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HomeMy WebLinkAboutRogue Ck - Appeal of Interpretation, corrected2TOWN OF DAN BY INTERPRETATION APPEAL TOWN OF DANBY Upon a determination by the Code Enforcement Officer or Zoning Officer that it is not permitted by the Danby Zoning Ordinance, I/We hereby apply to the Zoning Board of Appeals: AN INTERPRETATION OF THE ZO'S RESTRICTIVE APPLICATION OF FARM OPERATIONS at the property located in the Town of Danby at1582 Danby Rd, Tax Parcel #: 7.4-11. As shown in the accompanying site plan, other attached documents and the statements on the attached letter to be examined by the Board of Zoning Appeals. I/We attest that all information submitted with this appeal application is complete and accurate to the best of my knowledge. Also, by filing this application, permission is granted to members of the Board of Zoning Appeals, Planning and Code Enforcement staff, and/or any other persons designated by the Town that may be involved in the review of this application, to enter the property specified above to inspect in connection with the review of this application. Name: David Jordan Signature: Date: P7r/ih �' ` . 292 East Miller Rd, Ithaca,NY 14859 davidij20O1@aol.com & iediordan0hotmail.com Town of Danby Zoning Variance Form, rev. June 2019 4 Applicant/Appellant Responses to Balancing Tests to be Examined by the Board of Appeals NYS Town Law Section 267-B requires that the Board of Zoning Appeals, when considering granting a variance from the area requirements of the Zoning Ordinance, must weigh or balance the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community. In making such determination the board must consider five criteria. Please explain how the requested USE will relate to these criteria. SEE SITE PLAN REVIEW WHICH ANSWERS THESE CRITERIA IN FULL. �! RECEIVED OCT 12019 TowN OF OANSY ] a,UVd L_Joro(c . 292 East Muter R.ol Aavi,blu, NY 1485"0 Mr. Earl Hicks, Chair Town of Danby- Zoning Board of Adjustment Town Hall Danby, NY 14850 September 30, 2019 Re: Jordan Family- Application for Board of Appeals Interpretation of Code Officer Determination Attachments: • Town of Danby- Zoning Officer's letter of 8/2/2019 • Dept of Ag&M -Guidelines for review of local laws affecting direct farm marketing activities • Guidelines for review of local laws that define "farm operations", "farm" or any such similar term • Guidelines for review of local laws affecting far operations which produce, prepare and market crops for wine, beer, cider and distilled spirits • Voluntary site plan and response to Planning administrators memo to the Planning Board • Application for Interpretation by ZBA Dear Mr. Hicks, We are seeking an interpretation of decisions made by our Zoning Officer, John Norman. He has directed us to seek this interpretation if we disagree with his opinion delivered in his August 2nd letter. This Application for interpretation relates to a property, 1582 Danby Rd, which is located in a LD zone that allows for "typical agricultural" uses. There has been a lot of recent discussion what these "uses" should include. Mr. Norman states in his letter that the Town (and himself, with the Town attorney's review) has decided to "essentially extend the zoning definitions of 'typical agricultural uses' in a manner that is more consistent with the Department of Agriculture and Markets (Ag&M) modern definitions of what is an agricultural use or practice within NYS," for all properties - even if it is not located in a certified agricultural district. With this definition in mind, the ZO has decided to allow a Tasting room on this property, but has denied other agricultural uses. These other uses are essential to the financial viability of the farm and its ability to process farm produce for marketability. There is no reason for such a restrictive interpretation. Specifically Mr. Norman states we may neither process nor prepare food in a kitchen even though these are specifically identified by Ag&M as farm operational activities. The only objection Mr. Norman gives is that these other uses are "commercial" and thus not allowed in the zone. But all agricultural uses are commercial, by definition of Ag & Markets and by common sense. Thus, the Zoning Officer's decision is capricious and is not supported by the Town's zoning ordinances which allow for agricultural uses. At Mr. Norman's request, the Town Planning Board also considered these proposed uses on September 19th and offered unanimous agreement that there was no objection to these uses. This application for interpretation is being submitted for your deliberation, and consideration to allow for use of a kitchen for both food service and to process produce from our farm at this location. In addition to our application to ZBA for review of his opinion, Mr. Norman also suggested that the applicant seek ZBA to provide more specific application materials fully delineating the use and seek a supplemental zoning hearing: a parallel effort will