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HomeMy WebLinkAboutBZA Minutes - November 12, 2019Town of Danby Board of Zoning Appeals Minutes of Hearing and Meeting November 12, 2019 PRESENT: Lew Billington Gary Bortz Toby Dean Earl Hicks (Chair) Betsy Lamb OTHER ATTENDEES: Town Planner Jason Haremza Town Attorney Guy Krogh Town Councilperson Leslie Connors Recording Secretary Alyssa de Villiers Applicants David Jordan, Jed Jordan 1. CALL TO ORDER The meeting was opened at 7:02pm. 2. APPROVAL OF MEETING MINUTES MOTION: Approve minutes from the October 22th meeting Moved by Dean, seconded by Bortz The motion passed. In favor: Billington, Bortz, Dean, Lamb, Hicks 3. DELIBERATION OF THE APPEAL OF ZONING OFFICER INTERPRETATION Appeal by David Jordan, Owner, of a Zoning Officer determination and interpretation dated August 2, 2019 regarding the proposed use of 1582 Danby Road (Tax Parcel 7.1-1-11) for a farm cidery tasting room by Rogue Creek Cidery. The property is in the Low Density Residential Zone. Chairman Hicks explained that this was the continuation of the October 22nd Board of Zoning Appeals (BZA) meeting. The public hearing ended on the 22nd, and the Board was now taking information from that meeting and information they had gathered to deliberate as a team with two consultants present, Town Planner Jason Haremza and Town Attorney Guy Krogh. He noted that board member Betsy Lamb was present this evening, but would only be in a listening role as she was not able to attend the October 22nd 1  BOARD OF ZONING APPEALS MINUTES  meeting. He said the goal was to affirm or reverse Code Officer Norman’s August 2nd findings regarding the Jordans’ application for a permit. There would be no additional public testimony taken. The Board would be considering the information available to Mr. Norman that he used to form his decision. Board member Dean passed out a draft resolution that he had written. He said he tried to pin down the points he saw as relevant. After giving supporting reasoning, the document concludes, “The Board of Zoning Appeals finds that the Commercial Food Processing kitchen is in fact a necessary and appropriate part of Commercial Farm Operations as defined in NYS AML (Agriculture and Markets Law).” Because the draft resolution mentioned another cidery (South Hill Cider) operating with a kitchen in the Town, Board member Bortz asked whether Dean was sure they have a commercially equipped and approved kitchen. Dean answered that he believes it has to be for the Health Department and the Department of Agriculture and Markets (Ag & Markets). Bortz asked about that cidery’s menu, and noted that he is not sure a precedent has been set or not. He said that through his own research, he concluded that a tasting room can have a kitchen in it, but it is not a requirement that it has one; Dean agreed. Bortz expressed concern that any farm cidery that comes into the Town could have a kitchen and food processing and a restaurant with no checks or balances, and said he has a problem with that. He asked who would police whether it was food from a farm being served, and what stops someone from adding more. Hicks said that seemed to be part of Mr. Norman’s concerns—the scope and if the scope becomes too large. The Board was obligated to find out what is allowed in the Zoning Ordinance. In the Low Density Residential (LDR) zone, customary agriculture use is a principally permitted use, but what is customary. Bortz said he saw a tasting room as a marketing extension of a farm stand by which the Jordans can market their product, in this case a cider tasting room. The applicants are considering adding food to pair, but it is still a food processing place in a non-ag district in a zone that says there is not any food processing or restaurants allowed. He did not think that pickling and canning or food processing were farm operations, rather they were secondary, value-added operations to help improve the product to sell and serve. Hicks asked, haven’t farmers always been, and are more and more, creative and entrepreneurial? He would think that, in terms of pickling, if a farmer is growing pickles, any creative way to add value and get them to market makes sense. Bortz said the farm operation is to grow, prep, and bring to market. The preparation is not taking the raw product and converting it into pickles, it would be taking the cucumbers and washing them—these are two different scenarios. Dean said he was basing his thinking on the updated “Guidelines for Review of Local Laws Affecting Direct Farm Marketing Activities,” in which Section D says, “The Department considers these practices to be part of the farm operation as long as the products that are prepared are predominantly composed of ingredients produced on the farm.” He took that to mean that a kitchen capable of processing those things is a part of a farm operation, whereas a kitchen that could prepare food for 150 people a night would be a restaurant; the size of the proposed kitchen is not a very large space (Billington said 23’ x 12’). 