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HomeMy WebLinkAbout1998-02-02 Interpretation of abandonment of a non conforming activity TOWN OF GROTON ZONING BOARD OF APPEALS Public Hearing - Monday, 2 February 1998 - 7 : 30 p .m. Board Members (*absent) Others Present Lyle Raymond, Chairman Jas. Baranello for Fran Casullo, Town Atty, Mary Decker Mahlon Perkins, Attorney for Appellant Mary Adams Clara Travis, Appellant John Pachai Joan Fitch , Recording Secretary Steve Thane (Others as attached hereto . ) The Public Hearing was opened at 7:30 p.m . by Chairman Lyle Raymond. L. Raymond: It is the announced time for the hearing, and our missing member (John Pachai) has not appeared and we will begin the proceedings. He will join us if he gets here, I guess. This is a re- scheduled Public Hearing, and I will read the notice : Please take notice that the Zoning Board of Appeals of the Town of Groton, County of Tompkins, State of New York, will hold a public hearing on Monday, February 2, 1998 at 7:30 p. m. at the Town Hall, 101 Conger Boulevard, Groton, NY, for the purpose of considering the application of 10 Cemetery Lane, McLean, NY, for an appeal of a decision by the Code Enforcement Officer under Section 113. 1 (d) and Section 341 of the Groton Land Use and Development Code, which also relates to Sections 300, 401 , and 403 of the Code, whereby it was determined that Kim and Jeffrey Langer could open an eating and drinking establishment at 2 McLean-Cortland Road (Tax Map 38-4- 10) without a site plan review and a special permit and could operate a commercial indoor recreation facility without a site plan review and a special permit. for an interpretation of Sections 302, 341 , 403, 406, and 441 of the Groton Land Use and Development Code. And, for the record, THIS PUBLIC HEARING WAS ORIGINALLY SCHEDULED TO BE HELD ON DECEMBER 15TH, 1997, AND WAS ADJOURNED TO A LATER DATE AT THE REQUEST OF THE APPELLANT. And that later date is tonight, as most of you folks, I think, know. I'm Lyle Raymond, Chairman of the Board of Zoning Appeals, and my other members will introduce themselves. M. Decker: Mary Decker M. Adams: Mary Adams S. Thane: Steve Thane Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 L. Raymond: And our missing member, when he does come, is the Vice Chair, John Pachai. The primary focus of this hearing is an appeal for an interpretation of how several sections of the Groton Land Use & Development Code have been or are to be applied as they relate to activities being conducted at 2 McLean-Cortland Road , the former Elm Tree Inn . As many of those present already know, the ZBA has already acted upon an appeal for an interpretation of several sections of the Groton Code brought by the operators engaged in the activities being conducted at the site. The ZBA's determination on this Appeal was officially issued on December the 9th , which stated that a Site PIan Review was needed. The Appellants, Jeffrey and Kim Langer, have filed a Petition before the Supreme Court in Tompkins County to have the ZBA's determination on December 9th overturned. This action is currently scheduled to take place on February 27th at Supreme Court in Ithaca. However, the Appeal being heard tonight is not by those conducting the activity at the site, but by another party, Clara Travis, Clara Travis owns property adjacent to the site where the disputed activities are being conducted and is engaged in conducting a retail business on this property. The interpretation that Clara Travis has requested relates to nine sections of the Groton Land Use & Development Code . These are in the handout at the table by the door as you came in. If you didn't happen to pick one up, they are over there (reference Document 0202- 1 attached) . The specific sections of the Code that are being referred to here are Section 113 . 1 (d) , Non-Conforming Activities; Section 120 on Definitions of Site Plan Reviews and Special Permits; Section 300 on Purposes of Land Use Regulations ; Section 302 on the Categories of Land Use Activities; Section 341 , Land Use Activities in the various Zoning Districts; Section 401 on Enforcement; Section 403 on Certificates of Occupancy; Section 441 , Site Plan Review and Approval, and relating to that, Section 442 on Special Permits . The testimony given in the Hearing should be specifically related to these sections of the Code. The principal task for the members of the Board of Zoning Appeals at this hearing is to listen to testimony from all interested parties. We may ask questions to clarify that we've understood the testimony being given, or the implications intended by the person giving the testimony. Given the complex nature of the issues being brought here, and the testimony which we will have tonight, we will be deferring our findings on whatever occurs here tonight until a future date . That date will be announced at the close of this hearing when we determine the date . Now we have received communications relating to this hearing, addressed to Francis Casullo, the Town Attorney, in regard to the Clara Travis Appeal in Groton . I will not read the whole thing here, but simply to say that it comes from Mr. Scott Chatfield who , as you folks may already know, is the attorney for the Langers. I can only briefly say, just quickly here, that he indicates in here that the only remedy available to Mrs. Travis is a Motion to Intervene, so he claims, in the Article 78 proceeding. And the rest of his letter is of a like vain if I may interpret it without having to go to the pains of reading