Now the ZBA has been asked to weigh in on something else: the proposal to create a self-storage facility, created with wooden storage units, on the vacant lot at 121 Fairview Avenue.
The problem was articulated by Planning Board chair Walter Chatham at the board's August meeting: "We find ourselves with a zoning code that didn't anticipate something." Back in 1968, when Hudson's zoning code was adopted, self storage facilities did not exist. The question now is: Are they prohibited because they are not mentioned as permitted uses in the code, or are they allowed because they are not expressly prohibited in the code?
As city attorney and hence counsel both to the code enforcement officer and the ZBA (as well as the Planning Board), Howard seems in an awkward position. He had previously concurred with Haigh that what was being proposed was allowed by the code. Now, he has to counsel the ZBA in rendering an opinion on the same issue. At Wednesday night's meeting, Howard directed the ZBA to the relevant sections of the code--325.14 and 325.15--and told them their task was to decide if the proposed use was conditional or prohibited: "You need to look at the language, you need to look at the code, and render a determination." Howard pointed out that one of the problems with the current zoning code is that terms and phrases used in the code, such as personal service stores (325-14.A 2) and service establishments furnishing services other than a personal nature (325.14.A. 7), are not defined. He also told the ZBA that if "[self storage facility] is found to be prohibited in this zone [G-C--General Commercial], it would be prohibited throughout the city."
ZBA member Myron Polenberg protested that the ZBA does not make law. Howard told him, "You wouldn't be writing law; you'd be interpreting it." He went on to say, "This is one of the powers ZBAs are given"--those powers being granting area variances, granting use variances, and interpreting the code. ZBA member Theresa Joyner asked, "Do we have any storage units in Hudson?" Haigh clarified, "The commercial district allows storage. It's self storage units that are in question."
ZBA member Steve Dunn opined, "We have a high degree of influence, but we will also have a high degree of deference," before moving that the board set a public hearing on the issue. That public hearing will take place on Wednesday, October 16, at 6:00 p.m. at City Hall.
COPYRIGHT 2019 CAROLE OSTERINK
Regarding the South Bay, the ZBA's actual June 6, 2018 Resolution stated that the Zoning Map "should be reviewed by the legally authorized bodies to be reviewed and possibly changed."
ReplyDeleteMore important, though, was the ZBA's simultaneous determination that "the current zoning map authorized under the City Code depicts the actual boundaries of all the district zones and that the C-R and R-C Zones are so included."
Based on the above, the ZBA's task is simple enough, at least to begin with: project the "actual boundaries" of the current Zoning Map onto the Colarusso site plan.
Here's what you get:
https://1.bp.blogspot.com/-DhmGTWm0L5w/XRpKILHoE6I/AAAAAAABR9E/IDapTgsECeEaqGq35YK44NiCC5gfLXdxwCLcBGAs/s1600/City%2BZoning%2BMap%2Bon%2BSite%2BPlan%2Bon%2BSatellite%2B%25281%2529.jpg
This shouldn’t be hard at all.
ReplyDeleteThe Hudson zoning code certainly does *not* allow projects by default when they are not specifically prohibited (as strangely suggested above).
It’s just the reverse: If a use is not specifically permitted, the default assumption is that it is prohibited.
For example, the City of Hudson zoning code does not specifically say that Carole can’t build a three-story ferris wheel in her backyard.
That does not mean that Ferris wheels are allowed by default, since they aren’t mentioned. Just the opposite.
The burden falls on the applicant to prove otherwise -- that the project somehow should be viewed as allowable under some existing permissible use category, or should be allowed via variance or other special use permit.
There are almost no municipalities in our area which have zoning codes which assume that uses not explicitly prohibited are therefore allowed.
Hudson’s certainly doesn't take that approach, and it is surprising to see that idea even contemplated.
Almost all New York municipalities with zoning now have “permissive” zoning codes, which set forth specific permitted uses, with all others being prohibited unless they can qualify for some kind of conditional use or variance.
The reason is simple: A town or city can’t imagine all the cockamamie or disruptive things that might be proposed. It would be impossible to list every idea that someone might cook up.
So instead, the default assumption is that it is not allowed if it is not specifically permitted -- with narrow provisions and standards in the code to assess ideas which aren’t listed.
So to go back to the original (absurd) example, if someone wants to build a Ferris wheel in their back yard, they could try to claim that it is a customary accessory, recreational use for local residences. Families like to play in their backyards; a Ferris wheel is kind of like a giant jungle gym—right?
And then the Planning Board could laugh the applicant out of the room.
P.S. For example, the zoning code states:
ReplyDelete“No building shall be erected, moved, altered, rebuilt or enlarged, nor shall any land or building be used, designed or arranged to be used, for any purpose or in any manner except in conformity with all regulations, requirements and/or restrictions specified in this chapter for the district in which such building or land is located.”
more zoning scuttlebutt: a contractor today told me that a fellow contractor has been asked to do the job of expanding Scali's pizza on Green Street, involving a tear down of the charming (if unkempt) bungalow behind the pizzeria.
ReplyDeleteIt was inevitable. This was enabled by the zoning amendment the Council passed to accommodate Stewart's.
Deleteand it is in eyeshot of a beautiful house on the National Historic Register, on the only unspoiled block of Green Street (all other businesses on the block are in houses and are as unobtrusive as you can get).
ReplyDeleteOne prescribed use of the shore alongside a federal waterway...
ReplyDeleteThe Aquatic Resources Trust Fund or Wallop-Breaux, named after former Senators Malcolm Wallop (R-WY) and John Breaux (D-LA), created a user-pay fund in 1984 to enhance the boating and fishing experience. Congress allocates funds generated directly by boaters
through taxes on motorboat fuel and fishing tackle, along with other fees, to provide boaters with new and improved docks and piers, wetlands conservation and boating safety programs, among many other boating and fishing initiatives. The Wallop-Breaux Aquatic Resources Trust Fund.
This is very useful, thanks.
Delete"taxes on motorboat fuel and fishing tackle"...
ReplyDeleteTake from county motor boaters and give to to inner city dock cutters.
It's Robin Hood in reverse.