HomeMy WebLinkAbout20190625 Jordan - Attorney Jong Letter to Town of DanbyJune 24, 2019
Guy Krogh, Esq.
Thaler & Thaler
309 N. Tioga St # 1
Ithaca, NY 14850
John Czamanske, AICP, Town Planner
1830 Danby Road
Ithaca, NY 14850
Re: Town of Danby Building and Zoning Jordan Estate Vineyard & Orchard, LLC dba
Rogue Creek Cidery
Our file no. 10590-1
Dear Mssrs Krogh & Czamanske:
My office represents Jordan Estate Vineyard & Orchard, LLC dba Rogue Creek Cidery.
We are writing to request reconsideration of the denial of the extension of Applicant's
building permit (attached) for the property at 1582 Danby Rd, Danby, NY (locally and
formerly known as the Johnson Estate). We believe that there is a misunderstanding of
what is intended at the premises. We'd also like to present what we believe are the
applicable legal standards and definitions for the proposed farm and agricultural
activities and why we believe there is no question that the proposed use qualifies as a
permitted use.
What is the applicable zoning and what are the permitted uses?
The land parcel is an area zoned "low density residential." The purpose of this zoning
district is "an area of limited development where it is deemed most desirable to maintain
larger lots for development and permit the possibility of continued agricultural use of
areas without limiting the areas to solely agricultural use." Permitted principal used
include, inter glia, single family dwellings and customary agricultural uses and structures
including roadside stands less than 400 square feet. Permitted accessory uses include
customary farm buildings and roadside stands.
Is there residential use?
Yes. There is a primary residence for one family in the upper level.
Is there agricultural use?
(585) 247-9170 • (585) 247-9171 fax • 2300 Buffalo Road, Building 100A • Rochester, NY 14624 0 www.TracyJongLawFirin.com
Yes. This is part of a larger non-contiguous farming operation in the same town. The
farm produces berries and orchard pomme fruits. The farm also produces honey and
maple syrup.
Applicant's farm operation is a fruit farm that produces berries, honey, maple syrup,
apples and pears and firewood. The farm has 1600 fruit trees (apple, pear, Asian bear
and mulberry), 1500 strawberry plants, 1000 raspberry plants and several hundred
blueberry bushes. This farm operation has been operated by the family for nearly a
decade and is a sustainable agricultural business in the Town of Danby. The existing
farm is in the Agricultural District. This parcel will also be added to the Agricultural
District and should be treated as a start-up farm operation at this site for newly planted
apple orchards. (This process could take as much as a year but it is the intention to
have this included in the adjacent Agricultural District since its use will be for agricultural
purposes and can benefit from the legal protections for farm lands and is a part of the
larger farmlands already in the Agricultural District.)
Is the proposed use consistent with zoning?
Yes. This use supports viable farm operations of an existing farm in the Town and is a
transition use of the land between pure farm and pure residential use. It is a blend of
both.
Applicant's proposed use is consistent with this zoning and its intent. The proposed use
is both residential and customary agricultural uses. The existing structure is intended to
be used as a residence on the upper level. The lower level will be part of a farm
operation of a non-contiguous 95 acre farm operation at 292 East Miller Road, a
distance of 1.4 miles from this parcel. Specifically, the uses include direct retail sales of
farm products, production of maple syrup, honey and other food products produced
from the farm's resources, and a small branch office tasting room of a farm
winery/cidery.
Do the products sold come directly from the farm?
Yes. The fruit, honey, maple syrup and cider are made from the farm's harvests.
Are the activities taking place recognized as agricultural uses?
Yes. The activities include production of the honey and maple syrup and the direct sale
to the public of fruit, cider, honey and syrup produced on the farm.
This second non-contiguous location of the larger farm operation will have an apple
orchard and various other agricultural garden products (herbs for example). It will have
a farm stand for the seasonal outdoor sale of the fresh produce, honey and maple
syrup, all of which is produced by the farm itself. Additionally, the structure will have an
(585) 247-9170 • (585) 247-9171 fax • 2300 Buffalo Road, Building IOOA 0 Rochester, NY 14624 • www.TracyJongLawFirm.com
updated commercial kitchen area as required under state law for the production of
pickled vegetables and honey from the farm's raw products. Maple syrup will also be
produced in the commercial kitchen (although not required to be done in a commercial
kitchen). The premises will not be used for production of wine/cider itself. It will be used
for production of the maple syrup and honey, and from time to time other fruit,
vegetables, honey and maple based edible products that legally require a commercial
kitchen for production and sale. The retail area/tasting room will be used to retail the
farm products, both fruit itself and higher value-added products made with the fruit,
cider, honey and syrup grown/harvested on the farm itself.