2  BOARD OF ZONING APPEALS MINUTES  Board member Billington said that what he highlighted and made notes about were the same points that Dean noted in his draft resolution. He said he was still stumbling on the impact of the Danby right to farm law (Local Law No. 2 of 2009: “A Local Law Related to the Right to Engage in Agricultural Activity in the Town of Danby”) on this and the fact that the entire area was an ag district except for little rectangles of plots where houses are. He said Mr. Norman may have had a lot of it right but for the wrong interpretation. Mr. Norman referenced in his August 2nd letter “the definition of an AML tasting room.” Billington could not find a definition of an Ag & Markets tasting room anywhere, so that was the part in Mr. Norman’s determination that he stuck on. He said he understood what Bortz was saying and had similar concerns, but he disagreed with Bortz’s interpretation because even if you are marketing products at a farm stand, you at least need a kitchen to do the honey. He said Former Town Planner Czamanske charged them to only make a decision on an interpretation, but he thought it had reached a point where it had shoved them into a use variance consideration. If they were to decide the interpretation was not entirely correct, then the next logical thing would be making sure of the verbal promises (parties would not happen, tour buses would not be rolling in, the parking lot would be small, the menu would not expand beyond that which can be carried and eaten by hand). He pointed out that the Town says the BZA has a legitimate responsibility to apply conditions and sanctions. Attorney Krogh noted there was no application for a use variance before the Board. Normally an applicant would apply for both the variance and the appeal to get both dealt with at once, but that did not happen here. Planner Haremza said he concurred, and that if Mr. Norman’s decision was upheld, one possible path forward would be a use variance. The applicants could also withdraw the application on which Mr. Noman’s August 2nd decision was based and submit a new application with more information based on how the project has potentially changed since this past summer. Then the new Zoning Officer (Mr. Haremza) would make a determination based on the new application. In response to a comment from Bortz, Attorney Krogh said that the Town Board, not the Planning Board, would have to change the zoning. In response to a comment from Billington, Attorney Krogh said that now was the time to get into or out of an ag district. The County looks at what is the underlying nature of the use; if they determine that it is more commercial than agricultural, then you will not get in the ag district. The County makes that recommendation; they ask the Town for input, give a formal recommendation to Ag & Markets, and then it gets approved at the State level, and the new maps go out. If someone has a legitimate agricultural reason to be in an ag district, they usually grant it. Haremza added that you can go into an ag district every year, but properties can only be taken out every eight years. Dean read from the Town’s “right to farm” law, Section 3(a), “Any person or persons may lawfully engage in sound agricultural practices within the Town of Danby at any and all such times and all such locations as are reasonable,” and noted it does not say anything about having to be in an ag district. Hicks added that his interpretation of the right to farm law was to give agriculture defined credibility as being a priority in Danby, and that its intention was also to align with Ag & Markets’ definition of agriculture. The Ag & Markets Law just specifically relates to ag districts; technically a lot of the valuable information they have to consider is only related to ag districts. Mr. David Jordan noted they had applied to be in an ag district. He said the 3  BOARD OF ZONING APPEALS MINUTES  decision is pending, but there is no reason it would not be included since it is connected to their main farm; it is a branch facility that does not need to be contiguous property. Mr. David Jordan said that in Mr. Norman’s August 2nd letter he noted that the Town has adopted Ag & Markets’ broader definitions, and asked if that was going to be codified in the Town’s definition of agricultural uses, as it would make the whole conversation simpler if the Town’s definition in the right to farm law was expanded in line with the Ag & Markets Law. He asserted that the broader definition does include food processing and anything that is related to added value to