findings
here that we want to put in here? That' s the last one that the Appellant asked us to review and asked
for interpretation for. She asked for 302 -- we did 302 . 341 , 4419 403 , and 406 - - yes. So we've covered
all the ones that they asked for interpretation of. And we've. looked at all the testimony and it seems to
follow what we learned. That's how we feel it should be applied. Is everyone in agreement with that?
(Everyone was in agreement.)
J . Pachai: To keep us in order and make sure that we have made our case in clear legal terms, we
should turn these findings over to the Town Attorney .
L. Raymond: Yes. Does someone want to make a motion for a resolution to turn these over to the
Town Attorney to be written up in which case , then , we will make final approval of these -- or
disapproval or modifications thereof -- on December 9th .
J. Pachai: I so move .
L. Raymond: John so moves -- Steve seconds it. Everyone in favor?
The Recording Secretary recorded the votes as follows: Ayes - Adams, Decker, Thane,
Pachai, Raymond . Nays - 0.
Motion carried . Okay, we'll turn it over to the counsel for that and I guess what we need to do since
we're going to follow through on this at our December 9th meeting and do the final
approval/ disapproval, whatever, we need to not close this meeting, but adjourn it, I assume, don't we
Fran?
F. Casulio: I would close the meeting, Lyle . The only thing you have to do is state the date and
the time and the place of the meeting on December 9th -- the date when you're going to take a formal
vote on the Zoning Board's decision .
L. Raymond: All right.
J. Fitch: December 9th at 5 p .m .
L. Raymond: Thank you , Joan . You've already got .it, so I don't have to look it up .
F. Casullo: Right here?
L. Raymond: Yes , right here . That's Tuesday night, the night of the Town Board meeting?
F. Casullo: Yes.
11
ATTENDANCE SHEET
ZBA PLANNING BOARD MEETING OF - 1 = Z !Z- 2 Z
(Your attendance is recorded in the meeting minutes .)
PRINTED NAME: Representing/Regarding , Complete Address
Vol 17
:•�: tip ir:�-,-�_e� �� � ���, < - � -
_ n~ �v
;f
�' _ x 4)/ t
C '
If
All
- -
n
�jl J
�� :J�ir!!f- ':✓ �✓/� .-GU G�� =•% ' �.�-/,.(/;j,.i' �Z�!`GL ;�i+` .'7 . 7 G'Yi �'alf .�� �
' LI
r. Oyl
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond* That's why it's at five o'clock. We're going to do it before the Town Board meeting.
Well , unless there's any further business , we will close the meeting at 8 : 18 p .m. And we're done .
Joan . Fitch
Recording Secretary
Attachment: Attendance Sheet
Note: Draft, 12 pgs. , faxed to F. Casullo on 12/ 2 / 97 .
12
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond: Well we could add, which I didn't read here , John - - maybe that would satisfy you , too .
The second sentence there in the first paragraph -- " Upon application , the Code Enforcement Officer
shall issue a ' Certificate of Occupancy when he is satisfied that the proposed use complies with this
Code, and that buildings have been erected and the site developed in . accordance with submitted
plans. " This means, I assume , Site Plan Review,
J. Pachai: And, in this case , the proposed use does not comply with the Site Plan Review process
which appears to be required and has not been followed through with . I'm satisfied if you throw that
in .
L. Raymond: Yes. That's true .
J. Fitch: Then you went to Section 406 ,
L. Raymond: Then we went to Section 406 which had to do with the Health Department.
J. Fitch: IYour finding was that you had no jurisdiction?
L. Raymond: Well , yes, but I felt that we should simply reiterate here that a Special Permit cannot
be issued until it' s in compliance with the rules and regulations of the Health Department .
That may be . after the fact in terms of this establishment; nevertheless, I think we need to follow the
letter of the law here as indicated in our Code . Now, the last section they wanted an interpretation of
is Section 441 , And , of course, Section 441 is this huge section that has all of the steps in the Site
Plan Review process and its approval. It also has applicability here. And obviously what we're talking
about comes under 441 . 1a, the Special Permit, which states . that "Certain activities identified in Article
3 of the Land Use Regulations, as permitted with the Site Plan Review because of the nature , location ,
and affect on the surrounding environment, warrants detailed evaluation of a Site Plan before
development is allowed. " And we've already indicated in an earlier finding that we feel this falls under
the definition of development which ties in with this I would think. So I guess that would be a
finding (# 12) . Otherwise, what can we say? If we've decided it needs Site Plan Review, then we find
that all provisions of 441 . 2 apply as determined by the Planning Board shall we say. Obviously,
there' s so many things listed in here , some things would not fit this facility.