be made to provide the ZO with more specific applications material to delineate the intended uses. This parallel effort will utilize Ag&M guidelines for the design of small food processing kitchens, one of which is needed to process our farm sourced produce, apiary and maple sap products, and to prepare typical foods prepared and served as in other Cideries and Wineries (and as regulated by NYS LA and AML). It should again be noted, as expressed in Mr. Norman's letter, irrespective if the proposed farm activity is in an Ag District or not, "the intent of local [Danby] farm law is to extend the zoning definitions of agricultural uses in a manner that is consistent with AML's modernized definitions of what is agricultural use or practice within NYS." It is clear that these definitions and standards are specifically intending to prevent the sorts of restrictions to normal farm operations that Mr. Norman has imposed. PRELIMINARY STATEMENT: While the Town's Zoning Board normally hears two types of variances (area and use), it can hear appeals for "interpretation" requests if applicant does not agree with the Zoning Officers interpretation of the Zoning Ordinance. Such requests are due within sixty days of the Zoning Officer's determination that is being appealed. The interpretative role of the ZBA often includes the following: 'The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such local law and to that end shall have all the powers of the administrative official from whose order, requirement decision, interpretation or determination the appeals taken." This Appeal for Interpretation Determination relates to a property located at 1582 Danby Rd (hereinafter referred to as branch farm), in the Town of Danby that was purchased by the Jordan family for use as a farm cidery and farm stand. This property is part of the family's main farm operation and licensed "Farm Winery", located in Ag District 1 at 292 East Miller Rd (94.4 acres): application to add the Danby Rd property to an Ag District was filed this year. This non-contiguous branch farm was purchased early in 2018 and shortly after granted a building permit to renovate the property as a tasting room, kitchen and residence: In the early part of 2018, the Applicant submitted an application to the NYS Liquor Authority for licensing the branch farm (application is pending photographs of the finished remodeled facility). Over the course of a year while this Permit was in effect, the Applicant met with the Town's Planning Administrator (C.J. Randall) and Zoning Officer (Paul Nelson), at least three times, and inquired if any other applications needed to be submitted to the Town's Boards. The Applicant was reassured that no additional applications were needed. However, unbeknown to the Applicant, many internal discussions were occurring which expressed resistance to the Permitted work at this location. Since the Applicant was never informed of the internal disapprovals, early, when the Applicant could have stopped the remodeling work, no hardship was self-created when the new Permit was issued for remodeling the residence, only. Subsequent to the issuance of the restrictive Permit, the Applicant engaged an attorney, who after several months of discussions with the Town's attorney got positive consensus and agreement to allow the Applicant to proceed with fitting out the house for both a residence and a Tasting Room. The action taken by the ZO, in its limited interpretation and application of agricultural use, is unreasonably restrictive "on its face", and unreasonably restrictive with respect to Ag&M's definition for farm operations. These farm operations are enumerated in Ag&M's Guidelines Review of Local Laws That Define "Farm Operations". This Guideline clearly states that "equipment and practices which contribute to the production, PREPARATION, and marketing of crops" are farm operations. Yet, Mr. Norman restricted the use of a "kitchen" even though such equipment and related food processing activities are covered under the definition of an Ag&M tasting room. From a historical perspective, the Town's previous Town Planner and Zoning Officer were made aware of the full scope of the Applicant's proposed farm operations because they were delineated in a Building Permit Narrative (refer to attachment), submitted to the Town's ZO in April, 2018: this document mentioned remodeling work for a tasting room, kitchen, parking and residence. There was no objection then to any proposed "farm operation" usage. As a first step towards getting the Applicant's proposed AG&M farm operation uses accepted by the Town at this location, Mr. Norman suggested a Voluntary Site Plan be submitted for to the Planning Board as a way to "develop a final scope to determine a final classification of the allowed and non - allowed uses, including whether any proposed use is sufficiently similar to an allowed agricultural use". The presentation to the Planning Board occurred on September 19, 2019, but the Board