promote the sale of on-farm produce, and that is why you are allowed to have a kitchen. He said it is more than the Webster definition of agriculture, which is tillage—the State has defined it much more broadly. Planner Haremza said that there are many things that need to be addressed in existing Town laws, but the group could not speculate about what might change in the future or apply that retroactively to this application. Attorney Krogh said that Danby’s right to farm law does two things: (1) it gives notice that Danby is a right to farm community; promotion of agriculture is part of the Town’s master plan, which dovetails with the comprehensive plan, and (2) it prevents nuisance lawsuits. As an affirmative regulation, it does not change the Town’s land use laws in any meaningful way. Ag & Markets and the State Liquor Authority have no land use authority. The Zoning Ordinance says “customary agricultural uses” are allowed. The question is, did Mr. Norman apply the word “customary” appropriately in this case? Krogh said you can go by strict construction, what did “customary” mean when the zoning was written, or believe the zoning is a living, breathing thing, and that customary agriculture changes over time. He noted that this is not a farm market or farm stand, it is a tasting room. Nothing meshes perfectly with how the Town’s zoning works, which is why it went to interpretation. The Board was interpreting the menu and business plan submitted by the Jordan’s attorney within the confines of the Town’s zoning—either Mr. Norman got it right, got it partially right, or got it wrong. Billington asked Mr. Krogh about the definition of an Ag & Markets tasting room, to which Krogh said he thought that may be a reference to the State Liquor Authority (SLA) definition. Dean asked how the Board could arrive at something to vote on. Haremza said another option is the Board could reopen the public hearing if they truly felt more information was necessary to obtain new materials as part of the public record, including anything from the SLA on tasting rooms. Krogh noted that applicants have the right to hear, contest, and respond to any new evidence. Bortz said the local law is the final say; it trumps the State Liquor Authority, Ag & Markets Law, and the Health Department. Dean asked if it is the SLA that suggests they have food available, to which Mr. David Jordan said yes. Bortz read briefly from the SLA’s “What Can You Do As a Craft Beverage Manufacturer?”, which says, “…craft manufacturers are only required to provide snacks, such as potato chips or pretzels…” He said that if local law says you cannot have a restaurant, it does not mean that, because someone has approval from the SLA, they can have one. Responding to Bortz, Mr. David Jordan said that this has been a point of contention since day one. Because they introduced a kitchen of some capacity, it became a commercial operation and a restaurant, but they have denied that. They are trying to have a minimum kitchen that meets the minimum standard as reviewed and approved by the Department of Health and Ag & Markets. It is slightly larger than in a 4  BOARD OF ZONING APPEALS MINUTES  residence but comparable. He noted that Mr. Norman says “de minimus” food is fine, but they cannot have a kitchen. He said it keeps coming back to the idea that they have a commercial operation. Ag & Markets defines farm operations as commercial, but not in the sense of the way we use commercial for any other enterprise; farming is a special kind of commercial that is allowed on farm property and does not need to be in a commercial district. He reiterated that they do not want to be a restaurant and are a small operation. He said that, according to Ag & Markets, of course they are allowed to process food as an agricultural operation, so they need a kitchen. Bortz read Number 3 from Former Planner Czamanske’s September 12th letter to the Planning Board, which relates to the type of food service to be offered. Mr. David Jordan said that they had given a response to the memo and asked the Board if they had received it. Bortz said he had a problem with the menu. Based on what Mr. Norman had and why he denied things, he agrees with Mr. Norman’s letter. Hicks said he would think that is a narrow interpretation, not a literal interpretation, of what Ag & Markets says is allowable food. He said there is also an emphasis to promote other products in addition to cider that the farm might be raising. Bortz asked about form, i.e. raw versus processed. Dean said that Ag & Markets talked about offering food as a marketing tool for the products of the farm; he thought providing something roasted to show that is what people can do with it would be related to the marketing of the products. Attorney Krogh gave an extreme example of what Bortz brought