A dispute between the town of Sennett and owners hoping to open their restaurant as a non-conforming use is coming to a head.

Two petitions against the Sennett Zoning Board of Appeals in the former Pioneer Restaurant case will be heard by Cayuga County Court Judge Thomas Leone at 10:30 a.m. June 5 in county court.

Owners Rybach & Rig Property, LLC have also filed a response to these petitions, which affirms or denies their assertions, partner Greg Rigby said.

The court will decide if the restaurant can operate in a residential district despite the town's claim that it did not really open for business within a year and if planned outdoor seating and a drive-thru are out of line with the building's original historical restaurant use.

Dave Sikora, Sennett town supervisor, did not comment on further legal action by the town if the court rules against it.

“There's always recourse in any situation,” he said. “Once there's a decision, the town board will review it carefully. We're going to wait until we have something in our hands, and we're not going to speculate on anything.”

Town attorney Tom Blair said the case could always be appealed if the parties choose. But Leone doesn't have to make a bench ruling; he could wait for 30 days or longer to decide.

Parties might then appeal in the 4th Department of the 7th Judicial District in Rochester. A final appeal could then be made to the State Court of Appeals in Albany.

Sennett's ZBA had decided March 25 to extend Pioneer's non-conforming use and exterior additions in three of Rybach & Rig's six appeals. The town board and homeowners near the restaurant opposed the ZBA's decision.

The town wants Rybach & Rig to apply for a use variance to operate a non-conforming use at the property and apply to Sennett's planning board for a site plan review for an environmental review of the project.

It wants the court to enforce stay provisions to prevent further construction at the property and seeks attorneys' fees and costs.

The town said the ZBA refused to enforce Art. IX Sect. 904 of its zoning law: “Whenever a non-conforming use has been discontinued for one full year, it can't be re-established, and further use has to conform to local law.”

The ZBA ruled using the property to sell food or beverages at a hot dog stand extended non-conforming use rights, as zoning laws didn't define degree of use.

The town said the Health Department's temporary food permit for a one-day hot dog stand was illegal; zoning law forbids food sales to the public in an R-1 zone and the ZBA's decisions were contradictory.

The town opposed the ZBA's extension of non-conforming use to outdoor seating, walk up windows and a drive-thru, as zoning law does not allow new use additions to a non-conforming use.

The ZBA said the law failed to define “restaurant,” but the town said the ZBA had to apply correct legal standards of historical use; the definition was irrelevant to expanding non-conforming use; and the ZBA ignored impacts: greater noise, more traffic, and faster turnover than in the past sit-down dine-in restaurant.

The town challenged the ZBA's refusal to enforce zoning law as applied to site plan review for the restaurant's renovation. It said Rybach & Rig strung the town along for eight months, claimed it would submit a site plan review application, then relied on an alleged legal loophole to avoid review.

The town said the ZBA didn't apply local law No. 6 (2007), passed before any ZBA hearing, and the ZBA knew it had to be applied at the appeal hearing.

The zoning law update, filed with the Secretary of State's office December 13, modified site plan review standards, added restaurant and drive-thru restaurant definitions, and revised non-conforming use provisions. Courts have held that when a zoning law has been amended after submitting an application but before a reviewing agency renders a decision, courts must apply the law as amended. A board or court needs to apply the law in effect at the time a matter is heard. A public hearing repealing local law No. 6 was held on March 6, and the new law, Local Law No. 2, 2008, passed. The ZBA announced its decision on March 25, after having begun its hearings on January 24.

The town said the ZBA improperly relied on the vested rights doctrine for Rybach & Rig, which allows a property owner with a valid building permit spending big construction dollars to finish his project despite subsequent zoning changes. R&R exceeded the permit's scope by including elements subject to site plan review. The town said amounts spent to renovate the restaurant and construction don't affect zoning law discontinuance provisions.

The neighbors' petition, echoing the town's assertions, lists two causes of action:1) Walk up windows, outdoor seating and a drive-thru didn't exist at the Pioneer Restaurant. Their addition is an illegal expansion of the non-conforming use of a sit-down, eat-in restaurant. 2) The ZBA's ruling was improper as it relates to the discontinuance of the non-conforming restaurant use,

Staff writer Kathleen Barran can be reached at 253-5311 ext. 238 or kathleen.barran@lee.net