The discussion began with Planning Board member Laura Margolis saying she didn't want to make a recommendation without understanding the issue better. Mitch Khosrova, counsel to the Planning Board, pointed out that the Planning Board had already opined on this issue when they were asked to make a recommendation on the Green Street Overlay District proposed by Stewart's. Khosrova reminded the members of the board that their opinion had been that "tackling zoning issues piecemeal is not the way to go," and they wanted the City to revise the City's comprehensive plan and undertake comprehensive zoning revision.
During the course of the discussion, board member Betsy Gramkow commented, "I don't like nonconforming uses, and this is making it even larger." Walter Chatham, chair of the Planning Board, expressed the opinion that what was proposed "is not spot zoning, but it approaches spot zoning." Chatham also mused, "If the city had some design leverage," and Gramkow spoke of "standards [presumably design standards] the community can use."
Repeated reference was made to a letter the Planning Board had received the previous day from Ken Dow, who served as city attorney in Mayor Tiffany Martin's administration. Gossips was able to get a copy of the six-page letter last night. Earlier today, it was made available on the city website. Dow introduces his critique with this statement: "To begin, I think the proposed law has several serious problems. Some are mainly technical, and some are substantive that go to the very essence of the purpose of zoning."
Dow first discourses on "the ambiguities and uncertain effects of the law." He then explains what he considers the substantive problems: (1) re-designating the currently existing non-conforming uses as conditional uses; (2) allowing the expansion of non-conforming uses and continuing to designate them as non-conforming; (3) discrimination and inequitable granting of rights to use certain parcels. In his discussion of discrimination and inquity, Dow cites an objection that Michael LeSawyer made (and Gossips reported) at the Common Council meeting on Tuesday, July 17. The following is quoted from Dow's letter:
A post on Gossips of Rivertown on July 17, 2018, contained the following passage: “Michael LeSawyer, whose house is situated midway between Stewart's and Scali's, the ‘two historic nonconforming uses’ that would benefit from the zoning amendment, complained about the inequity of the amendment: ‘Stewart's can do anything they want, Scali's can do anything they want, but I can't.’” I think Mr. LeSawyer is spot on. If a parcel next to Scali’s can be used for restaurant purposes, it should be permissible for anyone to use it for such purpose, not just Scali’s. If a parcel next to Stewart’s can be used for convenience store purposes, it should be permissible for anyone to use it for such purpose, not just [Stewart's]. Otherwise, the law is not zoning the land; it is giving personal grants of rights to use land.Dow's conclusion is stated in these three paragraphs. (The boldface italic in the third paragraph is his).
While the apparent discriminatory effect of this proposed law and its selective granting of rights based upon one’s use and ownership of a different parcel is problematic, the concerns in that regard pale in comparison to those arising from the central purpose and thrust of this proposed law. To return to the most important point, at its core and in light of the fundamental principles of zoning, the proposal to allow and even “encourage” the continuation and expansion of non-conforming uses—especially onto additional parcels—is extraordinarily ill-conceived.
It is my view that this proposed law needs important revisions if it is to be enacted. In addition to making decisions on, and clarifying, the ambiguities discussed above, the “Legislative Findings” should be re-written to remove any statement of purpose to encourage, continue, or expand existing non-conforming uses. That such a statement is currently in the law is mind-boggling. If, in fact, the effect of the law would be to convert current non-conforming uses to conditional uses, then it is not even correct to say that the law is promoting the continuation or expansion of non-conforming uses; it is instead finding that circumstances have made the subject uses appropriate for their locations and re-designating them as conditional uses.
The problems of this proposed law can perhaps be mitigated to some degree if the Comprehensive Plan and other factual grounds support re-classifying the specific nonconforming uses at issue as conditional uses and the text of the law is revised to clearly do so. But to continue to identify the uses at issue here as “non-conforming uses” and to then promote their expansion—especially onto a new and separate parcel—is, in my opinion, an extremely misguided course of action that is both in direct conflict with the fundamental purposes of zoning and may also open the door to unintended adverse consequences for the City. To enact a law that would do so, as the current text appears to do, would be—to put it mildly—a seriously unwise step by the City.In the end, the members of the Planning Board decided they needed more time to digest the content of Dow's letter, and because, as Khosrova observed, "the document they got [i.e., Proposed Local Law No. 5] doesn't explain the thinking behind it," they decided to invite John Rosenthal, who chairs the Common Council Legal Committee, to come to the next Planning Board meeting to explain the thinking.
At one point, toward the end of the meeting, when the floor was opened to the public, Chatham asked LeSawyer what his position on Stewart's expansion was. LeSawyer replied: "I don't think it's necessary. It's what Stewart's is doing, and we just happen to be Store #88. . . . It's not really a Hudson thing. What's proposed is a template being imposed on the Hudson store." LeSawyer's assessment is borne out by this statement, which is the lede in an article that appeared on June 6 in the Albany Business Journal reporting that Stewart's had just acquired a former restaurant property in the Town of Malta: "Acquisition comes as convenience store chain invests up to $50 million to expand, renovate and add new stores in New York and Vermont." The following, quoted from an article that appeared in the Albany Business Review in February, provides more information about the business plan that is compelling Stewart's expansion here:
Three years ago, the fourth-generation company started investing close to $50 million a year to renovate or completely rebuild stores to expand the fastest-growing segment of its business--food-to-go. Soups, sandwiches, pasta, pizza and a growing number of drinks are the cornerstone of store remodels for a company whose leadership is determined never to stray too far from its dairy image.
The focus on food-to-go prompted Stewart's to start building larger stores as well. The average shop was about 2,500 square feet a few years ago. Today, new stores are closer to 3,700 square feet, depending on the location.I was curious to know if the Stewart's at the corner of Green Street and Fairview Avenue really was Store #88, or if LeSawyer had just pulled the number out of thin air, so I checked. It was the latter. The Stewart's in Hudson is actually Store #209.
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