up: in considering a chicken farm, having a Frank Perdue processing and distribution center for the retail supermarkets on the east coast would not be an agriculture use even though it is only processing chickens. Where does it go from direct, on-site sales and promotion of farm-grown goods to something more? He noted that a menu was submitted as part of the application. Bortz said one problem he was having was how to know where the food ingredients were coming from. Dean said he thought the only enforcement was going to be the SLA, and only in terms of alcohol. Bortz said that because it is not in an ag district, Ag & Markets law does not apply. Dean said the Danby right to farm law is not restricted to ag districts as far as he saw. Bortz said he did not feel he was in a position to start making what is acceptable, and Hicks said that what they decide is precedent. Billington expressed that he wished they had the opportunity to talk with Mr. Norman. He asked if the kitchen did not bother Mr. Norman as far as sterilizing equipment and processing honey, and it came down to when it became a restaurant. Attorney Krogh said that, while he could not get into Mr. Norman’s head, he generally agreed with that, and that the problem was not with the day-to-day processing of farm goods for sale, the problem was with a bistro-style menu. Hicks confirmed with Bortz that a lot of Bortz’s concerns were the nature of the offering and how processed it was. He asked if Bortz felt that processing was a commercial endeavor unrelated to the fundamentals of a farm operation. Bortz said that he thought the food service operation was not a farm-related operation. He thought the food processing was more a manufacturing operation. Dean asked if Bortz was saying the food should not be processed on the premises but should be done on the main farm. Bortz said he was thinking of the future too—how big will the next cidery that comes in want to be. 5  BOARD OF ZONING APPEALS MINUTES  Dean read from the second-to-last paragraph of Mr. Norman’s August 2nd letter: “Thus, bistro or short-order restaurant services, catering operations, events hosting, a live music venue with late night hours, and commercial food production operations exceed these parameters and are non-allowed uses as currently proposed.” His understanding was the applicants revised their appeal to eliminate late-night music and catering operations and events hosting. He said it was confusing to him because can’t someone set up a commercial kitchen in their home for the productions of something like cookies? Does the zoning prohibit that? Haremza said he thought that would be a manufacturing use. Dean asked about the home occupation concept. Attorney Krogh said that home operations pose the same problem as they have here, in that historically home occupations were dentist, lawyers, doctors, seamstresses and the like, but now they have expanded into many other fields. Haremza said that other municipalities address this by having a very specific definition of what a home occupation is, generally providing a service rather than selling or manufacturing goods. Dean said that did not seem to apply as this is relating to a farm operation. In response to a question from Dean about what the Board was aiming for, Bortz said that he was aiming to uphold Mr. Norman’s letter. He noted that it was not the end of the line for the Jordans. Planner Haremza said the task at hand was to interpret the August 2nd letter based on the information submitted to Mr. Norman prior to that. Information had come out subsequent to that, both from the applicant and research the Board had done, and there is a new zoning officer, so if Mr. Norman’s decision was upheld, the Jordans could either proceed with a use variance, which he would not necessarily advise, or resubmit with the new information. Bortz asked about whether they could pursue a special permit, and the reasons against this were discussed, including that the Planning Board was not comfortable with it. Krogh noted that as applications move forward they can change, and a zoning interpretation that may have been correct or incorrect under one set of facts might change. He said if the Board agreed with Mr. Norman’s interpretation based on the material that was in front of him, and if the application had changed since then, the applicants could submit to the new zoning officer and have the chance of not having to appeal anything. Hicks asked about Scooby Steve’s ice cream (north of the site in question on 96B), and it was thought it had an area variance for setbacks and parking. Dean said that got back to other precedence, and brought up the other existing tasting room (South Hill Cider). Billington said they were in an ag district (which 1582 Danby Rd. is not), and Bortz noted they were also in