According to a Cornell study on the hard cider business, the economic success of a
cidery is substantially increased with a tasting room where the product can be tasted
and retailed. These are preferably located on a high -traffic road. Additionally, these
retail functions are not legally allowed in the bonded wine production premises
(wine/cider production facility) under federal law and TTB guidelines. They must
necessarily be done in a non -bonded area of the farm or structure. In the case at hand,
applicant farm operator seeks to do it at this non-contiguous location of the farm
operation in a structure suited to such use year-round rather than in an ill-suited existing
structure at the main farm. This location is along a well -travelled road as suggested in
the Cornell study as a key factor.
The farm winery/cidery branch office will be limited to those products that can be sold at
a farm winery and cidery under New York Alcoholic Beverage Law. The business will
primarily be seasonal and relatively low-volume. Applicant is not adding a retail on -
premises restaurant, rather, will offer a limited menu for sale with by the glass sales (as
preferred and/or required by the State Liquor Authority to slow the consumption of
alcohol). This will also enable a few promotional activities common to sales of farm
wine/cider products such as cider -food pairing events aimed at sales of the farm
products.
These activities are "farm operations" and "direct farm marketing" as it is described in
New York Agriculture and Markets Law. The activities are directly intended to sell the
products grown and harvested on the farm itself. Facilities for the on-site preparation of
processed foods (e.g. a kitchen), as well as facilities for consumption of foods (e.g., a
tasting room) are considered as part of the farm operation as long as the products that
are prepared are predominantly ( currently exclusively) composed of ingredients
produced on the farm. In this case, the products produced are predominantly produced
from the farm's fruits. AML §301(11) "farm operation" — "... means the land and on-farm
buildings, equipment,... and practices which contribute to the production, preparation
and marketing of crops, livestock and livestock products as a commercial enterprise....
Such farm operation may consist of one or more parcels of owned or rented land, which
parcels may be contiguous or noncontiguous to each other." The definition of "crops,
585) 247-9170 • (585) 247-9171 fax • 2300 Buffalo Road, Building 100A • Rochester, NY 14624 • www.TracyJongLawFirin.com
livestock and livestock products" as contained in AML §301(2) (b) "[f]ruits," includes
"...apples, peaches, grapes, cherries and berries," §301(2) (f) "maple sap" and §301(2)
0) "apiary products, including honey." The on-farm "production, preparation and
marketing" [AML §301(11)] of apples, honey and maple syrup and other fruits are
considered part of a farm operation. The Department of Agriculture and Markets
considers agricultural commodities produced "on-farm" to include any products that may
have been produced by a farmer on his or her "farm operation," which could include a
number of parcels owned or leased by that farmer throughout a town, county, or the
State. The Department of Agriculture and Markets considers the processing, and
fermentation activity and the on-farm buildings and equipment which are needed to
produce, store, and/or ferment fruits as part of the farm operation to the extent that the
fermented product, cider and/or wine that is prepared is composed predominantly of
fruits produced on the farm. In addition, the on-farm marketing of cider and wine, when
the cider and wine is composed predominantly of on-farm produced fruits, is part of the
farm operation.
Are there commercial uses other than farm operations?
No. There is no restaurant or event venue. There is a farm stand and tasting room for
retail sales of the farm's products. The Health Department permits are for limited food
service (level 2).
Is the intended use low -impact?
Yes, the occupancy is less than 25 people. There is off-street parking
Having established that the proposed activities are in fact farm and agricultural uses, we
now turn to whether they fit into the low-density zone. The size and nature of the
activities must be taken into account when evaluating their appropriateness of the
proposed farm activities for the zoned area that is intended for agricultural activities and
residential use. The proposed nature of the farm activities are on a small scale and is
not in the nature of an event venue or a restaurant. The occupancy is 25 or less. The
tasting room seating accommodates approximately 20 people when staff is taken into
account in the maximum occupancy. Health and safety of the general public is not
negatively impacted by the proposed activities. There are appropriate sanitary facilities,
on-site parking and the required building permits and state licenses are being dutifully
obtained. This is not intended to host large events or draw large crowds. There will be
constructed sufficient parking on the property to accommodate such use. Thus, when
the size and nature of the activities are taken into account, applicant believes its
proposed use is consistent with the low density zoning.
(585) 247-9170 • (585) 247-9171 fax • 2300 Buffalo Road, Building 100A • Rochester, NY 14624 • www.TracyJongLawFirm.com
Do the neighbors object to the proposed use?
No. A petition in support is attached.
Would the denial of the building permit extension create a hardship?