the whole thing here in which , if I understand this correctly, he claims that Mrs. Travis does not have a legal position to do what she is asking to do. I will leave this interpretation to our attorney and enter this into the record (reference Document No. 0202-2 . dated 2 /2 /98 , as attached) indicating that we have received this communication . The date on that, Joan , is February 2nd, 1998, and we will make sure that you have a copy to go with the Minutes after this and that all the Board members will have copies of this . Okay, with that, we will open the Hearing, and I think the 2 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 first order of business is to hear from the Appellant in this case , or counsel for the Appellant. Do they have a statement tonight, please? M. Perkins : Members of the Zoning Board of Appeals. J. Fitch: May I have your name, please? M. Perkins : My name is Mahlon Perkins. I'm an attorney representing Mrs. Travis in this matter. My office is in Dryden, New York. This is an Appeal by Mrs. Travis under Sections 113 . 1 (d) , and Section 341 of the Town of Groton Land Use & Development Code. My client appeals from the decision of the Code Enforcement Officer who allowed Sirens to open at the former Elm Tree Inn without first requiring Site Plan Review and a Special Permit. I think it is important to focus on what those sections of the Code say before I deliver my remarks. I know you have them before you, but I think it's important to review them quickly. 113. 1 (d) says "When a non-conforming activity is abandoned (deliberate, voluntary, and actual cessation of activity," and it cites "(City of Binghamton v. Gartell, 90 NYS 2d 556) for twelve consecutive months, the structure and lot may not thereafter be used except in conformance with these regulations. " And I think that a reasonable reading of that is if you've abandoned a non- conforming activity, then after twelve months you've got to comply with the Code if you want to start back up or start anything else back up . And I think you'll hear testimony tonight to that affect—that there had been an abandonment of the non-conforming activity. And the non-conforming activity in this case was an eating and drinking establishment which had never had, to my knowledge, Site Plan Review when it was the former Elm Tree Inn. Now for Section 341 , permits certain land use activities holding with Site Plan Review. As you are well aware, the Elm Tree Inn property is in an M- 1 district, and an eating and drinking establishment requires Site Plan Review and a Special Permit. I'm not here to argue that it's an eating and drinking establishment. On the contrary, I'm here to argue that it's something other than an eating and drinking establishment. My position is, and that of my client is, is that this is a bowling alley, theater, or similar commercial indoor recreation which in an M- 1 zone also requires a Site Plan Review and Special Permit. Now this Board has jurisdiction to construe the Code, including power to determine the application of the Code to a specific property, in this case, the Elm Tree Inn, Sirens. And you also have the authority to review that decision of the Code Enforcement Officer. The decision of the Code Enforcement Officer allowed Sirens to open. He may subsequently have changed his mind and Sirens, in fact, did open . And our Appeal is from that decision which did not require Site Plan Review. Your authority, of course, is derived both from your own Code and from the submissions of the New York Town Law, Article 16 , Under both the Town Law and the Code, this Board has the power to take testimony and to subpoena witnesses . I think the language of the Code and statute is to compel attendance of witnesses which is interpreted to mean subpoena. Sworn testimony of witnesses is important to support central elements of any position which the testimony seeks to advance . And I'll be the first to tell you that the strict rules of evidence don't apply to this Board . You alone will decide how much weight you will give to the evidence that's presented. And it's 3 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 up to you to sort through the conjecture , the comments, the testimony, the documents and exhibits and decide how much weight and credibility you will give to each of those that is presented to you . And I think that you should keep in mind that what I say is not testimony and not evidence. Indeed, what Mr. Chatfield says, whether it be in letter or in person, is not evidence or testimony either. We are strictly mouthpieces for advancing the positions of our respective clients. The Appellant, Mrs. Travis, is here tonight, and she is prepared to be sworn and have her testimony taken under oath . I think it's interesting to note , where are the Langers? Where were the Langers the last time? And that's important. Because so far before this Board in the first ZBA Hearing you had , and presumably tonight , there won't be any sworn testimony to support the position that they are advancing. New York courts have held that the absence of sworn testimony to support an essential element of any position may be critical to that position. All you heard in the first Hearing was the unsworn and unsubstantiated evidence or testimony of Mr. Chatfield . He wasn't a sworn witness, he was just an advocate just like I am. This isn't Mr. Chatfield's Appeal, it's an Appeal of the Langers. After the Hearing, the first Hearing, Mr. Chatfield also sent to you a letter wherein he purports to refine the