J. PachaL Section 441 provides guidance to both the applicant and the Planning Board as far as
procedures and requirements, and the steps involved in the process .
M. Decker: Under 442 you've got Special Permits.
10
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
J. Pachai: There are actually two there -- one , there's nothing in the Code that provides for an
exclusion from Site Plan Review if, in fact, it's listed as required by the Code for a use in a given area,
given zone, as requiring a Site Plan Review . And the second element is that, according to two counsels
who submitted evidence at the public hearing that the Code , in fact, should be taken as written - -
L. Raymond: Strictly interpreted J. Pachai: Strict construction - - given that and given the previous finding, it also supports the
contention of the Code Enforcement Officer that Site Plan Review is required.
L. Raymond: We want to make that another finding that that supports the CEO. Make that
Finding # 8 . Those are eight findings we've got here on Section 341 . Before we leave that section and go
on to the other ones, does anyone have any further things they want to introduce here in terms of
findings? (No response . ) I think we're okay. Let's move on to the next section . Why don' t we go back
to Section 302 , it seems obvious , and they asked for an interpretation . That's the one that lists three
types of land use activities permitted with Site Plan Review and Approval , and prohibited. Well, it
seems obvious, doesn't it, that given the findings we've already come up with in Section 341 that this
falls within the purview of Site Plan Review and Approval on direction of the Planning Board,
and so forth , as stated in Section 302.
J. Pachai : And a Special Permit is , in fact, required.
L. Raymond: Then the next section would be 403 which is the Certificate of Occupancy. And
Section 403 indicates that no building or mobile home shall be occupied without first obtaining a
Certificate of Occupancy from the Code Enforcement Officer _ and that each property owner should be
responsible for compliance with all the provisions . Well, given what the findings are we've already come
up with , do you want me to say it? It appears that a Certificate of Occupancy would be required.
Obviously, and I believe the attorney for the Appellant, Scott Chatfield , made that very point in his
testimony that if a Building Permit is required , a Certificate of Occupancy is required . And he was
trying to make out that no permit was required, of course , and that no Certificate of Occupancy was
required . Well, we've indicated in our findings that we see otherwise , so therefore such a certificate is
required . That would be our finding. Is everyone agreeable with that? (All indicated agreement. ) Well ,
let's go on to Section 406 then , which is another one they asked for which was -- on page 62 -- which
has to do with approval of the County Health Department. And it says that no Special Permit issued
under the terms of the Land Use Regulations is valid unless the action is in compliance with
the rules and regulations of the Tompkins County Health Department.
8
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond: Yes . Which means then that you have a new use , a new business that started up
here . So our finding would be then that this was vacant or abandoned and this was a new business
that started up as if nothing had ever been there . And we have testimony from the attorney for the
school , Ms. Campbell , who raised that very issue . Okay. In this case then -- also that you raised,
John , here. -- was that in addition to that, it's not only a new activity, but it's a change of use from
what it was. Because , obviously, from vacant or abandoned to using it is a change of use . And a
change of use, then , would require a Site Plan Review and a Special Permit. And that gets us into
another part of the Code here , that both attorneys who testified raised . And that had to do with the
definition of development. What constitutes development - - there was a meaning raised that the Site
Plan Review and the Special Permit only come into play where development has occurred . So I think
what we need to do here is to turn to our definition of development that we have in the Code - on
page 6, Section 120, Definitions . And it says development is "any change made to improved or
unimproved real estate , including to buildings or other structures , or site modifications. . . " And , first of
all, it seems to me - - again , you guys make comments on this if you feel I'm off on the wrong track here ,
but it seems to me that if you read this correctly, this is a change to real estate because the thing was
vacant, it was abandoned , and there's been a change - - there's now a use in there . That's a change .
And also , counsel for the Appellant indicated that he thought that what was stated here to buildings,
other structures, or site modifications, that that was the only thing that applied . However, the
attorney for the School District (Dryden) , Ms. Campbell, indicated in the testimony that the word
including only meant as an example . It was only meant as examples and was not limited to that. And
do we want to, in our opinion , interpret it to mean exactly that? The definition of development means
that we have a change and it's not limited to just the things that are cited there .
