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HomeMy WebLinkAboutMN-CC-1989-11-14;F J e� Special Meeting PRESENT: Mayor Gutenberger Alderpersons (9) - 1 COMMON COUNCIL PROCEEDINGS CITY OF ITHACA, NEW YORK 8:00 A.M. Common Council November 14, 1989 November 14, 1989 Cummings, Hoffman, Killeen, Peterson, Lytel, Romanowski, Schlather, Nichols, Booth ABSENT: Alderperson Johnson (excused) OTHERS PRESENT: City Clerk - Paolangeli City Attorney - Nash Deputy Planning and Development Director - Mazzarella PLEDGE OF ALLEGIANCE: Mayor Gutenberger led all present in the Pledge of Allegiance to the American flag. SPECIAL ORDER OF BUSINESS: Planning and Development Committee - Industrial Zone Amendment /Negative Declaration Resolution By Alderperson Cummings: Seconded by Alderperson Killeen WHEREAS, the matter of amending the regulations pertaining to the I -1 Zoning District is currently being considered by this Common Council, and WHEREAS, appropriate environmental review has been conducted, including the preparation of a Short Environmental (Woo� Assessment Form (SEAF), and WHEREAS, it appears that the proposed action is an "unlisted" action under the State Environmental Quality Review Act (SEQR), including the Part 617 regulations thereunder, and may be a Type I action under the City Environmental Quality Review Act (EQR Section 36.5 (B) (5)), and WHEREAS, it appears that the proposed action will not have a significant effect on the environment within the City of Ithaca; now, therefore, be it RESOLVED, that this Common Council, as lead agency in this matter, be and it hereby does adopt as its own the findings and conclusions as set forth on the Short Environmental Assessment Form dated September 28, 1989, and be it further RESOLVED, that this Common Council, as lead agency be and it hereby does determine that the proposed action will not have a significant effect on the environment within the City of Ithaca, and that further environmental review is unnecessary under the circumstances, and be it further RESOLVED, that this resolution shall constitute notice of this (400'el negative declaration and the City Clerk be and she is hereby directed to file a copy of the same, together with the attachment, in the City Clerk's office and forward the same to any other parties as required by law. Alderperson Cummings expressed her thanks to the Conservation Advisory Council for reviewing this document, on request by Common Council on such short notice. The following document prepared by the CAC was entered into the record: 231 2 Common Council November 14, 1989 CAC REVIEW OF EAF AND LEAF FOR AN ORDINANCE AMENDING (SECTIONS 30.25 AND 30.26 OF CHAPTER 30 ENTITLED 'ZONING' OF THE CITY OF ITHACA MUNICIPAL CODE I. Comments on the proposed ordinance: 1. The proposed amendments will put the Board of Zoning Appeals and the Common Council in the process of "permitting " ....... they may, in the future, approve a project of "significant harmful impact ", possibly without the requirement of an EAF or EIS. 2. Is there a need to "grandfather" existing operations within the zoning areas affected? 3. The proposed amendments appear to be "friendly" to the environment. II. Comments on the EAF and LEAF 1. The forms used do not seem to be appropriate for a review of this kind.... zoning changes. 2. There are some inconsistencies between the LEAF, Part I and LEAF, Part 2, For example, in the Part I -B -2 there is a comment that "large amounts of (soil) material may be removed or added (in the future), while in the Part 2 -1, "NO" is checked in response to the question of physical change to the project site. "NO" was also checked in the same question on the SEAF. 3. On Part 2 of the LEAF, "SMALL TO MODERATE IMPACT" was checked by the preparer for Items 4,5,6, and 7 and comments were made as to "benefits possibly to be derived ". While we agree with this, we felt the form is designed to be used to identify negative impacts. 4. In the LEAF, Part 2, Items 18 and 19 were checked "NO ". Item 18, section 5 questions whether the "project will set an important precedent for future projects" and Item 19 questions whether there is "public controversy" concerning the project. We felt that both items should have been checked "YES" and if this is done, then it appears as if an LEAF, Part 3 is in order. Respectfully: Roger Farrell Judy Jones John Wertis Discussion comments. followed on the review process and on the CAC Alderperson Peterson questioned how comments were handled and referred to comment 4 on the CAC report. Deputy Planner Mazzarella responded that when they receive comments from the CAC they do not always make changes as the review is already complete. He further stated that it is up to Council to decide whether to make those changes or not. Alderperson Cummings stated that the Planning staff was involved in reading and evaluating the review itself. Her personal response to 4 of the CAC review was that the public controversy concerning the project