HomeMy WebLinkAbout19-01 Ruzicka Appeal Findings & Decision
FINDINGS AND DECISION OF THE TOWN OF LANSING
ZONING BOARD OF APPEALS
In the Matter of the Application of Lisa Ruzicka, Tim Farrell, and Citizens for a Healthy Salmon
Creek Watershed to appeal the decisions of Code Enforcement Officer Lynn Day pursuant to Town
of Lansing Local Laws 6-2009, 1-2015, and 9-2016.
FINDINGS OF FACT
1. Lisa Ruzicka, Tim Farrell, and Citizens for a Healthy Salmon Creek Watershed
(together, the “Appellant”), filed a petition on December 10, 2018 (the “Appeal”) with this Board
to appeal the following:
a. Code Enforcement Officer Day’s compliance with Local Law 6-2009, regarding
Stormwater and Erosion Control (the “Stormwater Law”), prior to issuing the building permit
dated October 17, 2018;
b. The Zoning Interpretation and Determination from Code Enforcement Officer
Day to the Lansing Rod and Gun Club (“LRGC”) dated October 12, 2018; and
c. Code Enforcement Officer Day’s compliance with Local Law 9-2016, regarding
Flood Damage Prevention and Flood Plain Management and Construction (the “Floodplain Law”),
prior to issuing the building permit dated October 17, 2018.
2. Due notice was given of a public hearing to be held by the Board on January 29, 2019.
A copy of the notice was published in the Ithaca Journal, the official newspaper of the Town, on
January 14, 2019.
3. A public hearing was held by this Board pursuant to the notice on January 29, 2019 at
6:30 p.m. Appellant and Appellant’s attorney appeared and spoke on behalf of the Appeal. Code
Enforcement Officer Day and the attorney for LRGC each presented to the Board. A member of
LRGC and numerous residents of the Town offered testimony during the public hearing. Upon
motion duly made, seconded and carried, the public hearing was held open until the next meeting
of this Board to be held on February 19, 2019 at 6:30 p.m. Notice that the public hearing would
remain open and that the Board would accept written public comment in the interim was published
in the Ithaca Journal on February 9, 2019. Upon motion duly made, seconded and carried, the
public hearing was closed at the February 19, 2019 meeting.
4. LRGC is located at 55 Salmon Creek Road, Lansing, New York (the “Property”), in
the Rural Agricultural zoning district. Pursuant to § 503(B)(6) of Local Law 1-2015 (the “Land
Use Ordinance”), “public or private club-sportsmen’s club with outdoor shooting” is permitted in
the Rural Agricultural Zoning District upon the issuance of a special use permit. LRGC has
operated a private sportsmen’s club with outdoor shooting at the Property since the late 1950s or
early 1960s. LRGC does not hold a special use permit.
5. In the fall of 2016, LRGC entered into an Administrative Order on Consent with the
United States Environmental Protection Agency (the “Consent Order”). The Consent Order
required LRGC to either permanently prohibit the use of lead ammunition or implement a plan
that ensures shooting will no longer be into or over Salmon Creek and the adjacent wetlands.
6. In response to the Consent Order, LRGC created an Environmental Stewardship Plan
for the Management of Lead/Bullets, in which it sought to identify, evaluate, and prioritize
appropriate actions to manage lead shot and bullets safely. As noted on page 7 of the
Environmental Stewardship Plan, LRGC determined it would move the trap fields to the north side
of Salmon Creek to comply with the Consent Order.
7. LRGC submitted a building permit application to Code Enforcement Officer Day on
September 28, 2018 to construct a warming hut and two (2) trap houses for the relocated fields.
As of the submission of the building permit application, LRGC’s operations included two (2) trap
fields on the south side of Salmon Creek and a long rifle range and a pistol and rifle range on the
north side of Salmon Creek. Through the building permit application, LRGC sought to relocate
its two (2) existing trap fields to the north side of Salmon Creek and build two (2) pistol and rifle
ranges on the south side of Salmon Creek (generally referred to hereinafter as the “Proposed
Construction”). LRGC proposed to eliminate the long rifle range.
8. Pursuant to a request from LRGC, Code Enforcement Officer Day issued a zoning
code interpretation on October 12, 2018 stating that LRGC’s use of the Property was an existing
nonconforming use and the Proposed Construction did not require a site plan, special permit, or
the review of this Board (the “Interpretation”).
9. Code Enforcement Officer Day issued a building permit to LRGC on October 17, 2018
(the “Building Permit”), with the condition that no work may commence until the stormwater plan
is in place and LRGC has filled out the Notice of Intent and the MS4 Acceptance Form.