preferred not to rule on allowed uses because they agreed with the Town Planner (John Czemanske), who was also present, that they didn't have the authority to do so. Thus, such decision and ruling is being deferred to the ZBA for an interpretation. Nonetheless, there were no objections by any members of the Planning Board or those from the public in attendance to any of the proposed uses. Members of the Planning Board in fact spoke favorably of the Applicant having a kitchen at this site in which to process and prepare farm goods for selling, and they spoke favorably of the limited food service we proposed. The Applicant also circulated a petition among the neighbors of the branch farm which described the intended use. This petition was signed by all of the nearby neighbors who unanimously supported a Tasting Room and Farm Stand as proposed to the Planning Board and submitted herein, too. The presentation to the Planning Board included the following material for discussion: 1) Site Plan that showed proposed parking for 20+ cars. This had to be and has subsequently been pared back to be in compliance with set -back requirements and the number of allowed spaces. The revised compliant Site Plan (an attachment to this application) shows spaces for 12+ cars. This is more than enough for the number of planned seating accommodations in the Tasting room. 2) Description of intended food service that is representative of what NYS LA and AML suggest food service to be for wineries and cideries: "foods that can be consumed while standing or walking around". It does NOT represent dining room type of "restaurant" food service. 3) Description of kitchen needed to prepare food and to process farm produce. A kitchen is needed to process farm sourced produce and to provide for a minimum amount of cooking for menu items. The Applicant designed and submitted a kitchen design to the DOH for approval. Final approval is pending subject to inspection of the final facility. The kitchen was designed using Ag&M Basic Standards for Home Kitchens and Small Scale Food Processing Facilities. The scale of the proposed use is very small in terms of pounds of honey and gallons of maple syrup because the kitchen has limited space for more than one range and two SS work tables. For food service, a range and convection oven with food preparation table would be used. Again, the food service is small and designed to handle a small number of seated customers per hour: no takeout service. The type of food offered will be chosen to be "paired" with hard cider as the season allows, and much of the food will come from the Applicant's farm. 4) Description of farm operation activities the Applicant wants to engage in at this location. The Tasting Room and Farm stand is a seasonal business, usually starting in July and ending in early January. Anticipated hours of operation are noon to evening, Monday thru Thursday; 12 to 813M Friday and Saturday; and 12-613M on Sunday. The facility will be used to market farm sourced produce and hard cider with modest food items. The facility will be used to process honey, pickles maple syrup and other farm goods. We now come to the second step suggested by Mr. Norman: to submit his ruling to the ZBA for a review of his opinion. The ZO's ruling presented in his letter of August 2,2019, limits farm operations to just a Tasting room with di minimus food service that is not prepared on-site because there is no kitchen allowed at this site. Ag&M has issued two Guidelines which define farm operations and operations which produce cider: Guidelines for Review of Local Laws that Define "Farm Operations, "Farm" or Anv Similar Term, and ; Guidelines for Review of Local Laws Affecting Farm Operations Which Produce, Prepare and Market Crops for Wine,Beer. Cider, and Distilled Spirits. These guidelines define "farm operation" means the land, on-farm buildings, equipment,..and practices which contribute to the production, preparation of crops such as apiary products, including honey,..maple sap, and cider. The NYS Liquor Authority authorizes Cideries to offer food to accompany hard cider. A small kitchen is needed to both prepare (heat, store, reheat) food and to process farm apiary products and to bottle syrup. Yet, Mr. Norman has decided to allow a tasting room without any food preparation capability or farm product processing equipment. Additionally, Mr. Norman apparently does not consider sanitary honey processing an agricultural use. Mr. Norman has not given any reason to deny such equipment despite AML and public opinion to the contrary. Such equipment and use is usual for farm operations by Ag&M standards and Guidelines. Contrary to Mr. Norman's opinions, all of the proposed activity at this property falls within a typical farm operation. Mr. Norman's opinion seems "capricious" because it was unreasonable and without regard to the facts that such uses should be allowed wherever the AMLs definition of "farm operations" applies. Denying one