was one of those confusions between the generic and the specific. The public controversy is the CPF 0 i i�lr 01 rather than the zoning change. Common Council November 14, 1989 Alderperson Killeen stated for the record that Council should answer question #2• "Is there a need to 'grandfather' existing operations within the zoning areas affected ?" Alderperson Cummings stated that existing operations are always grandfathered. She further stated that it would be a good idea, (4wel given the strong importance of this, to have the answers to these questions included in a follow -up sheet and filed for the record. A vote on the resolution resulted as follows: Carried Unanimously Amendment to Zoning Ordinance 4, Resolution By Alderperson Cummings: Seconded by Alderperson Schlather AN ORDINANCE AMENDING SECTIONS 30.25 AND 30.26 OF CHAPTER 30 ENTITLED "ZONING" OF THE CITY OF ITHACA MUNICIPAL CODE BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New York, as follows: SECTION 1. AMENDING SECTION 30.25 OF CHAPTER 30. 1. That Column 2, Permitted Primary Uses, is hereby amended to (moo", read as follows under the "I -1" use district: 1. Any use permitted in B -5 district, except that dwelling units are prohibited. 2. Industrial, warehousing, storage and handling of bulk goods (not including rubbish as defined in Chapter 69, Section 69.1 N), lumberyards, and agriculture except that no animals may be kept within 50 ft. of any property line. 3. Any use not permitted in any other zoning district, subject to the issuance of a special permit of the Board of Zoning Appeals in accordance with Section 30.26 and concurrence by the Common Council. 4. All uses must conform to special performance standards governing establishment of industrial uses (See Section 30.41). SECTION 2. AMENDING SECTION 30.26(C) OF CHAPTER 30. 1. That Section 30.26(C)(1) is hereby amended to add the following: p. Any use not permitted as of right in the I -1 zoning district. SECTION 3. AMENDING SECTION 30.26(C) OF CHAPTER 30. 1. That Section 30.26(C) is hereby amended to add Subsection 5 as follows: r � S1 1 -4- 5. In the I -1 zone, uses other than those permitted under Section 30.25 may be permitted by special permit upon a finding by the Board of Zoning Appeals and concurrence by the Common Council that such use shall have no negative impact by reason of noise, fumes, odors, vibration, noxious or toxic release, or other conditions injurious to the health or general welfare. SECTION 4. EFFECTIVE DATE This ordinance shall take effect immediately and in accordance with law upon publication of a notice as provided in Section 3.11(B) of the Ithaca City Charter. Alderperson Cummings stated for the record that it is the understanding of the Planning and Development Committee that this zoning change was a clarification, a making more explicit of what we believed to be the intent, the implicit content of the ordinance. She further stated that P & D wanted to make very clear that rubbish was a use which was not an automatic permitted use but rather a use which would be rubbish handling or storage as something which would have to comply with special performance standards. The intent of this ordinance is to make the application of the special performance standards clearly necessary in the case of rubbish and indeed to make the application of the special performance standard something which is carefully and cautiously done subject to the scrutiny of the Board of Zoning Appeals and Common Council, as well of course, as any City type 1 action subject to environmental review. Mayor Gutenberger asked Alderperson Cummings to clarify for the record the meaning of this zoning change. Alderperson Cummings stated that the way the zoning chart works is accumulative, this is not a permitted use in any of the preceding sections of the zoning chart. This is the first time in which this use is mentioned, and is mentioned as something which is not permitted as a matter of right but only under compliance with the special performance standards. It is not a use that will be permitted in the other preceding zones. Alderperson Booth stated for the record: 1) If every municipality tried to do this we wouldn't be able to handle the garbage anywhere and he does not think that's wise. He thinks this is a mistake. 2) Whatever the stated intention, this is being done with the intention of barring the County from placing a baling station in the City, and he seriously doubts that this will have any legal effect on the County's operations. He finds it hard to believe that a Court in this State would not allow the County to locate a garbage facility that serves the larger public interest. 3) If those of you who are going to vote for this, and he assumes that it's going to pass, believe that this is going to protect the environment, he would urge that you read what is allowed in industrial uses. Many kinds of uses that involve the storage of use of chemicals continue to be allowed. Simply by making it either very difficult or impossible to locate a baling station isn't going to protect the environment the way some of you have claimed. 