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HomeMy WebLinkAboutCOC Packet 2024-08-11 PLANNING DEPARTMENT 215 N. Tioga St 14850 607.273.1747 www.townithacany.gov 8/1/2024 TO: Codes and Ordinances Committee: Rob Rosen, Chair Susie Gutenberger-Fitzpatrick Eric Levine Eva Hoffmann Chris Jung Bill Arms FROM: Christine Balestra, Senior Planner RE: Next Codes and Ordinances Committee Meeting August 8, 2024 The next meeting of the Codes and Ordinances Committee is scheduled for Thursday, August 8, 2024, at 5:30 pm in the Town Board Room, located in Town Hall at 215 North Tioga Street. A quorum of the Town of Ithaca Town Board may be present at this meeting. However, no official Town Board business will be conducted. The following items are attached: 1. Minutes from the July 11, 2024, COC meeting. 2. Memo from Susan Brock, dated July 29, 2024 & excerpt from Town Code §270-239 Violations and Penalties If you cannot attend this meeting, please notify Abby Homer as soon as possible at (607) 273 - 1747, or ahomer@townithacany.gov. cc: Susan H. Brock, Attorney for the Town C.J. Randall, Director of Planning Marty Moseley, Director of Code Enforcement Abby Homer, Administrative Assistant Paulette Rosa, Town Clerk (email) Town Administrative staff (email) Town Code Enforcement staff (email) Town Planning staff (email) Town Public Works staff (email) Media TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE 215 North Tioga Street Ithaca, New York 14850 (607) 273-1747 PLEASE NOTE: This meeting will be held in person in the Town Board Room at Town Hall, 215 North Tioga Street, Ithaca, NY, on August 8, 2024, at 5:30pm. Members of the public may join the meeting via Zoom: • Join Zoom meeting: https://us06web.zoom.us/j/87531393743 • Zoom meeting ID: 875 3139 3743 • Dial in phone: 929-436-2866 Meeting of August 8 – 5:30 P.M. AGENDA 1. Member comments/concerns. 2. Review minutes from the July 11, 2024, COC meeting. 3. Review memorandum and consider amendments to Zoning violations and penalties (Town Code §270-239) 4. Other business: • Next meeting agenda. Town of Ithaca Planning Department August 1, 2024 1 TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE (COC) Meeting of July 11, 2024 – 5:30 pm Shirley A. Raffensperger Board Room, Town Hall Draft Minutes Members present: Rob Rosen, Chair, Eric Levine, Eva Hoffmann, Chris Jung, Bill Arms. Absent-Susie Gutenberger-Fitzpatrick. Staff Present: C.J. Randall, Director of Planning; Christine Balestra, Senior Planner; Nick Quilty-Koval, Planner; David O’Shea, Senior Civil Engineer; Dana Magnuson, Senior Code Officer; Marty Moseley, Director of Code Enforcement; Susan Brock, Attorney for the Town. Guests: none The meeting began at 5:30 p.m., was recorded on Zoom and streamed live on the Town of Ithaca YouTube channel. 1. Member comments/concerns. None 2. Review minutes from June 13, 2024, COC meeting. Rob moved to approve the minutes with one typographic correction. Eric seconded and all voted in favor of approval of the June 13, 2024, COC meeting minutes. 3. Continued review of initial draft of Subdivision of Land Regulations. C.J. introduced the new Town Planner, Nick Quilty-Koval, who prepared a presentation of an example implementation of the draft cluster subdivision regulations. He selected three sample sites for the presentation and explained that they were chosen based on size (each respective site was approximately 25 acres in size) and availability of municipal water and sewer. The three examples were presented from the point of view of a developer unfamiliar with the regulations as proposed, who would be required to apply the site and resource analysis requirements in the draft cluster language that the COC is currently reviewing. This was intended to fulfill a prior request by the COC, due to concerns that the proposed language could be too restrictive and difficult for developers to follow. Nick used the draft cluster language requirements to determine the developable acreage, estimated number of dwelling units and units per acre/density for each parcel. He then created a profile for each site, titled “Site Resource Analysis,” showing the class 1, 2, and 3 development classification criteria/restrictions from the draft law. The amount of developable acreage was based on what remained after subtracting/reserving the resources outlined in the classifications. Each profile example contained a white area where the cluster subdivision could possibly occur after applying the clustered requirements and other restrictions. Nick noted that all the resources required to be identified by the applicant were readily available publicly online, or one could call and get the information from the town. COC members asked for clarification on how the estimated dwelling units were determined. C.J. and