percentages of gross revenue attributable to entertainment or cover charges, and food and beverage sales. Well, the submission of documents to you, whether they be reports or documents or letters, after the close of the Public Hearing, should have little, if any, affect on your decision. We have courts that have frequently held that the submission of evidence after the close of the Public Hearing when the public doesn't have an opportunity to (unable to hear attorney) . . . so I would ask you to consider carefully. Take what you hear tonight, take the evidence from here tonight and make your decision using the rules that your attorney I'm sure will advise you must apply to this case. We intend to offer you facts and a position and, hopefully, a methodology when you review those facts which will support the premise that Sirens is not an eating and drinking establishment. We believe that you , as a Zoning Board of Appeals, first need to determine what the nature of the present activity is at Sirens. Once you have determined what the nature of that activity is, then you should make a decision about when a Site Plan Review is required . So the first thing we need to do is categorize the activity. The Langers, through their attorney and representations made to Mr. Senter, have suggested that their operation is an eating and drinking establishment. That's a term that your Code uses. It doesn't use bar and grill, it doesn't use food and beverage, it uses eating and drinking establishment. We believe that even if the Langers' operation is in part an eating and drinking establishment, the Site Plan Review and Special Permit are still required by the Code . One method -- we suggest that one method to determine whether or not the primary activity - - and the Code uses the term "activity, " not use -- one method of determining whether the primary activity of the Elm Tree Inn is an eating and drinking establishment would be producing financial records. An income and expense approach provides concrete documentation to support that position . Eating and drinking establishments, as you've heard before, typically employ chefs, cooks, assistants, hosts or hostesses, waiters and waitresses, busboys, and dishwashers. Those businesses must maintain payroll records and tip records, if they have them, and they must report all of their receipts and their expenses. Since it is controverted whether the Langers' operation is indeed an eating and drinking establishment—they would have you believe it is—we would have you believe it's 4 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 something else—we respectfully request that in order to make this determination you should have before you satisfactory proof to sustain responses to the following inquiries. First of all, a record of all the receipts. Not just a summary conclusion of an attorney as to we took in this much money, 77% was food and beverage, and the remainder was cover charges. Where's the proof• Reminds me of the ad, where's the beef? You need to ask where's the beef to support this contention . There should be a breakdown of those receipts by food , beverage, and cover charges. Any eating and drinking establishment could easily do that. They should be able to substantiate expenses for furnishings, including their food storage equipment, their silverware and dishes, tables and chairs, cooking equipment and utensils, food preparation equipment, sanitation supplies, cleaning supplies, and so forth . Those are not complicated categories. They ought to be able to figure what they spent on cleaning supplies, what was spent on food , spent on beverages. Labor expenses likewise can be easily broken down—chefs and their assistants or cooks, waiters and waitresses, busboys, dishwashers, cleaners, and entertainers. It should be easily to pull together what food expenses by each vendor. Likewise, garbage is by vendor. Most businesses can easily produce interim or periodic profit and loss statements . And indeed, most food and beverage operations, or eating and drinking establishments, have menus. We respectfully request that if the receipts from the cover charges in an operation like this are a significant percentage of the total receipts, then the eating and drinking activity has changed . Now that's important, because if it's changed, I think it triggers Site Plan Review. You need not find that live entertainment is the primary activity to find a change in the activity. We believe a close examination of the present activity will reveal that live entertainment was not present before when eating and drinking was the activity that existed, and that existed as a non-conforming activity as it never had a Site Plan Review. In support of our contention that a large percentage of the gross receipts for Sirens consists of cover charges for entertainment, we submit the following: the minimum charged to get into Sirens is $ 10. 25 except when they had their opening special . I will submit to you as evidence , and I 'm sure anyone here can testify to it, this announcement (reference Document No. 0202- 3 attached) about the grand opening. The normal hours are Wednesday to Sunday, 6 p .m. ; regular admission, $6; regular drinks, $4. 25. And I understand from some of my clients who attempted to be guests there that there is a one-drink minimum, so it costs you $ 10 , 25 to get in. Now they don't have a liquor license. That's a change, obviously, from what it was before. That's a change from an eating and drinking establishment to something else . But if the minimum charge is the sum of $6 for the cover and $4. 