4) A number of Council members have made the argument that the City's land is too precious to utilize for a baling station and he thinks that doesn't hold water. There are numerous uses of City land that do not serve the broader public interest, they serve very narrow private interest. He stated he was not arguing for a moment that a baling station might not have some negative impacts, but there are many uses of City land that would not serve broader public interest to nearly a degree that a baling station would. Alderperson Booth further stated that every municipality outside the City will respond to a proposal to place a baling station there with a comment "we don't generate the garbage, why should a baling station be located in our community, or we generate only a very small percentage of the D It -5- garbage ". The fact of the matter is, Ithaca is far and away the largest generator of solid waste in the County and it is irresponsible for the City to try to turn our back on dealing with garbage issues in this County. Finally, to make Common Council a decision maker on a permit is simply a foolish action and he would vote against it for that reason alone. Mayor Gutenberger asked City Attorney Nash if State law permits Common Council veto power over the Board of Zoning Appeals? Attorney Nash responded that the City can establish this type of procedure. If there were no Board of Zoning Appeals then Common Council would act as the reviewing power for granting variances under the zoning ordinance. If the City wanted they could set up a two tier decision making process. Mayor Gutenberger asked City Attorney Nash if a decision of the BZA can be vetoed by Common Council. City Attorney Nash responded "No, not normally. Common Council pursuant to its ordinances has set up a Board of Zoning Appeals to hear appeals and has set up a procedure for appeal. Normally Common Council does not review BZA decisions." Discussion followed on the veto power of Common Council. Alderperson Cummings responded that in regard to the question of having a dual system in place the Planning and Development Committee was most careful about this. She referred to a memo from Attorney Nash dated September 6, 1989 which concludes as follows: "Should the BZA attach certain conditions for issuing a special permit Council may modify these conditions and grant approval without referring the modifications to the BZA for their review. She stated that there was concern regarding the working relationship between the two and she was satisfied that it is a legal. and working system. Mayor Gutenberger asked if the BZA attaches conditions to their granting of the permit, can Common Council without further action by BZA, alter those conditions? Alderperson Cummings answered "yes ". Mayor Gutenberger stated he believes this is a dangerous precedent. Alderperson Schlather stated that he wished to respond to Alderperson Booth's remarks. He thinks that it is incumbent upon any municipality to protect its citizenry. The question of disposal of waste certainly is a legitimate question. The question of disposing of a region's waste is another question altogether. He does not find this any more offensive than he would a resolution that might establish Ithaca as a nuclear free zone or decide that we are not going to allow the location of a power generating facility in the City. There are certain planning considerations that would preclude the establishment of such an operation that is either so large in size or so offensive in character that it would be contrary to the interests of its citizens. Alderperson Schlather stated that even though, perhaps, this ordinance was catalyzed by a problem on Commercial Avenue he thinks its salutory affect will be known throughout the City in all Industrial Zones to the extent that the City will in effect be taking a, closer role in establishing controls over uses of this property. Alderperson Booth responded that in terms of establishing nuclear free zones, the federal government has preempted that area and does not allow local governments to do it. With regard to establishing power plants the State of New York has absolutely preempted that area and does not allow municipalities to make those decisions. Mayor Gutenberger stated to Common Council once again that he has real concerns with the fact that Common Council has opened the door to veto the action of BZA and that Common Council can take actions without the input of the Board they established to do what the Charter empowers them to do. The Mayor also stated that in his opinion this was bad legislation. A vote on the resolution resulted as follows: Ayes (7) - Schlather, Romanowski, Lytel, Cummings, Nichols, Killeen, Peterson Nays (2) - Booth, Hoffman ADJOURNMENT On a motion the meeting adjourned at 8:30 a.m. llCallista F. Paolangel3 