Nick responded that the numbers were based on the zoning district minimum lot size in the Town Code. Applicants could not build more units than permitted by Town Code without a Zoning Board of Appeals 2 variance. Each example provided by Nick, however, also included a 15% density bonus, which is achieved only through the clustering process and by meeting the criteria outlined in the law (currently the provision of a public benefit). A developer seeking to construct a clustered subdivision could obtain a density bonus that is beyond the number of units permitted with a conventional subdivision. Planning staff provided pictures and examples of real-life, local clustered subdivisions and developments with densities similar to those envisioned for a clustered subdivision (e.g., Belle Sherman Cottages, Ecovillage, Commonland, Holly Creek, Amabel). The committee appreciated the presentation, as it made the law language easier to understand and visualize. The committee discussed density and ownership models for clustered subdivisions. Notes for staff: “woodland” needs to be defined; and it shows up in Class 2 & 3 but should only be in one classification. Staff noted that a “Site Calculation Worksheet” would be developed later to assist applicants in tabulating calculations. C.J. mentioned that staff would continue the examples at the September meeting, showing conventional subdivision layouts versus cluster subdivision layouts for each of the three example sites. The conventional subdivision generally must be laid out conceptually first to determine the density for the cluster basis approach. The conventional layout must comply with zoning as well as any site-specific environmental constraints, which often reduces the yields on the site. The COC looked forward to this comparison to help further show the different approaches. Other business: next meeting scheduled for August 8, 2024, at 5:30 p.m. (Eric noted previously he would not be available) • Agenda: - Review of Town Code Section 270-236. Zoning penalties and violations. The continued review of the initial draft Subdivision of Land Regulations will be paused until September. The meeting adjourned at 6:57 p.m. SUSAN H. BROCK Attorney at Law 12 Pheasant Way Ithaca, New York 14850 Telephone: 607-277-3995 E-mail: brock@clarityconnect.com Facsimile: 607-277-8042 TO: CODES AND ORDINANCES COMMITTEE FROM: SUSAN BROCK RE: ZONING CHAPTER ENFORCEMENT DATE: JULY 29, 2024 The COC’s 2024 work plan includes a potential update of the “Violations and penalties” provisions in Ithaca Town Code Chapter 270 (Zoning). Here are questions for the COC to consider. 1. Should the existing fines and imprisonment provisions be changed? 2. Should civil penalties be added? The current provision in the Town Code states: § 270-239 Violations and penalties. A. Pursuant to § 268 of the Town Law any person, firm, corporation or other entity violating any provision of this chapter shall be deemed guilty of an offense and upon conviction thereof shall be subject to a fine or to imprisonment as provided in § 268. Each week's continued violation shall constitute a separate offense. Above-referenced NY Town Law § 268 states: 1. The town board may provide by local law or ordinance for the enforcement of this article and of any local law, ordinance or regulation made thereunder. A violation of this article or of such local law, ordinance or regulation is hereby declared to be an offense, punishable by a fine not exceeding three hundred fifty dollars or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine not less than three hundred fifty dollars nor more than seven hundred dollars or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than seven hundred dollars nor more than one thousand dollars or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this article or of such local law, ordinance or regulation shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week’s continued violation shall constitute a separate additional violation. Memo to Codes and Ordinances Committee June 29, 2024 Page 2 The Town brings enforcement actions pursuant to these provisions in Ithaca Town Court. The Town may use its Municipal Home Rule Law supersession powers to change the criminal fines and imprisonment terms. COC should decide whether it wants to do so. The Town may also seek an injunction prohibiting a violation of the Zoning chapter and/or an order that compels the violator to correct a violation per NY Town Law § 268: 2. In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, or any land is divided into lots, blocks, or sites in violation of this article or of any local law, ordinance or other regulation made under authority conferred thereby, the proper local authorities of the town, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure, or