25 for a Snapple , that's ten and a quarter to get in the door. We suggest that you not be fooled by a suggestion that a charge of $4 . 25 for a single, non-alcoholic beverage is solely related to the cost and profit for the sale of such beverage. It's simply not reasonable to believe that a charge for a beverage purchased at retail for right around a buck, for which you pay $4. 25 at Sirens , is a charge related to the cost and profit for that beverage . Of course , the rest of that is really a hidden cover charge. We submit that even at $2 for the beverage charge, and that would be twice what you could buy at retail for, that comes up with a cover charge of $8. 25 which probably makes more sense. Your own common sense and everyday experiences can lead you to that conclusion . Now we will cite one case for you, and I think this is an interesting case because it gives you what another municipality did 5 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 when there was a change of use. The case is Allies Boulevard Bookstore , Inc. (v. Herbert Cohen et al) . It's a 3rd Department case, 1982 , and the general cite is 90AD 2d, page 935 -- L. Raymond: Joan , did you get that? Our secretary, when you're citing cases, has to -- J. Fitch: I'm going to ask to see him after the Hearing so he can provide me with a copy of his citations. L. Raymond: Okay, M. Perkins : Okay, this was a case out of Broome County. It was cited by Judge Bryant who was a Supreme Court Justice in Tompkins County before he retired . And what this case basically stands for is an inspector went into a convenience store that had been authorized and permitted as a convenience store , and when he went in to do his inspection, he found about 40% of the gross floor area had been set aside for peep shows. And he said to the owner, well, you know, you didn't get a permit for this; you have a permit for a convenience store . This is a change in the use, and he was cited and there was a lawsuit, and finally the Appellant Division said that's a rational basis for coming up with the conclusion that it was a change in use. He applied some basic percentage, some reasonable percentage to what's changed to make a determination. A review of the transcript from your first Hearing held October 23rd, 1997, showed me two uncontroverted facts. First, the former activity at the premises was an eating and drinking establishment. I don't think anybody argues that. And second, neither the Langers, nor anyone else, offered any proof of what the primary activity was at the premises. The only statement in the record in support of their contention that the activity had not changed was the unsupported argument of their attorney. There was no proof of the facts which he suggested . We're going to offer you proof tonight by way of testimony from a neighbor, Mrs. Travis, of some of the things she's observed. Some of the former activity at the premises when it was an eating and drinking establishment may, in fact, continue today. That is, there may be food and beverage available . However, it appears to us that the former activity is now secondary to the principal present activity. Therefore, the new activity, that is, the live entertainment, even if there's food and beverage involved , is either prohibited under the terns of your Code, or else it's permitted with Site Plan Review and Approval. Subject to Site Plan Review and Approval found in commercial indoor recreation activity. Since the former activity of an eating and drinking establishment was abandoned for over a year—Mrs. Travis will testify how long, in fact, the premises were vacant—any activity following that abandonment may only be established in compliance with the provisions of your Code . And that Code, as you know, authorizes commercial indoor recreation, i. e. , live entertainment, conditioned upon obtaining Site Plan Review and a Special Permit. Let me suggest to you that in fact the activity has changed . The primary activity is now live entertainment, with eating and drinking as a distant second . The Langers in their case, and their attorney, produced no evidence to support their contention that the activity has not changed from a prior as an eating and drinking establishment. Indeed, they didn't 6 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 offer you any proof at all. Do not be mislead by the argument that there is no development in this case and, therefore, no need for Site Plan Review. Your own Code defines development as "Any change to improve or unimprove real estate, including to buildings . " It's significant that it's any change to buildings or simply to lots. I suggest here the change here is a change in activity from that of an eating and drinking establishment, now abandoned , to an establishment which offers as its primary activity live entertainment, which we say or suggest you use commercial indoor recreation. We believe there's no ambiguity in the Code, and the present activity requires Site Plan Review and a Special Permit. I believe the Langers should be required to go through Site Plan Review and obtain a Special Permit in a separate proceeding. Now Mrs. Clara Travis, who is the Appellant, is here and is prepared to be sworn and offer you sworn testimony and read statements into the record . L. Raymond. Thank you . M. Perkins : Would like you to swear Mrs. Travis? L. Raymond: Well, this is a new endeavor for me here. How do I proceed on this? J. Baranello: If you want to offer an Affidavit, we can accept