TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS
WEDNESDAY, 1/28/2015, 7:30 PM
ZONING MEMBERS PRESENT: JAMES LEVESQUE GREG MICHALAK
DICK BARTON HELEN EMICK
DAN THOMAS ROGER VAILLANCOURT
Dave Stapleton (Attorney)
Others Present: Noah Schmucker Adam Schmucker John Rauh
Mr. Stapleton swore in all who expressed intent to speak regarding the applications.
- Noah Schmucker requesting a Use Variance to operate a discount grocery store at property owned by Jim Wroda and known as Wroda’s Auction, located in the R-2 District, at 2118 Magnolia Ave., Ashville, specifically Section 384.11-1-21 (old # 31-9-2).
Mr. Schmucker said he would like to put in a discount grocery store which his son will run, at the location of Wroda’s Auction. He indicated that the purchase of the building is contingent on being allowed to do so. He said they had spent a year trying to find a good location and he feels the Ashville property is an ideal location, rural but close to main roads. Mr. Levesque asked the applicant if he was aware that the location is an R2 District. Mr. Schmucker asked if that means it is mainly residential. Mr. Levesque said yes. Mrs. Emick asked if the entire building would be used for the store. Mr. Schmucker said yes and explained that they have about two semi load deliveries of salvage groceries per month. He said the trucks are unloaded and gone within 2 hours. He said the hours of operation would be 8 am to 5 pm Monday through Friday; 8 am to 3 pm on Saturdays; and closed on Sundays.
Mr. Levesque read into the record Zoning Ordinance Section 904 Use and Area Variances; Sec. D. Use Variances; Item 3.a. Mr. Levesque asked the applicant if he had investigated or could provide some financial evidence that this land cannot be used for anything else besides the grocery store. Mr. Schmucker asked why a building such as this was ever built in a residential area in the first place. Mr. Vaillancourt said originally the Fire Department had built it as a Training Center. Mr. Schmucker asked what else it could be used for other than a business. He said his hope is that the store will serve the entire community and they looks forward to becoming a part of the community. Mr. Vaillancourt asked about employees. Mr. Schmucker said to start, about 5 and depending on the amount of business that number could expand. He indicated that he would take employment applications from anyone who was qualified (English , Amish, etc.). Items 3.b.; c.; d. were also discussed and it was determined that the purchase of the building/land would be after the zoning of that district occurred. There was also discussion of the applicant providing proof of hardship that the land cannot be used for anything other than what he wishes to use it for through the use of competent financial evidence (i.e. licensed appraisers) valuing properties based on their allowed uses according to zoning. Mr. Schmucker asked if that meant could it be used for anything else other than a grocery store. Mr. Levesque said yes. Mr. Stapleton referred to the Zoning Ordinance Chart of uses permitted by right; by special use; allowed with a permit; and not allowed for the R2 District. After lengthy discussion the board determined that the issue is the zoning of the land, not the building on it. Mr. Levesque asked if anyone wished to speak regarding the application. Mrs. Emick asked if any of the neighbors knew what the applicant is proposing. Mrs. Thomas said that notices had been sent to those in the neighborhood. Mr. Levesque said the applicant has the option of going to the Town Board and ask that the area be re-zoned. He said at this point what the applicant wants to do is not allowed. Mr. Schmucker questioned why the board would be interested in changing zoning just for him. Mrs. Ortman said if the board thinks it is in the towns’ best interest to change zoning for a number of reasons, they may entertain that request. The ZBA members concurred that the proposal was admirable but unfortunately their hands are bound by the Zoning Law. Mr. Levesque assured Mr. Schmucker that the Town Board would be fair and listen to his proposal. Mr. Schmucker said he had asked Mr. Wroda if the property was commercial. He said Mr. Wroda had indicated that the property was Residential/Commercial. He said the listing for it had indicated it was Commercial. There was discussion that the next Town Board meeting would be on 2/9/15. Mrs. Thomas indicated that it would be a good idea for Mr. Schmucker to contact the Supervisor about getting on the agenda. Mr. Stapleton told Mr. Schmucker to write a letter to the town board and request that they make “grocery store” a permitted use in the R2 District. He said the town board (in order to avoid spot zoning) would have to forward it to the Planning Board for their review and recommendation at which time they would look not only at the property in question but the surrounding area so they could justify on the record what the conditions are currently; why they would want to make a change to the particular zoning; and how it would benefit the town. He said that is the legal basis on which they can change zoning without a court challenge. There was discussion of making this a permitted use in the R2 District and also the possibility of the creation of an additional district. Mr. Thomas said Mr. Schmucker’s first step should be contact with Supervisor Carlson.