agricultural use (but not another) because it is commercial is not only without merit, it is arbitrary. Moreover, during the last several months, there have been many conversations between the Town's and Applicant's attorneys. These discussions covered many of the questions raised by the Town which included facility capacity, scale of operations, food menu and preparation. The Town's attorney conveyed concern over proposed menu items, but there was never any issue raised about having a small kitchen to prepare food and honey. So why has Mr. Norman decided to allow a Tasting room without a kitchen? And why should having a kitchen imply that a "restaurant" is being proposed by the Applicant, when in fact, no such use is proposed by the Applicant? Even if a permitted kitchen, the Town may still limit the capacity of the site and the menu (via Ag&M approvals). Local government regulations bear on a direct relationship to public health and safety. There is no evidence that public health and safety are at risk. Nor has any Danby official or Town attorney provided evidence that the proposed mixed use of a residence, tasting room with kitchen and related parking will be a risk to the Public's health or safety. Nor has Mr. Norman reasonably presented any proposed use as prohibited in the LD zone. Local town ordinances commonly become dated as agricultural practices evolve over time. At times, they can be so vague that they inhibit farmers from undertaking certain activities out of concern for violating the law or ordinances. Vague ordinance construction can be construed as unreasonably restricting farm operations. Danby's decision to specifically allow "agricultural uses" offers more clarity than is often the case. However, our own lack of specific language may be contributing to the confusion surrounding a proposed use of a "kitchen". Having a "kitchen" certainly doesn't make the proposed use descriptive of a restaurant. Specifically, there are no standards in the Town's Ordinances for kitchens in either residential, agricultural or commercial applications. Recall, the LD zone allows for a single two family house which naturally would utilize two kitchens. The approval to proceed with a Tasting Room and residence is similar in nature as both the Tasting Room and residence as each has a kitchen. Residential kitchens can range in performance as having ranges with medium to high BTU performance, very similar to what some commercial kitchens require. The proposed kitchen for the Tasting Room was based on minimum Standards specified in A&M's Standards for Small Scale Food Processing facilities. The equipment list, submitted to DOH for approval, utilizes typical; high end residential kitchens for the refrigerator, icebox, steam dishwasher. The proposed range and convection oven are low BTU commercial equipments: similar high end residential units are more expensive. The honey processing equipment used currently fits in the back of the applicant's car (to transport to sanitary space currently used). This proposed use of an Ag&M and DOH type of kitchen is not an excessive use outside the approved boundaries of what the Town is currently following for two family houses. So, why deny use of a kitchen in the Tasting room? A Tasting room with a small kitchen is within the envelope of typical farm operations. In sum, reasonableness depends on the totality of an equipment's (appliances) intended use. The Applicant requests that the ZBA review the ZO's denied use of a kitchen and reverse his decision to allow such use. Mr. Norman's letter of August 2,2019 states "proposed uses or on-site business or related activities that fall outside of the respective AML and SLA standards are indicators of commercial activity which are not allowed uses in this(LD) zone". AML Article 301(11) "farm operation" ....means the land and on-farm buildings, equipment ....and practices.... as COMMERCIAL enterprise. ....Such farm operations may consist of one or more parcels of owned or rented land, which parcels may be contiguous or noncontiguous to each other". Ag&M does consider all farm operations as "commercial". They do not generalize this designation to all other commercial activities that are found in commercial zones. So, Ag&M clearly separates farm operations from typical commercial enterprises for special treatment in Agricultural zones, and as such should not be construed as a denied use in a LD with "typical agricultural" uses being permitted. Furthermore, the proposed uses do NOT fall outside of AML and SLA standards, and so they ARE NOT indicators of non-agricultural commercial activity. The Applicant has submitted an application for adding 1582 Danby road to an Agricultural District, this year: it is located adjacent to Ag District 2, and its addition to an Ag district is expected after February 2020. This non-contiguous property is part of the Applicant's farm located at 292 East Miller Rd, which is in Ag District 1. The Applicant requests that 1582 Danby Road