that. M. Perkins: She's willing to swear or affirm to the truth of the statements which she will offer. J. Baranello: I think if she wants to offer an Affidavit it would be -- L. Raymond: You think so? An Affidavit? Yes. Since this is not an exercise I've gone through before, I'm not very familiar with what's supposed to be done here. So I'm going to defer to advice from our counsel which indicates an Affidavit from you would be okay. M. Perkins: What is she going to swear to? J. Baranello: Whatever she wants to . If your attorney wants to prepare an Affidavit and submit it, perhaps within a week - - M. Perkins : Why don't we just ask her to affirm under the penalties of perjury that the comments she's about to make are true? J. Baranello: Ask her to do that. M. Perkins : Do you affirm that the comments that you make are true under the penalty of perjury? 7 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 C. Travis: I do. L. Raymond: Thank you . C. Travis: Mr. Raymond, as Chairman of the Board that you are on , I'd like to make some comments and read a short statement. I've been familiar with the Elm Tree Inn which now houses Sirens my entire life . We looked at the building in 1993 when we were seeking a prospective place for our own business . When we looked at it in October of 1993 it was at that time vacant, so it has been at least since that time and, I'm sure, prior to that that it has been unoccupied. L. Raymond: So it's been a period of about four years, 1993, at least four years. Until October of 1997 would obviously be four years when some of these actions were precipitated originally. C. Travis: Correct. I was going to read a short statement. Mr. Chairman and Members of the Board, thank you for this opportunity to present our Appeal on behalf of the people of McLean . We have requested this session to Appeal and ask your reconsideration of your previous decision regarding the Sirens operation at the Elm Tree Inn in McLean, NY. Specifically, we raise in question your finding that it is in fact an eating and drinking establishment as defined under the Zoning Ordinance of the Town of Groton. While you state in your finding that other activities occur there , you have suggested in your ruling that its primary activity is that of an eating and drinking establishment. Our question is, what proof do you have that this is the case? We have heard nothing from the Langers to substantiate that claim beyond the unsubstantiated claim of their attorney that 75% of their gross receipts come from the sale of food and beverage . In our testimony at the previous Hearing, we outlined a list of receipt and expense items which we requested you to verify through properly authenticated records; that is, invoices, canceled checks, and cash register receipts to document this unsubstantiated claim. To our knowledge , at this time , you have not done this and, therefore, have no basis by which to arrive at your finding that this is primarily an eating and drinking establishment. It is our opinion that if the Langers and their attorney genuinely hold to this contention that it is an eating and drinking establishment, then the burden of proof lies upon them and not we, the Appellants; and, furthermore , it is your duty in your role as the arbiter of this matter to require of them a level of evidence to support their claim that this is beyond what we believe you have required so far. We believe that the issue at hand is more than a matter of semantics . As you are aware , your previous decision is being appealed before the NYS Supreme Court. We believe that the finding that Sirens is predominantly an eating and drinking establishment versus that contained in the classification of bowling alleys, theaters, and similar commercial indoor recreation is crucial to our Appeal and, therefore, we are raising the issue here . In support of the claim, we would like to note the following: ( 1 ) The lack of even the slightest documentation by the Langers to support their claim as we have noted above . (2) There exist within McLean at least three other establishment which derive significant amounts of income from food and drink, including consumption on premises, being: J & D Pizza, Big 8 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 Al's Get & Go, and Patchwork & Pies, only one of which we realize lies within the Town of Groton . Of the three, I can tell you for certain that one is not classified as an eating and drinking establishment, and of the remaining two, only one , I believe , would ever be classified as such , and that would be J & D Pizza. Our point is this . Many establishments, including several in McLean , are eating and drinking establishments, but not primarily. We believe the same holds true for Sirens, and to classify it under the Code as such is contrary to the facts and at variance with how other businesses under similar circumstances get classified. A movie theater does not get classified as an eating and drinking establishment simply because it serves popcorn and soft drinks. (3) Sometime back, a group of McLean citizens went one evening to have dinner and view the entertainment at Sirens . We were less than totally successful in doing that, but here is what we observed . Upon entering the bar, we were stopped and told to pay up before going further. The charge was $6 cover charge and $4. 25 for a non- alcoholic drink. Available were non-alcoholic beers, Coke, or similar product, Snapple , and some bottled juices. Even in the very best restaurants, $4. 