Mr. Levesque motioned to accept the request for a Use Variance by Noah Schmucker to operate a discount grocery store at property owned by Jim Wroda and known as Wroda’s Auction, located in the R-2 District, at 2118 Magnolia Ave., Ashville, specifically Section 384.11-1-21 (old # 31-9-2). Mr. Barton seconded. A roll call vote was taken: Levesque (NO);
Thomas (YES); Mrs. Emick (YES); Mrs. Ortman (YES); Mr. Barton (NO); Mr. Michalak (NO); Mr. Vaillancourt (NO).
Mrs. Ortman said she needed to change her vote as she hadn’t understood how the motion was worded. Mr. Levesque explained that all votes are taken on a positive motion. Mrs. Emick said she needed to change her vote as well. Mrs. Thomas requested that since there is such confusion on the wording of the motion, it be thrown out and a revote taken. Mr. Levesque asked if that was legal. Mr. Stapleton asked if the board as a whole wished to revisit the motion and all responded yes.
Mr. Levesque motioned to accept the request for a Use Variance by Noah Schmucker to operate a discount grocery store at property owned by Jim Wroda and known as Wroda’s Auction, located in the R-2 District, at 2118 Magnolia Ave., Ashville, specifically Section 384.11-1-21 (old # 31-9-2). Mr. Vaillancourt seconded. (7) NO: Levesque, Thomas, Emick, Ortman, Barton, Michalak, Vaillancourt. The motion was unanimously denied.
- Robert Rauh requesting an Area Variance to construct a garage addition which will be 21’ tall (allowed is 18’) in the R-2 District, at 4821 Cedar St., Ashville, specifically Section 384.15-1-9.
John Rauh appeared to represent the applicant who is ill. He apologized on behalf of the family for not going through the proper procedure for the project which has already been partially constructed (posts and roof). He said the applicant had purchased a motor home and wanted to build a shelter for it. He said they intend to comply with NYS Code and hopes the board will allow this variance so the project can be completed. Mr. Rauh oriented the board on the constructions located on the property. He explained that in order to get the 14’ door required to put the motor home inside the height must be 21’. Mr. Levesque said Mr. Lawson left a note indicating that although there is no site plan, he believes the new construction is within set back limits. Mrs. Emick asked about the percentage of lot coverage. Mrs. Thomas advised that the property is 1.2 acres. Mr. Levesque asked if anyone wished to speak regarding the application.
Mr. Levesque read Zoning Code Section 904 Use and Area Variances; Sec. C. Area Variances; Item 2. a) no b) no c) no d) no e) yes. Mr. Levesque said the board recognizes that the R1 and R2 districts have the same height and setback standards. The board also recognizes that the 25% lot coverage is satisfactory based on the GIS map. The board requested that Mr. Rauh supply a site plan to the Zoning C.E.O. if available or he perceives any issues with the lot coverage.
Mr. Levesque motioned to grant an Area Variance to Robert Rauh to construct a garage addition which will be 21’ tall (allowed is 18’) in the R-2 District, at 4821 Cedar St., Ashville, specifically Section 384.15-1-9 as outlined in his application and these minutes, with the following condition:
- If a survey exists, a copy be provided to Mr. Lawson for confirmation of 25% lot coverage.
Mr. Barton seconded. The motion was carried unanimously.
The hearing was adjourned at 9:02 PM.
Nancy M. Thomas