be considered as though it is in an Ag District, now, to avoid any further delay in its full use and later reconsideration when it is in a District. Again, this is part of the requested "interpretation". It is understood that Ag&M will be the certifying agent for the kitchen, regardless of being in a District or not, because of an agreement between Ag&M and the Department of Health. PROPOSED USES BACKGROUND AND FINDINGS 1. In April of 2018, the Jordan family purchased 1582 Danby Rd and shortly after, applied for and was issued a building permit which allowed remodeling of the LD zoned residence for use as a Tasting Room with kitchen, and a second floor apartment with a separate kitchen. Over the course of the following year, the Town hired a new Plan Administrator and new Zoning Officer. When it came time to renew this Permit, these new Town officials reversed the earlier approval, and reissued a revised Permit for remodeling the upstairs as a residence only. The very first indication that the ZO was concerned about the existing permit came only a few weeks before it was to be renewed, and Mr. Jordan was not given any opportunity to address the new issues. After the partial permit renewal, Mr. Jordan then engaged an Attorney to plead his case with the Town's attorney to restore the original permitted uses and original scope of work to build -out the residence for both a Tasting Room with kitchen, and related parking and for a separate residential apartment. After several months of back and forth discussions, and emails, the Attorney's seemed to have reached a reasonable way to move this project forward: a. June 21St — A letter sent from Mr. Jordan's attorney to Town specifically expressed that the Tasting Room was not to be a restaurant or like a restaurant, and specified need for sanitary food processing space, especially for honey. b. After several days of failed attempts to get a response from ZO or Town Attorney, Mr. Jordan's attorney sends a second letter to Town on July V. To this, the Town Attorney, Guy Krogh responds. C. Over the next month Mr. Jordan's attorney and Town Attorney correspond several times, and answers to Town's questions and concerns are given in writing. On August 2, 2019, Mr. Norman issued a letter describing what the Town would and would not allow to be done with the branch farm property. The ZO's letter appears to unreasonably restrict farm operations as defined by AML Article 305-a. subdl. It did allow for a Tasting Room with di minimus food service, but the letter restricted food service, food processing and preparing, and then identified actions that Mr. Jordan could take to get Mr. Norman's "opinions" changed. 2. Mr. Jordan and his family own a farm located at 292 East Miller Rd (main farm of 94.5 acres is in Ag District 1) and 1582 Danby Road (application to be added to an Ag District was made in 2019). The main farm has been in continuous operations since Oct 2011 and is engaged in various fruit farm activities, apiary and maple sap production, and hard cider production. The 1582 Danby Rd property is being returned to agricultural usage thru the approved use of a Tasting Room and tillage of a section of the property for crops. The main farm receives an agricultural assessment. 3. A kitchen facility is needed to process apiary products, pickled cucumbers, and for the final stages of maple syrup bottling; the evaporation of raw maple sap will be done at the main farm. The denial to have a kitchen restricts the Jordan family's ability to process farm produce in a sanitary room as required by Ag&M. All hard cider fermentation and bottling is to be done at the main farm location as well. 4. Following Mr. Norman's suggestion, Mr. Jordan presented a voluntary site plan to the Planning Board on Sept 19, 2019. The intention was to obtain a final scope to determine a final classification of the allowed and non -allowed uses and to determine whether any proposed use is sufficiently similar to an allowed agricultural use. The Planning Board decided not to render a classification because it did not have authority to do so. Rather they offered "NO objection" to any of the proposed uses. 5. A few months after renovation work began in 2018, the then building inspector, Mr. Paul Nelson, was presented with technical data and samples of the masonry construction used for the residence interior walls and ceilings. There was acknowledgment that the building likely conforms to near typical commercial building standards as indicated by the International Building Code. Specifically, the building is built with concrete block walls and likely qualifies as a Type III -A building; "ordinary construction with brick and block walls and a wooden roof or floor assembly which is one hour rated". The interior walls and ceilings are constructed of masonry plaster: walls are more than 1" thick; the ceilings are over 1" thick. The fire rating for such ceiling and walls is two hours and one hour, respectively. The ceiling and walls are painted using epoxy paint: the backsplash behind the cooking equipment will be either sheet stainless steel or tile. The proposed range hood will be Level 1. 