25 is unheard of for such products. It is clear that this level of prices for a product which , in most cases, can be bought readily at retail for a quarter of this amount is designed to cover costs other than those associated with cost of the product and normal overhead such as for an eating and drinking establishment. It is our contention that the $6 cover plus $4.25 minimum drink cost, totaling $ 10.25 is, in fact, a charge for entertainment and not eating and drinking. In fact, we could find no evidence of anything to eat. There were no potato chips, no pretzels, or even Mr. Chatfield's famous pickled egg. We noted no activity that would suggest food existing on the premises, nor the odors associated with any cooking or the preparation of food . Our contention is that there is no evidence that has been brought before you as a Board that there is any eating taking place there, and a minimal amount of drinking which is exorbitantly priced to cover the costs of the entertainment which is the primary activity. (4) Most eating and drinking establishments have various suppliers and vendors stopping at their premises to make deliveries. Other than the Pepsi truck, we never observe any deliveries being made. It is entirely unlikely that a genuine eating and drinking establishment of the size of Sirens would bring in all of their food , beverages, linens, paper supplies, etc. , solely by personal transport. The other drinking and eating establishments in McLean, previously referenced, all regularly have deliveries being made and with such frequency that even the casual random observer often sees such occurring. We believe there is a case within New York State that supports our claim that it takes more than the presence of food and drink to classify a business as an eating and drinking establishment. We believe that we have presented to you ample evidence derived from within the Hamlet of McLean to support that contention, and that, in and of itself, is sufficient, lacking proof from the Langers to the contrary, for you to reverse your prior decision and to declare it as a bowling alley, theater, and similar commercial recreation. As proof of my documentation, I would like to submit the following . I mentioned earlier when we went to Sirens we were charged $4. 25 when we went to Sirens for a non-alcoholic beverage of our choice . I purchased today, in McLean, four bottles that I will give to you . One was a 20-oz. bottle of Pepsi which cost 88t ; a bottle of Snapple which cost $ 1 . 11 ; an Arizona Ice Tea for 934 , and then a Sunny D for 881 . Being in the retail business, I can tell you without a doubt that the markup, which obviously was already included in 9 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 these items that I purchased today, is a long way from the prices that I just quoted you and what we were paying—almost four times more when we went to Sirens. Obviously the patrons of Sirens are paying for something other than the beverage. I submit to you the beverages, and this is the receipt (reference Document 0202 -4) . 1 will leave you a copy of my testimony also (reference Document 0202 -5) . J. Pachai: I have a question. L. Raymond: We have a question here . J. Pachai: I have a question . You indicated that there is a reference, if I remember the way you phrased it, there's a reference in NYS Law that indicates that it takes more than food and beverage on the premises to -- M. Perkins : That's just one example of the approach that has been used by municipalities when there's been a change in use. J. Pachai: I understood that, but I was thinking more specifically that it takes more than food and beverage on a location to establish that it is an eating and drinking establishment. I thought there might be another case - - M. Perkins : You don't need to go that far. It seems to me that your common experience and own knowledge -- J. Pachai: Whether we do or not, that's strictly a question that I had a curiosity about since the statement was made . I was looking for a case citing or something. M. Perkins: I don't have a case to cite to you . I believe there are cases. J. Pachai: So it's a generalization, basically. L. Raymond: Have you completed your testimony? Yes. Do we have rebuttals to the testimony that's been given tonight? I think we should take a brief recess to consult with our counsel as to how we shall proceed here . We will recess temporarily and then we will get back with when we will proceed. (Recessed for approximately fifteen minutes; reconvened at 8 *21 p.m.) L. Raymond: Sorry for the little delay here, but we did need to come to some clarification how we were going to proceed. At this point, is there any other persons who wish to give testimony? Otherwise then , we've already heard from the Appellant and the Appellant's attorney. If not, we'll close the 10 Town of Groton Zoning Board of Appeals Public Hearing 2 February 1998 hearing and we will have a workshop type meeting at which we will discuss about our findings, based on what we've heard tonight and other information we may get, and we will announce in a public notice of when that next meeting will be, when we will do that. In the meantime , we need to give time for our counsel and so forth to work on some of the things that have been discussed tonight. So I think that's it. Thank you very much for coming. I appreciate it. All persons desiring to be heard, having been heard, the Public Hearing was terminated at 8 *22 p.m. I. Joan E. Fitch, do hereby certify that in the matter of a Public Hearing held by the Zoning Board of Appeals of the Town of Groton, County of Tompkins, State of New York for the purpose o considering the application of Clara Travis, for an Appeal of a Decision by the Code Enforcement Officer under Section 113. 