land or to prevent any illegal act, conduct, business or use in or about such premises…. Town Court justices do not have jurisdiction in the NY court system to issue injunctions/orders to compel. To get those types of relief, the Town would need to start an action in NY Supreme Court. NY Supreme Court judges also have the ability to assess civil penalties where a law authorizes civil penalties. The Town currently does not provide for civil penalties in § 270-239, but the Town could do so pursuant to the authority granted to towns by NY Town Law § 135, as well as by the Municipal Home Rule Law. These two NY laws do not put parameters on permissible amounts the Town may list in its own law, so the Town has considerable discretion about the amounts and whether it wants the amounts to increase for second and subsequent violations. Town Law § 135: 1. …. [A town board] is also empowered to provide civil penalties for such violation [of any ordinance, rule or regulation adopted by the town board pursuant to NY Town Law]. NY Municipal Home Rule Law § 10: 2. Every local government also shall have power to adopt and amend local laws where and to the extent that its legislative body has power to act by ordinance, resolution, rule or regulation. …. 4. In the exercise of its powers to adopt and amend local laws, the legislative body of a local government shall have power: …. (b) To provide for the enforcement of local laws by legal or equitable proceedings which are or may be provided or authorized by law, to prescribe that violations thereof shall constitute misdemeanors, offenses or infractions and to provide for the punishment of violations thereof Memo to Codes and Ordinances Committee June 29, 2024 Page 3 by civil penalty, fine, forfeiture, community service… or by two or more of such punishments…. If the Town Board changes § 270-239 to authorize civil penalties for Zoning chapter violations, then the Town could seek money from the violator and an injunction/order in one action in Supreme Court (instead of having to seek criminal fines in Town Court and an injunction/order in Supreme Court). COC should decide whether to recommend the addition of civil penalties to the Town’s Zoning chapter’s enforcement provisio n, and if so, decide on the amounts. Here are examples of civil penalty amounts in other Ithaca Town Code provisions: § 270-219 Personal wireless service facilities (this is in the zoning chapter, but these civil penalties provisions apply only to this section): Civil penalty of not more than $5,000 for each day or part thereof during which such violation continues. § 125-15 Building Construction and Fire Prevention: A civil penalty of not more than $200 for each day or part thereof during which such violation continues. § 173-17 Outdoor Lighting: $100 for a first violation and $200 for a second or subsequent violation that was committed within a period of five years from the commission of the prior violation. Each day that such violation is permitted to exist shall constitute a separate violation. §184-14 Noise: Civil penalty of $500 for a first violation and $1,000 for a second or subsequent violation which was committed within a period of five years from the commission of the prior violation. With respect to continuous emissions of sound, each day of such emission shall constitute a separate violation. §202-10 Food Trucks: Civil penalty of not more than $200 for each day or part thereof during which such violation continues. § 205-3 Property Maintenance: Civil penalty of up to $500 for each such violation. Each day a violation exists shall constitute a separate violation. § 216-43 Sewer Use: Requirements for Contributors into Joint POTW [for discharges into the Ithaca Area Wastewater Treatment Plant]: A civil judicial penalty not to exceed $5,000 per day for each violation. Each day on which a violation shall occur or continue shall be deemed a separate and distinct offense. If and when changes are made to the Zoning chapter’s “Violations and penalties” section, staff recommend that wording also be added regarding orders to remedy and injunctions/order. The Town already has the authority to undertake/seek these actions, but it would be convenient for the public and Town staff if these actions are spelled out in the Zoning chapter section with the fines/imprisonment/civil penalties provisions. Here is wording from § 270-219 Personal wireless service facilities (PWSFs) that could serve as a model. (Again, this PWSF wording is already in Memo to Codes and Ordinances Committee June 29, 2024 Page 4 the zoning chapter, but currently these provisions apply only to PWSFs. Wording would be revised to make this wording apply to all zoning violations.) Enforcement. (1) Whenever the Code Enforcement Officer finds that there has been