Yes. Such a drastic change in interpretation with no legal basis creates a severe
hardship and diminishes the intended use of the property and investment in construction
already made by the property owner. This location has also already been approved by
the State Liquor Authority (see attached). The cost and expense of re -applying for
another location is substantial and would cause the Applicant to essentially miss the
2019 Fall harvest season and the opportunity to participate in Finger Lakes agritourism
during this season. We believe this action was arbitrary and capricious. The Town has
previously permitted an ice cream stand on a horse farm and a full bar (now a day care
center) in the Agricultural District and agricultural zone in the Town. Those are far less
agricultural uses than the proposed activities on this property (we believe pure
commercial uses unrelated to farm operations or selling the farms products)
Applicant respectfully requests that the Town reconsider its denial of an extension of the
building permit due to zoning concerns. We welcome the opportunity to provide
additional information and continue the conversation if Town Officials have concerns
that have not been addressed.
Respectfully,
WacA
Tracy Jong
Encl.
CC: Richard Dietrich, Town Supervisor
(585) 247-9170 • (585) 247-9171 fax • 2300 Buffalo Road, Building 100A • Rochester, NY 14624 0 www.TracyJongLawFirin.com
T
BUILDING PERMI`1'
Town of Danby, New York
U, 4is is to (Intify That a Building Permit has been issued to
DAV I D --ZO—ILDOW
to erect, alter, move, demolish or repair a building as follows, in
accordance with all Laws, Rules & Regulations applicable thereto,
4CW4VMjLr 6tucaLp— F*IKIL-y ""jD"C'F--0
A FARM OPRJF-+-11C*4 ACC-r-55bV-Y -rA6-nJ--JG(-
Operation ROOM Ac 3, Bazw000n .47r. Date of Permit
Address 1582— VA#41��/ 9%CL&D Expiration 4 1 S -
Owner of Land -DAV10 Special
Tax Parcel #:
Signed —PS
ZONING �FFKER/IBUILDING OFFICIAL
THIS PERMIT MUST BE POSTED AT THE PLACE WHERE THE WORK IS IN PROGRESS
1415
NEW YORK
STATE OF
OPPORTUNITY_
ANDREW M. CUOMO
Governor
State Liquor
Authority
CONDITIONAL LETTER OF APPROVAL
DATE 04/24/2019
193TOMPFB3161739623
SERIAL NUMBER 3161739
JORDAN, DAVID L
100 W 57TH ST
NEW YORK, NY 10019
VINCENT G. BRADLEY
Chairman
LILY M. FAN
Commissioner
GREELEY FORD
Commissioner
Premise Address
JORDAN ESTATE VINEYARD AND ORCHARD LLC
ROGUE CREEK CIDERY
1582 DANBY RD
ITHACA, NY 14850
Your application for a license has been reviewed and can be approved once you have complied
with all of the conditions on the attached page.
Once you have submitted all of the required information, the documentation you provide will be
reviewed and, if all of the items have been addressed to the satisfaction of the State Liquor Authority,
your application can be approved and the license certificate issued.
No license will he issued until, and unless. all of the conditions have been met. YOU MUST BE READY
TO OPEN AND BEGIN OPERATIONS UPON THE LSSUANCE OF THE LICENSE CERTIFICATE
The application will be deemed disapproved if you fail to submit all required documentation within
six months from the date of this letter. If you cannot comply within the 6 month period, you must
seek an extension of time by submitting a request in writing to the Authority.
If you wish to withdraw your application, you must request your withdrawal in writing. The State
Liquor Authority will then disapprove your application without prejudice to your refiling at a future
date and will process your refund (less the filing fee).
All communications should be sent to Condapproval@sla.ny.gov or the address as
indicated at the bottom of the page.
Sincerely Yours,
Jacqueline Held, Deputy Commissioner
NOTE: FAILURE TO COMPLY WITH THE ATTACHED CONDITIONS WITHIN 6 MONTHS FROM 04/24/2019 WILL
NECESSITATE THE DISAPPROVAL OF THIS APPLICATION.
cc: DAVID L JORDAN
292 E MILLER RD
ITHACA, NY 14850
Iskalo Electric Tower Building, 535 Washington St., Suite 303, Buffalo, NY 14203
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CONDITIONS OF APPROVAL // 3161739
The conditional approval is granted upon adherence to any conditions listed below as well as any conditions
stipulated to with the municipality or community board or full board.
1. Photos of the entire interior showing ready to open and operate including the tasting
room, kitchen, storage, office, utility room, entire basement, etc.
2. Photos of the exterior of the premises showing ready to open and operate including
showing how the patio is completely delineated and contained and accessed from
inside the premises.