6. The applicant's assertion that a restaurant was not being proposed was a focus of the discussions between the Town's and the Applicant's attorneys, and in various conversations between present and past Planning administrators and Zoning Officers. Nevertheless, Town officials have continued to suggest that the Applicant intended to operate a "restaurant". This is factually INCORRECT, and demonstrated a bias against allowing for the full enjoyment of typical "farm operations". A menu and list of kitchen equipment was presented to DOH and the Town. This submittal was prepared to comply with NYS LA and AML for preparation of food that can be eaten while standing or walking around. This interpretation of intent, and related decisions was also an "abuse of discretion" made outside the confines that encompass discretion as authorized by NYS Liquor Authority, and on a case-by-case basis in AML wherein food may be paired with hard cider to promote the farm product, "hard cider", and its denial of food preparation functions: no kitchens. As written in Ag&M's Guideline for Review of local Laws Affecting Farm Operations Which Produce, Prepare and MarketCrops for Wine, Beer, Cider and Distilled Spirits, AML Art 301(11) "farm operation" means the land and on-farm buildings, equipment, and practices which contribute to the production, preparation and marketing of crops as a COMMERCIAL enterprise. Such farm operation may consist of one or more parcels of owned, or rented land, which may be contiguous or non-contiguous to each other: as presented in earlier paragraph, 1582 Danby Rd is a non-contiguous Farm Operation associated with the main farm operation(fruit farm, apiary products, maple sap, cidery)located in Ag District 1, at 292 E. Miller Rd. As indicated in Guidelines for Review of Local Laws That Define "Farm Operations", "Farm", "Agriculture", "Farmland" or Anv Similar Term, Farm Operation includes, but not limited to, maple sap, and apiary products and fruit farming, for produce such as apples, peaches, grapes, and berries. A Home/Commercial kitchen is essential for preparation of food as allowed by NYS Liquor Authority and Ag&M, and for final preparation of maple sap and apiary products. In August 2019, The Jordan family presented a proposed kitchen to the Department of Health. It was designed applying Good Manufacturing Practices (GMP) and Standards as required by Ag&M's, Basic Standards for Home/Commercial Kitchens and Small Scale Food Processing Facilities.: it was approved by DOH subject to inspection of the final facility, and compliance with local building code. Since the DOH filing, Applicant learned from Ag&M that there is an internal MOU between DOH and Ag&M for facility inspections. When zoning approval for a "Kitchen" is granted, Applicant will apply for 20.c licensing via the Department of Agriculture and Markets, Division of Food Safety and inspection. AML Section 305(2) prohibits local governments from regulating or restricting farm structures or farm practices unless such restrictions bear a direct relationship to the public health or safety. With regard to denial of a kitchen and food preparation, there is no credible evidence that the public health and safety are at risk. Nor has any Danby official or Town Attorney provided evidence that the Proposed mixed use of a residence, tasting room with kitchen and parking was a risk to the Public's health or safety. As such, the ZO's limited use approvals are too restrictive and should be vacated. 7. Mr. Norman stated that a voluntary Site Plan review "would provide a vehicle to develop a final scope to determine a final classification of the allowed and non -allowed uses, including to determine whether any proposed use is sufficiently similar to an allowed agricultural use such that it can trigger special permit review, a process which the planning board itself can assist with." That "vehicle" did not operate as suggested. However, since the Town has decided it will apply AML whether or not a site is in an Ag district, it should be realized the agricultural uses in an Ag district are not "special uses"(requiring a Special Permit), rather they are constitutionally recognized land uses which are protected by AML section 305-a,subdl. CONCLUSIONS AND REMEDIES If the ZBA determines that the application of local laws, with the modern definition of farm operations, has been unreasonably restricted by the decisions made by the Town's Z0, it would vacate these restrictions and allow (permitted use) a kitchen in the proposed Tasting room and Farm Stand for • food service and preparation of food (kitchen) that is paired with hard cider • processing and packaging apiary and maple sap (final bottling only) and other farm produce Thank you, David L. Jordan On behalf of the Jordan Family and Rogue Creek Cidery and Farm Stand