Friday, October 18, 2019

The ZBA Interprets the Code

On Wednesday, the Zoning Board of Appeals made an interpretation of the code as it pertains to Carmine Pierro's proposal to establish a self storage facility, made up of wooden storage sheds, at the corner of Fairview Avenue and Oakwood Boulevard.

In August, the Planning Board, struggling with a proposal for something Hudson's fifty-year-old zoning code never anticipated and nearby residents find objectionable and out of character with the aesthetics of their neighborhood, decided to refer the issue to the Zoning Board of Appeals for an interpretation to determine if a mini storage facility really was a conditional use allowed in the General-Commercial District. On Wednesday, the ZBA interpreted to code to determine that the proposal facility was not a conditional use but a permitted use, requiring only site plan review by the Planning Board. 

During the public hearing, Alderman Eileen Halloran (Fifth Ward), who represents that neighborhood, argued that Article VIII of the zoning code "gives a lot of weight to what the neighborhood thinks" and told the ZBA, "People are concerned that if [a self storage facility] goes there, it's going in other wards as well." Laura Margolis, who serves on the Planning Board, read a statement from Planning Board chair Walter Chatham, in which he stated:
The Planning Board's chief concern is that the proposal may be perfectly legal under the zoning, even though it fails to meet some basic community standards; especially the numerous safety and security issues that have been raised concerning the specific proposal. Beyond the issues generated by this one application, it is important to look forward to what the implication of allowing this use, which was not extant when our code was written, and which comes with absolutely no limiting requirements under the G-C zoning that covers the current applicant's site. As part of the process, the Planning Board has received numerous letters and a petition regarding the proposed use; the vast majority of which are negative.
Chatham's statement went on to offer the Planning Board's assistance in crafting an amendment to the zoning to prohibit or restrict "the proliferation of this essentially down-market anti-urban use in Hudson" and concluded: "Our fear is frankly that the success of one application without proper guidelines will lead to a proliferation of this use on the many currently vacant sites that could be considered appropriate by property owners."

The ZBA's deliberations began with city attorney Andy Howard explaining that code enforcement officer Craig Haigh had opined that the application needed a conditional use permit. He also counseled them that any ambiguity in the code must be resolved in favor of the property owner. He then walked them through relevant sections of the code: Section 325-15, which lists the uses allowed in the General Commercial (G-C) District, where the property in question in located; and Section 325-14, which lists the uses allowed in the Central Commercial (C-C) District. In Section 325-15, "Any use permitted in the Central Commerical C-C District" appears under "Permitted uses," and "Wholesale storage and warehousing" appears under "Conditional uses." In Section 325-14, "Service establishments furnishing services other than a personal nature" is given as one of the "Permitted uses."

Howard then told the ZBA about a legal challenge in Ossining, which involved a similar code provision. The ZBA had rejected an application for a mini storage facility. That decision was challenged. A Supreme Court judge disagreed with the ZBA, but the Appellate Division reversed the trial judge's decision and supported the ZBA. It was determined that a self storage facility was not a "service establishment furnishing services other than a personal nature," because "it did not involve any personal labor." Howard then reiterated, speaking of Hudson's code, "There is nothing in the code that mentions self storage, and there is nothing in the code that defines service establishment.

ZBA member Myron Polenberg protested, "It still feels as if this is an issue for the Common Council to clarify the law or rewrite the law." Howard told him, "That isn't an option. This board is created to interpret the code." He once again made the point that a decision must be made in favor of the property owner when there is a question.

Planning Board member Betsy Gramkow had submitted a letter to the ZBA in which she made the case, citing several examples, that what was being proposed was not "wholesale storage or warehousing," a conditional use in the G-C District. The ZBA, however, focused on "service establishments furnishing services other than a personal nature," a permitted use in the C-C District and hence also in the G-C District. ZBA member Steve Dunn said he did not want to vote on an interpretation until they had determined what service establishment meant. Lisa Kenneally, who chairs the ZBA, responded, "It's been explained to us. We can rehash it and rehash it. Is another month going to change anything?"

Pierro defended his proposal saying, "I thought this would be the least invasive thing for the neighborhood." He went on to complain, "Stewart's wants to come into town, and they tore down two buildings." He expressed the opinion that the zoning amendment passed to enable the Stewart's expansion was spot zoning.

While this conversation was going on, Howard was Googling service establishment and discovered the City of Middletown, New York, had recently amended its zoning to offer some guidance about the nature of service establishment. In the Middletown code, service establishments include "car wash" but specifically exclude "self storage." On this evidence, the ZBA concluded that a self storage facility was a service establishment, because if it wasn't, Middletown would not have seen fit to exclude it from their definition of service establishment.

With that, Kenneally called for a motion to find that the proposed self storage facility "falls under permitted use 325-14(7)." That motion was made by Mary Ellen Pierro, the applicant's sister-in-law, and seconded by the newest ZBA member Abbie Lazare. Pierro, Lazare, Polenberg, and Kenneally voted in favor of the interpretation; Dunn abstained, as did Theresa Joyner, explaining that she didn't feel she had enough information to make a decision.

So it appears the mini storage proposal will go back to the Planning Board, not for a conditional use permit but for a simple site plan review.

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