1 (d) and Section 341 of the Groton Land Use and Development Code relating to activities being conducted at the corner of the McLean-Cortland Road and Church Street in the hamlet of McLean, Town of Groton, New York, that the foregoing is a true and accurate transcription of said public hearing to the best of my ability. Jo E. Fitch Recording Secretary Attachmts. : Attendance Sheet ( 1 pg .) Document Nos. 0202- 1 thru 0202-5 a/s 11 ATTENDANcE recorded(T) GROTON ZBA PLANNING BOARD MEETING OF (Your attendance is Representing/Regarding. 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WaC�NrULrm[4VCt.1 l LU zV[ N•nNC"NpU ',r.�rc_`UUC°iyl ,3nL C.,rUUVCVj, C ''HQQ6_u„ WSJrrRv� .LJuC4NJ �LuuaU-1 ,�r�cF �G>>' :�cN vWn�u:uVOV?� !.ASuU'_^ _Unc �S 'mNpG •'o4Nu vrVJNc `y �ra_nVnU L•UU .uS^c4>�+ .ur-J. dCC�l�-,V•NOE,.''�NuN S^J 'cO'^ ''pm4c[=n•.t>�3�3 n , Q�C_uNqVG. C co V U mU a- •UO� wL�,y VNC�Cm=O 0 n A •O VC7 U ° U . A•�W=pNu-.ue2naLUObLun• u uJ'uuNSuum�- '• ''�nvc_'VJuH_'-a-oc'u•o[VnE_nNO4y � or- • '� • go u t L X . . O V CO. Q0. u > O •^ p O L_ J p •p 0 a 4 uO O O OcnT� vU =N E to Q oo o •0< °u nVO E to> > °U 'p •y 4 p O 4U ex U •Q n 4 V •_ 4t n R. m L u �O VO-r n Na E ` N Q o E u ° to ° > �ao E •u u u O oo o o� U ��2 u ._ u c 0 � > o 3 au m •o a u W °n O y c X I j ' ' UO i cO t ° 0E u a to C hto U qt qj T .pu> a u o m T E o S UO a Cl. � U E aE o uc . E v[ m"a > � 0 c to ' u 4u n ° o " c o 4 o c � to W -0n • 01 nn . 0 0. gC ^ � Sa L O p� = OnO OO O 0. MI. U CIO0. 00 toIS uom0 LpE py o R -E 4 u c n o •� 0 mS n. a ,0 00 Ou c O O ° on c EOoOop0 [u o u E 0. u aC O o O � E pUp pcn a wu V nu� � S „o > 9Z 2uu E u $a` an � u a s u E •1�ii�ir,r -I 1 p O yy ..f < U •.I 7p 02 / 02 / 1998 14 : 28 3156968953 SCOTT CHATFIELD ESQ PAGE 82 Scott F . Chatfield Attorney at, Law 48 State Street • P. O . Box 614 •_ Tully , New York 13159 Telephone (315) 696-8951 Sheldon W. Demsky Of Counsel VIA FAX February 2 , 1998 Francis J . Casullo , Esq . 16 Tompkins Street P . O . Box 828 Cortland , NY 13045 Re : Clara Travis Appeal - Groton Dear Fran : Thank you for the . copy of Mrs . Travis ' application . I draft this letter to . state my client ' s position relative to this matter and I request that you cause this letter to be entered into the record of the proceedings . The decision which is the putative basis of thi ; appeal was reversed by the Code Enforcement Officer before this � -apeal was fiL'. ed . Accordingly , there is nothing to appeal . In b ') . nt cf fact , the decision of the Lode Enforcement Officer which i : cersec the decision which is the subject of the Travis appeal . wa : itself the subject of an appeal by my clients . The Zoning Board of Appeals has rendered final decision on my client ' s appeal and that decision is the subject of an Article 78 proceeding . The appeal by my client to the Zoning Board of Appeals dealt with these same issues and constitutes Law of the � Case . In short , . there is simply nothing to appeal . The law does not allow the Zoning Board of Appeals to render advisory opinions . Because there is no of or controversy " and bedause the decision being appealed was reversed before the appeal was taken , the Zoning Board of Appeals has no jurisdiction to hear or decide these issues a second time The only remedy available to Mrs . Travis is a Motion to Intervene in our Article 78 proceeding . The decision which Mrs . Travis is appealing ( thetone which said site plan approval was NOT required ) was made substantially more than thirty ( 3077ays prior to her appe :: l and it is therefore untimely pursuant to Section 267 - a { 5 ) . Fax # (315) 696-6953 02/ © 2 / 1998 14 : 28 3156968953 SCOTT CHATFIELD ESQ PAGE 03 Page 2 Francis J . Casullo , Esq . Re : Clara Travis Appeal - Groton Lastly , in order to maintain an appeal a party must show that they are an aggrieved party . The only decision of the Code Enforcement Officer which is. . both still viable ( and therefore the basis of an actual case or controversy ) and made within sixty ( 60 ) days of the appeal is the decision that site plan approval is necessary . dr Travis she were , she neee is presumptively hidd to aggrieved by thatecision and even join our appeal of that decision . For the reasons set forth above , we formally object to the maintenance of the pending proceeding . Very truly yours , Scott F . Chatfield Attorney for Mr . & Mrs ,.. . 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V. \�/ U. 4 ., �Y Y It r 3.IrrII n l/ 1. Lid R 1.: 8 �•,' dr l < 1 ) V 1 � IrkT b tq I} '.r -i tl It _j�S •C ) /mil ` .j �.. .�� r'_. c � � fi - JJ �!� � y ' �-.� •� s f l�w �j,� .J•` . ihlll .' �G{rJ.J.) '� ��� . c . _ I' Irk) Ij c , f � 7 ir` `. �.� a o it S..' ( - ff ( r - • 1 � Irt l It It kdf C _Ork l V I Doc /)40 . 1 - rPsi .. � RUIN'__it r`1 Im. - i i ': nit. • -•J_,'- - + 'yT 5:1:- irUi•i �;% r It inj Pepsi =_.! ; - ,i } _ :: 14 "mot , ; ,;: NAey1e ' A ice• r� _ --------._--- oil r JIJ t.