10. LRGC submitted a stormwater pollution prevention plan (“SWPPP”) to Code
Enforcement Officer Day as Stormwater Management Officer. T.G. Miller, the Town’s Engineer,
reviewed the SWPPP and prepared the MS4 Acceptance Form that Code Enforcement Officer Day
signed.
11. LRGC submitted the SWPPP and a notice of intent for coverage under the State
Pollution Discharge Elimination System General Permit for Storm Water Discharges from
Construction Activity (GP-0-15-002) (“NOI”) to New York State Department of Environmental
Conservation (“NYSDEC”). NYSDEC acknowledged receipt of LRGC’s complete NOI by a
letter dated November 15, 2018.
12. The Board has jurisdiction over the Appeal pursuant to Article 9 of the Stormwater
Law, Section 1200 of the Land Use Ordinance, Article 16 of the New York State Town Law, and
Article VI of the Floodplain Law.
13. After the filing of this Appeal, Code Enforcement Officer Day instructed the LRGC
that any further construction under the Building Permit is at LRGC’s own risk.
The Stormwater Law
14. The Appeal alleges that Code Enforcement Officer Day, in his capacity as the
Stormwater Management Officer, failed to comply with the provisions of the Stormwater Law
prior to issuing the Building Permit.
15. Article 9 of the Stormwater Law permits any aggrieved person to appeal any action or
determination of the Stormwater Management Officer to the Board by filing a written statement
within ten (10) days of the delivery or filing of any action or determination from which an appeal
is taken.
16. The Appeal was filed on December 10, 2018, which was more than ten (10) days from
the issuance of the Building Permit.
The Land Use Ordinance
17. The Appeal alleges that the Interpretation violates Sections 1001.0, 1001.1, 1002.0,
1003.0, 1004.0, and 1007.0 of the Land Use Ordinance.
18. Section 1001.0 of the Land Use Ordinance permits nonconforming uses existing as of
the date of the Land Use Ordinance, which was first adopted on October 15, 2003 and most
recently amended March 18, 2015, to continue.
19. LRGC has operated a private sportsmen’s club with outdoor shooting at the Property
since the late 1950s or early 1960s. LRGC’s nonconforming use is “private sportsmen’s club with
outdoor shooting” without a special use permit, which it would need to become a conforming use
in the Residential Agricultural district. The Land Use Ordinance does not further define
“shooting” or otherwise distinguish between types of ammunition, firearms, bows, ranges, targets,
etc. when defining “club.” Relocating shooting fields within an area used for “private sportsmen’s
club with outdoor shooting” is a continuation of the same use.
20. The Proposed Construction, including the shot fall danger zones, is in an area that has
been used for some type of outdoor shooting activity, including archery, since the late 1950s or
early 1960s.
21. Pursuant to Section 1001.1 of the Land Use Ordinance, a “nonconforming use of land
may not be expanded or extended so as to occupy a greater area of land unless a variance has been
granted.”
22. The Proposed Construction reduces the area LRGC uses for “private sportsmen’s club
with outdoor shooting,” and therefore does not expand or extend the nonconforming use.
23. Section 1002.0 of the Land Use Ordinance permits the Board to grant a variance for
the expansion, extension, enlargement, replacement of, movement of, or addition to a
nonconforming use or building.
24. LRGC’s nonconforming use of the Property is “private sportsmen’s club with outdoor
shooting.” The Proposed Construction does not expand, extend, enlarge, replace, move, or add to
the footprint of that nonconforming use.
25. Section 1003.0 prohibits a nonconforming use to change to another nonconforming
use without a variance from the Board.
26. LRGC’s nonconforming use of the Property is “private sportsmen’s club with outdoor
shooting” both before and after the Proposed Construction.
27. Section 1004.0 of the Land Use Ordinance states that “[a] nonconforming building, or
part thereof, that is damaged or destroyed may be restored to a safe and sanitary condition.
Damaged nonconforming land or building that is determined to be unsafe or a hazard to public
health or safety shall be subject to all other regulations of the Town related to unsafe buildings.”
28. This section does not apply because the Property is not “nonconforming land,” it is
only LRGC’s use of the Property that is nonconforming. Furthermore, this section permits the
reconstruction and repair of nonconforming buildings when they are damaged or destroyed (i.e.,
by fire) unless the Town’s unsafe building laws require other action. It cannot be read so broadly
as to require owners to remediate environmental impacts simply because they use their property
for a lawful nonconforming use, especially when the Land Use Ordinance places no such
requirement on a conforming use.
29. Section 1007.0 of the Land Use Ordinance terminates nonconforming uses that have
been abandoned or discontinued for twelve (12) months.
30. This section doesn’t apply. LRGC has not ceased its nonconforming use of the
Property for twelve (12) months.
