HomeMy WebLinkAbout2019-03-04 Approved ZBA Minutes APPROVED
Town of Lan s i n g
Zoning Board of Appeals Meeting
Monday, March 4, 2019 6:30 PM
Present Absent
Judy Drake Maureen Cowen
Linda Hirvonen
Peter Larson III
Henry (Hurf) Sheldon, Chair
Other Staff Present
Paul Sylvestri, Town Attorney Laura Smith, Esq
Lynn Day, Code Enforcement Officer Elizabeth Brucie, Stenographer
Katrina Binkewicz, Town Board Liaison Tom Butler, Planning Board Alternate
Al Fiorille, Planning Board Member Joe Wetmore, Town Board Member
Public Present (17) Signed In
Steven Smith Dan Veaner Dan Card Pat Card Connie Wilcox
Scott Hicks Ron Robbins Karl Kolenberg GaryArgetsinger S Hinderliter
Lisa Ruzicka Tim Farrell Dave Barnes Tricia Barnes Flint Brann
Andrew Sullivan Gary Argetsinger, (Jr.?)
General Business
Chair Henry (Hurf) Sheldon Opened the meeting of Monday, March 4, 2019 at 5:30pm.
Chair Henry (Hurf) Sheldon motioned to go into closed session at 5:35pm. All those in favor.
(Motion Carried)
Motion to open tonight's meeting at 6:33pm
Linda Hirvonen made a motion to open tonight's meeting at 6:33pm. Judy Drake seconded the
motion.
All in Favor: 4 All Opposed: 0
Motion to Approve the Zoning Board of Appeals Minutes for February 19,2019 Meeting
Peter Larson III made a motion to Approve the February 19,2019 Minutes. Judy Drake
seconded the motion:
All in Favor -4 Opposed - 0
Motion to Close the Public Portion of the meeting to deliberate with the public present
Linda Hirvonen made a motion to Close the Public Portion of the meeting to deliberate with the
public present. Judy Drake seconded the motion.
All in Favor -4 Opposed - 0
Page 1 of 8
APPROVED
Chair Hurf Sheldon made a statement that by closed, the deliberations are being held in public,
public is allowed to listen in.
The ZBA Board has considered carefully the public comments with assistance from Attorneys
hired by the Town. We will now finish the last few question from the application and make a
decision.
#7 page 20 "Shooting cannot occur within 500 feet of a neighboring property structure without
permission of the neighbor." The appellant claims that the shooting will take place less than the
500 feet of their shed and propane tank.
- The shed and propane tank are not consider a dwelling, or business
- Lynn Day has measured the distance and it is actually 580 feet from the neighbor's
property line. This would make it even further from the shed and propane tank.
# 8 page 21 "County Unique Natural Area (UNA) not considered in the approval of the permit."
- UNA only comes into play with a site plan review.
- Please understand that the ZBA is does not make the law it is only able to interpret the
law. If our decision is not what you want then there is other avenues you can take.
#9 page 22 "Appeal supplement: Impacts resulting from unlawful actions of the Town of
Lansing.
- For the purpose of this hearing there is no law on this for the ZBA to interpret.
The ZBA has looked very carefully at the regulations and what the ZBA could use as a
reference. The NIFP map of 2014 is clearly called for in the Lansing Town Law. This map does
not deem the property as a wet land. The property is considered to be in a Floodplain area as
defined by the NIFP map of 2014.
RESOLUTION 19-01
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:
Page 2 of 8
APPROVED
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 but 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.
Page 3 of 8
APPROVED
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
Page 4 of 8
APPROVED
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 100 1.1 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.
Page 5 of 8
APPROVED
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, Al-A30, A99, V, VO, VE, or V1-30. It is also commonly referred
to as the `base floodplain' or 'I 00-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.
Page 6 of 8
APPROVED
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
Chair Hurf Sheldon would like to thank everyone and the ZBA really appreciates the effort that
has put into this from the public, attorneys and the code officer. It has been a lot of work and we
have learned a lot in the process.
Peter Larson III would like to reinforce Hurf and noted this has weighed heavy on all of us. The
responsibility of the ZBA is to follow the law as it is written,we cannot make law. It puts us in a
tough spot in a lot of ways when things like this come up and it is not a decision that any of us
takes lightly.
Lynn Day asked for clarification that the ZBA ruled that the LRGC could continue as planned as
long as they get a floodplain permit with supporting engineering.
Paul Sylvestri, Town Attorney noted that the next steps that need to be made is to file the
Findings & Decision with the Lansing Town Clerk's Office within the next 5 business days and
a copy mailed to the Appellant and to the Gun Club.
Chair Hurf Sheldon read the recommendation to the Town Board from the ZBA: See Below
Page 7 of 8
APPROVED
RESOLUTION 19-02
WHEREAS, members and guests of the Lansing Rod and Gun Club ("LRGC") have been shooting lead
shot into and over Salmon Creek and the adjacent wetlands since the late 1950s or early 1960s;
WHEREAS, LRGC entered into an Administrative Order on Consent in 2016 with the United States
Environmental Protection Agency,Region 2 (the "Consent Order")to address LRGC's continued handling
and disposal of lead shot;
WHEREAS, the Consent Order does not require the remediation of lead shot in Salmon Creek and the
adjacent wetlands;
WHEREAS, as noted in the Consent Order, "Lead pellets, fired from a shotgun, may break down into
soluble lead compounds, such as lead hydroxide, and lead oxide, which may migrate into the groundwater
and/or surface water. This soluble lead poses a potential threat to human health and the environment through
water contamination;" and
WHEREAS, lead shot continues to be used in the Town of Lansing.
NOW, THEREFORE, BE IT RESOLVED, that the Town of Lansing Zoning Board of Appeals hereby
requests the Lansing Town Board to review and consider what actions the Town of Lansing can take to
address lead contamination in Salmon Creek and the adjacent wetlands.
Motion by: Judy Drake
Seconded by: Linda Hirvonen
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
Chair Hurf Sheldon wants to point out that this is a good idea. One of the things that this
continues to point out is that Lead has been a known hazard for decades. Hurf feels that the
Lansing Gun Club could have taken a little more leadership in this area. He wishes that all the
community, regardless of which side you are on,would come together and try to solve this
problem. It is clearly a very dangerous material that we are putting into our environment.
Chair Hurf Sheldon asked if there was any further discussion
Motion to Close the meeting and Adjourn Meeting
Peter Larson III made a motion to Close the meeting and Adjourn at 7:01pm.Judy Drake
seconded the motion.
All in Favor -4 Opposed - 0
Minutes taken and executed by Sue Munson-Transcript taken and executed by Elizabeth
Brucie, RPR The Transcript is on file in the Town of Lansing Planning and Code Office.
Page 8 of 8