the LDR zone. Dean described the food at South Hill Cider, and Hicks said that South Hill Cider has a commercial kitchen. Dean noted that this will be an issue that continues to come up in the Town. Hicks said he took issue with the statement of “commercial food production operations.” The other things listed (in that sentence) made sense to him, but he drew the line there. It implies it exceeds these parameters. He said the Board had been trying to dissect what commercial food means and what can of worms this opens up. Part of what the Jordans want this for is to process their honey. Where they are bringing their honey to currently is valuable for the owners and for them, and their kitchen could be that for other beekeepers in the area, which could lead to a larger operation. These are the Pandora’s box-type considerations if they decide to allow it without being able to place any limits on it. Mr. David Jordan said he thought the physical constraints of the space set the limits. He said that Ag & Markets is talking about 6  BOARD OF ZONING APPEALS MINUTES  small-scale food production; they are trying to promote activities on a farm and added value to promote those products. When it becomes a major operation, that is a different enterprise, and it is hard to draw that line, but the Jordans have a small facility. Bortz said someone else might come in with something larger the next time. Haremza added that what the applicants were proposing was based on a given physical description of the project, and should they, or any future owner of the property, wish to expand, that expansion would come before the Town for review under the laws at that time. They cannot speculate what the Town may do to amend the laws in the future; they might choose to put a size restriction on tasting rooms, for example, but tonight was just looking at the August 2nd letter. Dean said they should focus on coming up with a motion relating to the letter to vote on. Hicks noted that they have to back it up with why, and Haremza said that if they choose to uphold it, they are agreeing with Mr. Norman’s research and findings as written in the August 2nd letter, and if they choose to overturn his decision, then they should back that up with rationale as to why they are overturning his determination. Mr. David Jordan asked who wrote the draft resolution passed out at the beginning, and it was clarified that it was Dean. Hicks said he liked that there is an option for the applicants to resubmit for clarity. He asked if everyone on the Board is clear on what was originally proposed. Billington noted that it was prior to the September 30th update of the “Guidelines for Review of Local Laws Affecting Direct Farm Marketing Activities.” Dean asked if it could be as simple as a motion saying the Board finds “Mr. Norman’s letter of 8/2/2019 is the correct interpretation of local Danby zoning law that prohibits food processing in the Low Density zone.” Billington said that might work because the determination was made before some of the information came out. He noted that he read somewhere that said “we never expected farm stands and wine tasting,” and that is what Bortz is talking about—who knows what the Town should expect. He asked about the possibility of zoning changing and the timing of this. Planner Haremza said everyone wishes they had perfect knowledge for every decision they are making, but that is not possible, so they are making a decision to the best of their ability and the best knowledge they have at this time. He spoke to the re- application process. He said he is aware of what the concerns are as expressed by the neighborhood, the Planning Board, and raised before the BZA, and noted the Town now has the advantage of a full-time planner. Attorney Krogh read the second-to-last paragraph of Mr. Norman’s August 2nd letter, He said that when Mr. Norman talked about commercial food production, he thought he was talking about something that goes beyond farm food processing. Farm operations are commercial; to be a farm in an ag district you have to meet a certain amount of sales and have a certain amount of acreage by definition. He thought that Mr. Norman did not conclude the use was not allowed, but that the scope of what was proposed was not allowed in the zoning. The menu was then discussed. Krogh said the tasting room is allowed, but beyond the tasting room, was Mr. Norman right on what the Jordans submitted—does it go beyond what is customary agricultural use and what the zoning allows. Reacting to the motion Dean had just suggested, Bortz suggested taking the wording verbatim from Mr. Norman’s letter. 