City Clerk Carried i G h Gutenberger ayor FM ;F J e� Special Meeting PRESENT: Mayor Gutenberger Alderpersons (9) - 1 COMMON COUNCIL PROCEEDINGS CITY OF ITHACA, NEW YORK 8:00 A.M. Common Council November 14, 1989 November 14, 1989 Cummings, Hoffman, Killeen, Peterson, Lytel, Romanowski, Schlather, Nichols, Booth ABSENT: Alderperson Johnson (excused) OTHERS PRESENT: City Clerk - Paolangeli City Attorney - Nash Deputy Planning and Development Director - Mazzarella PLEDGE OF ALLEGIANCE: Mayor Gutenberger led all present in the Pledge of Allegiance to the American flag. SPECIAL ORDER OF BUSINESS: Planning and Development Committee - Industrial Zone Amendment /Negative Declaration Resolution By Alderperson Cummings: Seconded by Alderperson Killeen WHEREAS, the matter of amending the regulations pertaining to the I -1 Zoning District is currently being considered by this Common Council, and WHEREAS, appropriate environmental review has been conducted, including the preparation of a Short Environmental (Woo� Assessment Form (SEAF), and WHEREAS, it appears that the proposed action is an "unlisted" action under the State Environmental Quality Review Act (SEQR), including the Part 617 regulations thereunder, and may be a Type I action under the City Environmental Quality Review Act (EQR Section 36.5 (B) (5)), and WHEREAS, it appears that the proposed action will not have a significant effect on the environment within the City of Ithaca; now, therefore, be it RESOLVED, that this Common Council, as lead agency in this matter, be and it hereby does adopt as its own the findings and conclusions as set forth on the Short Environmental Assessment Form dated September 28, 1989, and be it further RESOLVED, that this Common Council, as lead agency be and it hereby does determine that the proposed action will not have a significant effect on the environment within the City of Ithaca, and that further environmental review is unnecessary under the circumstances, and be it further RESOLVED, that this resolution shall constitute notice of this (400'el negative declaration and the City Clerk be and she is hereby directed to file a copy of the same, together with the attachment, in the City Clerk's office and forward the same to any other parties as required by law. Alderperson Cummings expressed her thanks to the Conservation Advisory Council for reviewing this document, on request by Common Council on such short notice. The following document prepared by the CAC was entered into the record: 231 2 Common Council November 14, 1989 CAC REVIEW OF EAF AND LEAF FOR AN ORDINANCE AMENDING (SECTIONS 30.25 AND 30.26 OF CHAPTER 30 ENTITLED 'ZONING' OF THE CITY OF ITHACA MUNICIPAL CODE I. Comments on the proposed ordinance: 1. The proposed amendments will put the Board of Zoning Appeals and the Common Council in the process of "permitting " ....... they may, in the future, approve a project of "significant harmful impact ", possibly without the requirement of an EAF or EIS. 2. Is there a need to "grandfather" existing operations within the zoning areas affected? 3. The proposed amendments appear to be "friendly" to the environment. II. Comments on the EAF and LEAF 1. The forms used do not seem to be appropriate for a review of this kind.... zoning changes. 2. There are some inconsistencies between the LEAF, Part I and LEAF, Part 2, For example, in the Part I -B -2 there is a comment that "large amounts of (soil) material may be removed or added (in the future), while in the Part 2 -1, "NO" is checked in response to the question of physical change to the project site. "NO" was also checked in the same question on the SEAF. 3. On Part 2 of the LEAF, "SMALL TO MODERATE IMPACT" was checked by the preparer for Items 4,5,6, and 7 and comments were made as to "benefits possibly to be derived ". While we agree with this, we felt the form is designed to be used to identify negative impacts. 4. In the LEAF, Part 2, Items 18 and 19 were checked "NO ". Item 18, section 5 questions whether the "project will set an important precedent for future projects" and Item 19 questions whether there is "public controversy" concerning the project. We felt that both items should have been checked "YES" and if this is done, then it appears as if an LEAF, Part 3 is in order. Respectfully: Roger Farrell Judy Jones John Wertis Discussion comments. followed on the review process and on the CAC Alderperson Peterson questioned how comments were handled and referred to comment 4 on the CAC report. Deputy Planner Mazzarella responded that when they receive comments from the CAC they do not always make changes as the review is already complete. He further stated that it is up to Council to decide whether to make those changes or not. Alderperson Cummings stated that the Planning staff was involved in reading and evaluating the review itself. Her personal response to 4 of the CAC review was that the public controversy concerning the project was one of those confusions between the