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IN SUPPORT OF FARM SALES USE OF 1582 DANBY ROAD
Rogue Creek Cidery • Rogue Creek Farm
A family farm operated by David, Jed, Barbara Jordan and family
Danby Town Board
Danby Town Supervisor, Ric Dietrich
Danby Code Enforcement Officer, John Norman
Danby Town Planning and Zoning Officer, John Czamanske
1830 Danby Road
Ithaca, NY 14850-9419
DEAR TOWN OF DANBY,
We the neighbors of 1582 Danby Rd have been informed of the property owners' intentions
for new use of the property in conjunction with their farm located on East Miller Rd. which
include:
• Converting lower portions of house for use as a hard cider tasting room serving the public
9 Using converted space for production and sales of farm -based goods
i
• Working with the Town and County Health Dept. to comply with any improvements that
are required (such as expanded parking and water filtration) to permit such uses
We understand that these changes may impact the aesthetic of the surrounding area and that
the owners have expressed an intention to minimize any undesired impacts by continuing
to seek input and respond to concerns from other property owners in the neighborhood
related to these new uses.
By signing this letter, we therefore support the above activities and do not object to these
activities being permitted by the Town of Danby.
Signed:
4i4A
Address: Date:
15 7 (Y 4m 6y
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of any well to find or produce any Natural Gas or other hydrocarbons, or (v) any storage,
staging, processing, or treatment areas, structures, or improvements relating to Natural
Gas, petroleum, or any related hydrocarbons, Natural Gas and/or Petroleum Exploration
and Production Materials, or Natural Gas Exploration and/or Petroleum Production
Wastes, or (vi) any disposal of Natural Gas Exploration and/or Petroleum Production
Wastes, or (vii) the erection or construction of any derrick, building, or other structure, or
placement or use of any machinery or equipment, for any such purposes. The above
restrictions shall not be construed to: (a) prevent or prohibit the transmission of Natural
Gas or related hydrocarbons through utility pipes, lines, or related appurtenances for the
limited purpose of supplying utility services to residents of the Town of Danby; (b)
prevent or prohibit the siting or permitting of a Gasoline Service Station or an
Automotive and Other Motorized Vehicle Repair Facility where otherwise allowed under
this Zoning Ordinance; or (c) prevent or prohibit the incidental and normal storage or use
of reasonable and customary amounts of Natural Gas and other hydrocarbons in relation
to any other use that is lawful under this Zoning Ordinance, such as home heating storage
facilities (e.g., propane tanks), gasoline pumps and storage tanks, and similar uses that are
normally associated with allowed residential, business, commercial, and Light Industrial
uses permitted pursuant to and under this Zoning Ordinance."
Section [2-13] 519 [2-13] - INVALIDITY OF OTHER
GOVERNMENTAL PERMITS. No permit issued by any local, state or federal
agency, commission or board shall be deemed valid within the Town of Danby when
such permit purports to allow or permit a land use or operation that would violate the
prohibitions, terms, requirements, or conditions of this Zoning Ordinance. [3-11 ]
ARTICLE VI: ZONE REGULATIONS
Section 600 - LOW DENSITY RESIDENTIAL ZONE. The purpose of the Low
Density Residential Zone is to provide an area of limited development where it is deemed
most desirable in the Town to maintain larger lots for development and permit the
possibility of continued agricultural use of the areas without limiting the areas to solely
agricultural uses.
1. PERMITTED PRINCIPAL USES.
a. One single-family or one two-family dwelling per lot provided that each
dwelling unit is occupied by no more than one family.
b. Public utility structures.
C. Customary Agricultural Uses and structures, including roadside stands not
exceeding 400 square feet, provided, however, that no storage of manure
or any permanent use of land or buildings producing offensive odor or
dust shall be permitted within 25 feet of any side or rear property line.
IM
2. PERMITTED ACCESSORY USES.
a. Private garage, either attached or unattached to the principal building.
b. Home occupations provided that there shall be no external evidence of
such activity on the site except a sign denominating such occupation not
over ten square feet in area. Any such sign shall be nonflashing and, if
illuminated, shall be shielded as much as possible from adjacent
residences.
C. One residential storage building per lot not to exceed 400 square feet in
total area.
d. Private swimming pool, tennis courts, and other similar recreational
facilities for the principal private use of the occupants of the dwelling.
e. Customary farm buildings such as barns, silos, livestock enclosures,
storage buildings and similar structures.
f. Roadside stands not in excess of four hundred square feet of interior area
and selling only products produced on the same lot or produced on land
within a ten mile radius of the location of the stand.
3. USES PERMITTED BY SPECIAL PERMIT ONLY.
a. Churches and similar religious institutions.
b. Hospitals.
C. Public schools, parks and playgrounds.
d. Public library.
e. Nursery schools, group family day care homes, and day care centers.
f Municipal buildings and structures.
g. Cemeteries.
h. Private playground, athletic field and group swimming pools.
i. Tourist homes.
j. Customary home occupations and professional residential offices where
external visible evidence of same exists on the site.
11
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