7  BOARD OF ZONING APPEALS MINUTES  Mr. David Jordan expressed frustration at being back at square one. He said he did not know what new application he could prepare; they went to the Planning Board, they went to the BZA, and are going in a circle. In response to a question, he said they have a building permit for a residence and have not yet applied for a tasting room permit. Mr. Jed Jordan said the crux is who is going to define “commercial food production,” and he said someone has to do it. Bortz answered that he did not feel qualified to make that decision at this point in time and is trying to leave them an avenue. Hicks said that this does allow for minor processing of food products. Jed Jordan said that one interpretation, then, is that Mr. Norman gave them everything they wanted. They could start serving food according to his guidance. He said that at some point there will need to be some agreement on the distinction between commercial food production and agricultural food production, which is also commercial by definition. They are still in the gray area of what is agricultural food production. He said he thought there was an opportunity for the Board to weigh in on that. Is bottling honey or making apiary products agricultural? Some processing has to happen. Given that cheesemaking is an intense processing method whereas pickling is relatively short, how is pickling commercial but cheesemaking agricultural? He said somebody has to step in and say we stand for farming and all of its things. He added that the questions that have come up about scope have already been answered because Ag & Markets defines the scope of menus and foods that are processed and the Town’s Zoning Ordinance defines the scope of how you impact your neighborhood and the capacity of the facility and parking. The voluntary site plan review by the Planning Board was discussed. Haremza pointed out that parking was changed after Mr. Norman’s letter and said much of the Jordans’ work can be reused in a new application. Mr. David Jordan said they are happy to get everyone in agreement on what they are doing, as they are neighbors after all, but he did not know how to recast his application, everything had been said. Billington said he wanted to have some recourse where the Town can say this is what you said, this is what we are holding you to. They want to make sure when the next guy comes down the road they have recourse to say you cannot use that as a precedent, this is how things are done in Danby. Haremza said he appreciates how frustrating this is for the applicants, but it is important the Town follow the legal way to do things. Hicks said it (the reapplication) is a matter of distilling the information based on what has been presented and having heard some of the sensibilities. Attorney Krogh said that Mr. Norman based his decision on what the Jordans proposed as written in their attorney’s letter (on July 14th). He thought he was hearing that what was now proposed is different than what was summarized then. Since there have been changes, they might result in a different determination if re-reviewed. He has not seen the changes, but they may be material. Bortz said the Board is setting policy by their resolution. Attorney Krogh said that they do set precedence by determinations, more so with variances than zoning interpretations. If they interpreted the zoning to say that tasting rooms with commercial kitchens are allowed, then tasting rooms with commercial kitchens would be allowed until such time as the Town reverses that determination based on a different set of circumstances, or a court overturns it, or the Town changes the zoning. Dean suggested a motion that does not get into many specifics. 8  BOARD OF ZONING APPEALS MINUTES  9  BOARD OF ZONING APPEALS MINUTES  MOTION: The BZA finds that John Norman’s letter of 8/2/2019 is the correct interpretation of local Danby zoning law based on materials submitted at that time. Moved by Dean, seconded by Bortz The motion passed. In favor: Billington, Bortz, Hicks Against: Dean Abstain: Lamb Planner Haremza said this does not come up very often, he appreciated that it was a hard job, and thanked everybody for their service and the applicants for their patience. Hicks also thanked the applicants for their patience and Mr. Krogh for coming. 4. CONSIDER APPEAL SUBMITTAL DEADLINES AND OTHER PROCEDURES Haremza said he has prepared a schedule for 2020 laying out all the dates of the meetings. He plans to include a deadline for those. Approximately three weeks prior to the hearing dates all materials will have to be in to the Planner, and if an applicant does not meet the deadline, then they will be scheduled for the following month. This gives the Board more ability to plan their schedules and know if there will be a meeting in any given month. 5. ADJOURNMENT The meeting was adjourned at 9:08pm. (Moved by Billington, seconded by Bortz). ___________________________________________ Alyssa de Villiers – Recording Secretary