�. F: . _ . . Testimony Submitted to the Groton Zoning Board of Appeals February 2 , 1998 Groton, New York Mr. Chairman and members of the board, thank you for this opportunity to present our appeal . We have requested this session to appeal and ask your reconsideration of your previous decision regarding the Sirens operation at the Elm Tree Inn at McLean, NY. Specifically, we raise in question your finding that it is in fact an "Eating and drinking establishment" as defined under the zoning ordinance of the Town of Groton. While you state in your finding that other activities occur there, you have suggested in your ruling that its primary activity is that of an "Eating and drinking establishment" . Our question is, what proof do you have that this is the case? We have heard nothing from the Langers to substantiate that claim beyond the unsubstantiated claim of their attorney that 75 percent of their gross receipts come from the sale of food and beverage . In our testimony at the previous hearing, we outlined a list of receipt and expense items which we requested you to verify through properly authenticated records, that is, invoices , canceled checks and cash register receipts to document this unsubstantiated claim . To our knowledge you have not done this and therefore have no basis by which to arrive at your finding that this is primarily an "Eating and drinking establishment' It is our opinion that if the Langers and their attorney genuinely hold to this contention that it is an "Eating and drinking establishment", that the burden of proof lies upon them and not we the appellants ; and furthermore that it is your duty in your role as arbiter of this matter to require of them a level of evidence to support their claim that is beyond what we believe you have required so far. We believe that the issue at hand is more than a matter of semantics . As you are aware your previous decision is being appealed before the NYS Supreme Court. We believe that the finding that Sirens is predominantly an "Eating and drinking establishment" versus that contained in the classification, "Bowling alleys, theaters and similar commercial indoor recreation" is crucial to the appeal and therefore we are raising the issue here . In support of our claim, we note the following : 1 . The lack of even the slightest documentation by the Langers to support their claim as we have noted above . 2 . There exist within McLean at least three other establishments which derive significant amounts of income from food and drink including consumption on premises ; J and D Pizza, Big Al ' s Get and Go and Patchwork and Pies . (Only one lies within the town of Groton . ) Of the three I can tell you for certain that one is not classified as an "Eating and drinking establishment" and of the remaining two only one, I believe, would ever be classified as such - J and D Pizza. Our point is this, many establishments including several in McLean are "Eating and drinking establishments", but not primarily. We believe that the same holds for Sirens and to classify it under the code as such is contrary to the facts and at variance with how other businesses under similar circumstances get classified. A movie theater does not get classified as an "Eating and drinking establishment" simply because it serves popcorn and soft drinks . 3 . Some time back a group of McLean citizens went one evening to have dinner and view the entertainment at Sirens . They were less than totally successful in doing that, but here is what they observed . Upon entering the bar, they were stopped and told to pay up before going further. The charge was $ 6 cover plus $4 . 25 for a non- alcoholic drink. Available were non-alcoholic beers, Coke or similar product, Snapple and some bottled juices . Even in the very best of restaurants $4. 25 is unheard of for such products . It is clear that this level of prices, for a product which in most cases can be bought readily at retail for less than half the amount charged here, is designed to cover costs other than those associated with the cost of the product and normal overhead for an "Eating and drinking establishment". It is our contention that the $ 6 cover plus $4. 25 minimum drink cost, totaling $ 10 . 25 is in fact a charge for entertainment and not eating and drinking. In fact, we could find no evidence of anything to eat. There were no pretzels, potato chips or even Mr. Chatfield ' s famous pickled egg. We noted no activity that would suggest food existing on the premises nor the odors associated with cooking or the preparation of food. Our contention is that there is no evidence that has been brought before you as a board that there is any eating taking place there and a minimal amount of drinking which is exorbitantly priced to cover the costs of the entertainment which is the primary business activity. 4. Most eating and drinking establishments, have various suppliers and vendors stopping at their premises to make deliveries . Other than the Pepsi truck we never observe any deliveries being made. It seems highly unlikely that a genuine "Eating and drinking establishment" of the size of Sirens would bring in all of their food and beverages , linen, paper supplies, etc . . solely by personal transport. The other "Eating and drinking establishments" in McLean, previously referenced, all regularly have deliveries being made and with such frequency that even the casual random observation often sees such occurring. We believe that there is case law within NYS that supports our claim that it takes more than the presence of food and drink to classify a business as an "Eating and drinking establishment. " We believe that we have presented to you ample evidence derived from within the hamlet of McLean to support that contention and that it, in and of itself, is sufficient, lacking proof from the Langers to the contrary, for you to reverse your prior decision and declare it as "Bowling alleys, theaters and similar commercial indoor recreation".