generic and the specific. The public controversy is the CPF 0 i i�lr 01 rather than the zoning change. Common Council November 14, 1989 Alderperson Killeen stated for the record that Council should answer question #2• "Is there a need to 'grandfather' existing operations within the zoning areas affected ?" Alderperson Cummings stated that existing operations are always grandfathered. She further stated that it would be a good idea, (4wel given the strong importance of this, to have the answers to these questions included in a follow -up sheet and filed for the record. A vote on the resolution resulted as follows: Carried Unanimously Amendment to Zoning Ordinance 4, Resolution By Alderperson Cummings: Seconded by Alderperson Schlather AN ORDINANCE AMENDING SECTIONS 30.25 AND 30.26 OF CHAPTER 30 ENTITLED "ZONING" OF THE CITY OF ITHACA MUNICIPAL CODE BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New York, as follows: SECTION 1. AMENDING SECTION 30.25 OF CHAPTER 30. 1. That Column 2, Permitted Primary Uses, is hereby amended to (moo", read as follows under the "I -1" use district: 1. Any use permitted in B -5 district, except that dwelling units are prohibited. 2. Industrial, warehousing, storage and handling of bulk goods (not including rubbish as defined in Chapter 69, Section 69.1 N), lumberyards, and agriculture except that no animals may be kept within 50 ft. of any property line. 3. Any use not permitted in any other zoning district, subject to the issuance of a special permit of the Board of Zoning Appeals in accordance with Section 30.26 and concurrence by the Common Council. 4. All uses must conform to special performance standards governing establishment of industrial uses (See Section 30.41). SECTION 2. AMENDING SECTION 30.26(C) OF CHAPTER 30. 1. That Section 30.26(C)(1) is hereby amended to add the following: p. Any use not permitted as of right in the I -1 zoning district. SECTION 3. AMENDING SECTION 30.26(C) OF CHAPTER 30. 1. That Section 30.26(C) is hereby amended to add Subsection 5 as follows: r � S1 1 -4- 5. In the I -1 zone, uses other than those permitted under Section 30.25 may be permitted by special permit upon a finding by the Board of Zoning Appeals and concurrence by the Common Council that such use shall have no negative impact by reason of noise, fumes, odors, vibration, noxious or toxic release, or other conditions injurious to the health or general welfare. SECTION 4. EFFECTIVE DATE This ordinance shall take effect immediately and in accordance with law upon publication of a notice as provided in Section 3.11(B) of the Ithaca City Charter. Alderperson Cummings stated for the record that it is the understanding of the Planning and Development Committee that this zoning change was a clarification, a making more explicit of what we believed to be the intent, the implicit content of the ordinance. She further stated that P & D wanted to make very clear that rubbish was a use which was not an automatic permitted use but rather a use which would be rubbish handling or storage as something which would have to comply with special performance standards. The intent of this ordinance is to make the application of the special performance standards clearly necessary in the case of rubbish and indeed to make the application of the special performance standard something which is carefully and cautiously done subject to the scrutiny of the Board of Zoning Appeals and Common Council, as well of course, as any City type 1 action subject to environmental review. Mayor Gutenberger asked Alderperson Cummings to clarify for the record the meaning of this zoning change. Alderperson Cummings stated that the way the zoning chart works is accumulative, this is not a permitted use in any of the preceding sections of the zoning chart. This is the first time in which this use is mentioned, and is mentioned as something which is not permitted as a matter of right but only under compliance with the special performance standards. It is not a use that will be permitted in the other preceding zones. Alderperson Booth stated for the record: 1) If every municipality tried to do this we wouldn't be able to handle the garbage anywhere and he does not think that's wise. He thinks this is a mistake. 2) Whatever the stated intention, this is being done with the intention of barring the County from placing a baling station in the City, and he seriously doubts that this will have any legal effect on the County's operations. He finds it hard to believe that a Court in this State would not allow the County to locate a garbage facility that serves the larger public interest. 3) If those of you who are going to vote for this, and he assumes that it's going to pass, believe that this is going to protect the environment, he would urge that you read what is allowed in industrial uses. Many kinds of uses that involve the storage of use of chemicals continue to be allowed. Simply by making it either very difficult or impossible to locate a baling station isn't going to protect the environment the way some of you have claimed. 