a violation of this section, the Code Enforcement Officer is authorized to issue an order to remedy. (2) An order to remedy shall be in writing; identify the facility at issue; specify the condition or activity that violates this section; specify the provisions of this section which are violated by the specified condition or activity; and include a statement that the violations must be corrected within 30 days after the date of the order to remedy (or, if the violations are not reasonably capable of cure within 30 days, shall include a statement that the owner or operator must commence to cure such violations within such thirty-day period and thereafter diligently and with continuity prosecute such cure to completion in a period not to exceed 90 days after the Town's notice). The order may direct the person served with the order to begin to remedy the violation(s) immediately or within some other stated period of time that can be less than 30 days after the date of the order; direct that compliance be achieved within the specified period of time; and shall state that an action or proceeding to compel compliance and/or seek penalties, fines and/or imprisonment may be instituted if compliance is not achieved within the specified period of time. (3) The order to remedy, or a copy thereof, may be served by personal service, by mailing by registered or certified mail sent to the address set forth in the application for any permit submitted to the Town or to the property address, or by posting a copy thereof on the premises that are the subject of the order to remedy and mailing a copy, enclosed in a prepaid wrapper, addressed to the last known address of the owner as set forth in the Town of Ithaca records, or if none, in the most recent tax roll available to the Town of Ithaca. The Code Enforcement Officer shall be permitted, but not required, to cause the order to remedy, or a copy thereof, to be served on any property owner, PWSF operator, or any other person taking part or assisting in the operation of a PWSF at the affected property personally or by registered mail or certified mail; provided, however, that failure to serve any person mentioned in this sentence shall not affect the efficacy of the order to remedy. (5) An action or proceeding in the name of the Town of Ithaca may be commenced in any court of competent jurisdiction to prevent, restrain, enjoin, correct, or abate any violation of, or to enforce, any provision of this section or any term or condition of any personal wireless service facility permit, order to remedy, or other notice or order issued by the Code Enforcement Officer pursuant to any provision of this section. Such remedy shall be in addition to penalties, fines and other remedies otherwise prescribed by law. (6) Remedies not exclusive. No remedy, fine or penalty specified in this section shall be the exclusive remedy, fine or penalty available to address any violation described in this section, and each remedy, fine or penalty specified in this section shall be in addition to, and not in substitution for or limitation of, the other remedies, fines or penalties specified in this Memo to Codes and Ordinances Committee June 29, 2024 Page 5 section, or in any other applicable law. Any remedy, fine or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with, or after the pursuit of any other remedy, fine or penalty specified in this section, in any other section of this chapter, or in any other applicable law. The word “person” is used in the wording above, and “person” should be defined in the Zoning chapter in § 270-5. Here is the definition of “person” from the Town’s food truck law that could be used as a model: Any individual, association, organization, partnership, firm, corporation or other entity recognized by law. A. B. Town of Ithaca, NY Wednesday, July 31, 2024 Chapter 270. Zoning Article XXVIII. Administration § 270-239. Violations and penalties. Pursuant to § 268 of the Town Law any person, firm, corporation or other entity violating any provision of this chapter shall be deemed guilty of an offense and upon conviction thereof shall be subject to a fine or to imprisonment as provided in § 268. Each week's continued violation shall constitute a separate offense. Notwithstanding any other provisions of this chapter the Planning Board or the Zoning Board of Appeals may refuse a special permit, special approval, preliminary or final site plan approval to an applicant as long as the applicant, or any person or entity under the control of or controlled by the applicant, is in default in the performance of any actions required of them pursuant to law or pursuant to conditions imposed in connection with a previously granted special permit, special approval, or final site plan approval in the Town of Ithaca.