J. Pachai: That's how I would read it.
S . Thane : I think the key word is any. Any change .
L. Raymond: That's a good point, Steve . I agree with that. Yes, any change - - those are the key
words. Any change whatsoever.
M. Decker: He was limiting it to --
L. Raymond: He was trying to limit it to only the things listed there .
M. Decker: That was his interpretation .
L. Raymond: Well, of course .
J . Pachai: Can we jump back? I 'd like to jump back to 341 . I had one more - -
6
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
L. Raymond: On page 57 , Obviously we're talking about the application of our Code in that district
specifically when you get down to this point here . And we have a statement of intent in Section 344A
that indicates that M- 1 is intended to be primarily a Residential District. There's no question about
that . And that non-residential activities are allowed , subject to -- and this is out of our Code here -- " a
wide range of controls to preserve land values and protect the quality of the environment. " It seems to
me that's a key statement in our Code . What do the other members here J. Pachai: That basically explains why the Code requires for that particular activity a Site Plan
Review and Special Permit process.
M. Decker; Right . Because it's the activity L. Raymond: In other words, let's put it this way -- the finding could be , it's very clear, what the
Intent of the M- 1 District is that non-residential activities require a Site Plan Review and a
Special Permit. Therefore , -- well , no, maybe we better stop there and make it a second finding -- we'll
make that a finding, number three . We are going to reiterate what the purposes of a medium M- 1
District is. That is our third finding. It's very clear what the intent is, and that non -residential
activities require a Site Plan Review and Special Permit. That's stated forthrightly in our Code ; there's
no if, ands, or buts about it. Now, the next question would be then -- commercial activities -- that's
what I'm jumping to here - - within the M - 1 zone then . Obviously, this is a non-residential activity.
M. Decker; That's right .
L. Raymond: And so therefore that means that this particular type of non-residential activity, a
commercial one , requires a Site Plan Review and Special Permit, Again , I don't see any ambiguity in
this thing, do you ?
M. Decker. No .
L. Raymond: I don' t see it that way either. John?
J. Pachai : Yes, this is regarding Section 341 and the idea that the appellant' s attorney presented
that it was a continuance of a previous existing business . First of all , and I don' t know if everybody
agrees with me, but it's been at least, I believe, three years since it was occupied for any type of
business . And that alone would preclude considering it as a continuation of an existing business - - or
a previously existing business. Secondly, the only way I could see a continuation of a business as
being somehow free of having to go through the Site Plan Review process is if it were the same
business, the same operation changing hands . And this clearly is not the case. Lastly, the nature --
pardon me . The business that is there now, not being the same business that had been there three
4
Town of Groton Zoning Board of Appeals Discussion Meeting 24 November 1997
M. Decker. Right .
J. Fitch: These are the same sections as referred to in the Public Hearing Notice?
L. Raymond: Yes . Section 341 deals with permitting land use activities and under what conditions
and things like that . I think that my suggestion would be that we start dealing with the stuff that
seems most obvious first and which there didn' t seem to be much ambiguity . What do you think? And
take it from there .
S . Thane : Sure .
M. Decker: Straightforward approach .
L. Raymond: Well , obviously, Section 341 - - the key land use in there is the eating and drinking
establishment. That's the only land use that's really at issue , and the other land uses aren't really at
issue here . Page 51 , 52 . There it is .
M. Decker: But I think you need to start with this basic item -- each district -- then over here to
eating.
L. Raymond: Yes , Okay. Activities permitted in the Town of Groton specifies basic districts in which
each activity is permitted . So,
M. Decker: But it also states farther on down that the part that we have to state that's quite
important is that each activity is subject to certain general classifications -- but where an asterisk is
indicated , that the site plan review is required . I think that's important. That' s the meat and potatoes
of that.
L. Raymond: Yes . That's a pretty unambiguous statement. We'll make that our finding that
each activity is subject to all of the general and specific regulations related to the district in
which the land use activity is located. And the asterisk indicates Site Plan Review is required .
M. Decker: Right,
L. Raymond: That's pretty obvious. All right, so we'll make that the first one here . So that leads us
to the eating and drinking establishment. I think that it says eating and drinking establishments in
the Groton Code require Site Plan Review and issuance of a Special Permit. Maybe we better backtrack
here . First of all , do we conclude that that comes under eating and drinking establishment under our
2