4) A number of Council members have made the argument that the City's land is too precious to utilize for a baling station and he thinks that doesn't hold water. There are numerous uses of City land that do not serve the broader public interest, they serve very narrow private interest. He stated he was not arguing for a moment that a baling station might not have some negative impacts, but there are many uses of City land that would not serve broader public interest to nearly a degree that a baling station would. Alderperson Booth further stated that every municipality outside the City will respond to a proposal to place a baling station there with a comment "we don't generate the garbage, why should a baling station be located in our community, or we generate only a very small percentage of the D It -5- garbage ". The fact of the matter is, Ithaca is far and away the largest generator of solid waste in the County and it is irresponsible for the City to try to turn our back on dealing with garbage issues in this County. Finally, to make Common Council a decision maker on a permit is simply a foolish action and he would vote against it for that reason alone. Mayor Gutenberger asked City Attorney Nash if State law permits Common Council veto power over the Board of Zoning Appeals? Attorney Nash responded that the City can establish this type of procedure. If there were no Board of Zoning Appeals then Common Council would act as the reviewing power for granting variances under the zoning ordinance. If the City wanted they could set up a two tier decision making process. Mayor Gutenberger asked City Attorney Nash if a decision of the BZA can be vetoed by Common Council. City Attorney Nash responded "No, not normally. Common Council pursuant to its ordinances has set up a Board of Zoning Appeals to hear appeals and has set up a procedure for appeal. Normally Common Council does not review BZA decisions." Discussion followed on the veto power of Common Council. Alderperson Cummings responded that in regard to the question of having a dual system in place the Planning and Development Committee was most careful about this. She referred to a memo from Attorney Nash dated September 6, 1989 which concludes as follows: "Should the BZA attach certain conditions for issuing a special permit Council may modify these conditions and grant approval without referring the modifications to the BZA for their review. She stated that there was concern regarding the working relationship between the two and she was satisfied that it is a legal. and working system. Mayor Gutenberger asked if the BZA attaches conditions to their granting of the permit, can Common Council without further action by BZA, alter those conditions? Alderperson Cummings answered "yes ". Mayor Gutenberger stated he believes this is a dangerous precedent. Alderperson Schlather stated that he wished to respond to Alderperson Booth's remarks. He thinks that it is incumbent upon any municipality to protect its citizenry. The question of disposal of waste certainly is a legitimate question. The question of disposing of a region's waste is another question altogether. He does not find this any more offensive than he would a resolution that might establish Ithaca as a nuclear free zone or decide that we are not going to allow the location of a power generating facility in the City. There are certain planning considerations that would preclude the establishment of such an operation that is either so large in size or so offensive in character that it would be contrary to the interests of its citizens. Alderperson Schlather stated that even though, perhaps, this ordinance was catalyzed by a problem on Commercial Avenue he thinks its salutory affect will be known throughout the City in all Industrial Zones to the extent that the City will in effect be taking a, closer role in establishing controls over uses of this property. Alderperson Booth responded that in terms of establishing nuclear free zones, the federal government has preempted that area and does not allow local governments to do it. With regard to establishing power plants the State of New York has absolutely preempted that area and does not allow municipalities to make those decisions. Mayor Gutenberger stated to Common Council once again that he has real concerns with the fact that Common Council has opened the door to veto the action of BZA and that Common Council can take actions without the input of the Board they established to do what the Charter empowers them to do. The Mayor also stated that in his opinion this was bad legislation. A vote on the resolution resulted as follows: Ayes (7) - Schlather, Romanowski, Lytel, Cummings, Nichols, Killeen, Peterson Nays (2) - Booth, Hoffman ADJOURNMENT On a motion the meeting adjourned at 8:30 a.m. llCallista F. Paolangel3 City Clerk Carried i G h Gutenberger ayor FM