The Floodplain Law
31. Article IV, Section 1 of the Floodplain Law prohibits construction and other
development in areas of special flood hazard without a floodplain development permit.
32. Article II, Section 7 defines “area of special flood hazard” to mean “the land in the
floodplain within a community subject to a one percent or greater chance of flooding in any given
year. This area may be designated as Zone A, AE, AH, AO, A1-A30, A99, V, VO, VE, or V1-30.
It is also commonly referred to as the ‘base floodplain’ or ‘100-year floodplain.’” (emphasis
added).
33. Article III, Section 2 of the Floodplain Law also states, in part, that the “areas of special
flood hazard” are “identified and defined on the maps and documents prepared by FEMA,
including the NFIP Discovery Map, Seneca Watershed, (April 2014)” (the “NFIP Map”).
34. According to a FEMA Region II Discovery Meeting: Finger Lakes/Seneca Watershed
meeting presentation dated May 6-14, 2014, the NFIP Map “shows potential loss in areas of risk
form [sic] 1% annual flood by census block based on HAZUS average annualized loss data.”
35. The NFIP Map classifies the Property as having $1,000 to $10,000 in HAZUS Average
Annualized Loss Data (“AAL”).
Other Matters on Appeal
36. To the extent this Board has jurisdiction over Code Enforcement Officer Day’s
actions pursuant to the State Environmental Quality Review Act, the issuance of a building permit
is a Type II action under 6 NYCRR § 617.5(c)(25) (“official acts of a ministerial nature involving
no exercise of discretion, including building permits and historic preservation permits where
issuance is predicated solely on the applicant's compliance or noncompliance with the relevant
local building or preservation code(s).”).
37. To the extent that Environmental Conservation Law § 11-0931 is relevant to this
Appeal and to the extent the Board has jurisdiction over Code Enforcement Officer Day’s
application of same, this Board was not presented with evidence that the Proposed Construction
would permit the “discharge a firearm within five hundred feet . . . from a dwelling house, farm
building or farm structure actually occupied or used, school building, school playground, public
structure, or occupied factory or church.”
38. To the extent that this Board has jurisdiction over Code Enforcement Officer Day’s
review of Unique Natural Areas, consideration of Unique Natural Areas under the Land Use
Ordinance is under 701.5.2, Site Plan Requirements.
39. To the extent the Board has jurisdiction, there is no evidence in the record that the
Proposed Construction is in a state or federal wetland.
DETERMINATIONS ON THE APPEAL
40. The Board has reviewed and considered the record, which includes but is not limited
to written and oral submissions to the Board from the Appellant, Code Enforcement Officer Day,
LRGC, and the public, together with applicable law.
41. The Board finds that the Appeal was filed more than ten (10) days after the delivery
or filing of any actions or determinations taken pursuant to the Stormwater Law. The Board
denies and dismisses the portions of the Appeal pertaining to the Stormwater Law based on an
untimely appeal.
42. The Board affirms Code Enforcement Officer Day’s zoning code interpretation on
October 12, 2018 stating that LRGC’s use of the Property was an existing nonconforming use and
the Proposed Construction did not require a site plan, special permit, or the review of this Board.
43. The Board determines that the NFIP Map identifies land in the floodplain subject to a
one percent or greater chance of flooding in any given year and the Property is therefore in an
“area of special flood hazard” as that term is used in the Floodplain Law. LRGC must obtain a
floodplain development permit for the Proposed Construction.
44. To the extent this Board has jurisdiction over Code Enforcement Officer Day’s actions
pursuant to the State Environmental Quality Review Act, the issuance of a building permit is a
Type II action under 6 NYCRR § 617.5(c)(25).
45. To the extent this Board has jurisdiction over Code Enforcement Officer Day’s
adherence to Environmental Conservation Law § 11-0931, the Proposed Construction does not
violate this provision of law.
46. To the extent that this Board has jurisdiction over Code Enforcement Officer Day’s
review of Unique Natural Areas at the Property, consideration of Unique Natural Areas under the
Land Use Ordinance was not required for the Proposed Construction.
47. To the extent the Board has jurisdiction, there is no evidence in the record that the
Proposed Construction is in a state or federal wetland.
Motion by: Linda Hirvonen
Seconded by: Peter Larson III
Vote as Follows:
Judy Drake – Aye
Maureen Cowen - Absent
Linda Hirvonen – Aye
Peter Larson III – Aye
Chair: Henry (Hurf) Sheldon – Aye
Dated: March 4, 2019
Received and filed in the Lansing Town Clerk’s Office on March 5, 2019
__________________________
(seal) Jessica Hall
Deputy Town Clerk
Town of Lansing
Tompkins County, New York