SENNETT - The Sennett Zoning Board of Appeals tackled on Tuesday night what appeared to be the last three items in Bonca's appeal of code enforcement officer Paul E. Weiman, Jr.'s laundry list of violations. The board said a final decision would be made at its next meeting, Oct. 28.
The issues discussed were whether or not Bonca's had exceeded the 50 percent expansion allowance under the non-conforming use ordinance, whether its proposed hours of operation were also in excess of the legal allowance and whether it could use the second floor of the building for anything other than residential use.
The board dismissed consideration of the use of the second floor because RyBach and Rig LLC. have appealed the decision of Judge Thomas Leone made in Cayuga County Supreme Court to the New York State Court of Appeals in Rochester. Therefore, the ZBA has no jurisdiction.
Scott Chatfield, attorney for RyBach and Rig, questioned whether or not the previous occupancy of the second floor was of conforming use, which he maintained it was not, but he did not want to request a rehearing by the ZBA, so that item was dropped from the agenda when the board agreed not to rehear that appeal.
The board also decided 3-2 that RyBach and Rig failed to take timely action under town law in their appeal of Weiman's determination that they exceeded the 50 percent expansion allowance. The ZBA only has jurisdiction over properly appealed decisions; that means within 30 days of the code enforcement officer's decision and within 60 days under state law.
Weiman's Aug. 23, 2007 letter determined Bonca's expansion was in non-compliance of the 50 percent rule.
“There was a previous determination by Mr. Weiman that the expansion by the applicant would be 194 square feet shy of the allowed amount of area under the 50 percent rule,” the board stated.
Chatfield took issue with the term “shy of” and indicated that his understanding of that expression was that his clients were in compliance because it meant less than the allowed amount, and that's why he didn't appeal.
John Langey, attorney for the Zoning Board of Appeals, questioned his logic, when the statement was one of four in a list of violations. Whether the 50 percent referred to a use variance or an area variance was raised, as the appellants were ready to apply for variances if their appeal was turned down by the board.
“My dilemma was two issues,” Chatfield said. “What area is being counted? You're saying that I'm time barred by a determination made almost a year before your code enforcement officer went out and measured.”
As for the second issue, use, Chatfield said, “In 2007, we were not occupying the building. We could not have been in violation because the 50 percent expansion rule applies to occupancy. Implicit in the area variance is to know what the starting point is so that you know what you're seeking in excess of what the code allows. We don't have a baseline so we don't know what we're applying for. We need to know what to count.”
Greg Rigby, after being sworn in, referred to an informational meeting with the planning board on Aug. 16, 2007, when he subsequently met with Tom Blair and Weiman in Weiman's office. He quoted Weiman as saying,“'Drop the drive-through and we'll give you whatever else you want,' I understood that to mean we were fine,” Rigby said.
“This board has ruled that you've lost the right to appeal,” James Lent, ZBA chairman, said. “This board will look at the data we have and come to our conclusion relative to the 50 percent, then entertain your request for a variance.”
The board decided to review the laws and table that issue until the next meeting.
Hours of operation was the final issue. Chatfield also questioned a need to request a variance, and if so, whether a use or area variance would be appropriate. He introduced James Mazzeo's affidavit that said when he owned the Pioneer restaurant, hours of operation were between 11 a.m. and 2 a.m., Tuesday through Sunday.
Dorothea Mazzeo, who operated the Pioneer prior to her son James, also said her hours of operation were from 11 a.m. to midnight, Tuesday through Sunday.
Bonca's is asking to be open seven days per week from 6 a.m. to midnight. The board will have to mull over these numbers to determine if the 50 percent allowance for non-conforming would be exceeded, and whether to grant a variance.
Staff writer Kathleen Barran can be reached at 253-5311 or kathleen.barran@lee.net
The board dismissed consideration of the use of the second floor because RyBach and Rig LLC. have appealed the decision of Judge Thomas Leone made in Cayuga County Supreme Court to the New York State Court of Appeals in Rochester. Therefore, the ZBA has no jurisdiction.
Scott Chatfield, attorney for RyBach and Rig, questioned whether or not the previous occupancy of the second floor was of conforming use, which he maintained it was not, but he did not want to request a rehearing by the ZBA, so that item was dropped from the agenda when the board agreed not to rehear that appeal.
The board also decided 3-2 that RyBach and Rig failed to take timely action under town law in their appeal of Weiman's determination that they exceeded the 50 percent expansion allowance. The ZBA only has jurisdiction over properly appealed decisions; that means within 30 days of the code enforcement officer's decision and within 60 days under state law.
Weiman's Aug. 23, 2007 letter determined Bonca's expansion was in non-compliance of the 50 percent rule.
“There was a previous determination by Mr. Weiman that the expansion by the applicant would be 194 square feet shy of the allowed amount of area under the 50 percent rule,” the board stated.
Chatfield took issue with the term “shy of” and indicated that his understanding of that expression was that his clients were in compliance because it meant less than the allowed amount, and that's why he didn't appeal.
John Langey, attorney for the Zoning Board of Appeals, questioned his logic, when the statement was one of four in a list of violations. Whether the 50 percent referred to a use variance or an area variance was raised, as the appellants were ready to apply for variances if their appeal was turned down by the board.
“My dilemma was two issues,” Chatfield said. “What area is being counted? You're saying that I'm time barred by a determination made almost a year before your code enforcement officer went out and measured.”
As for the second issue, use, Chatfield said, “In 2007, we were not occupying the building. We could not have been in violation because the 50 percent expansion rule applies to occupancy. Implicit in the area variance is to know what the starting point is so that you know what you're seeking in excess of what the code allows. We don't have a baseline so we don't know what we're applying for. We need to know what to count.”
Greg Rigby, after being sworn in, referred to an informational meeting with the planning board on Aug. 16, 2007, when he subsequently met with Tom Blair and Weiman in Weiman's office. He quoted Weiman as saying,“'Drop the drive-through and we'll give you whatever else you want,' I understood that to mean we were fine,” Rigby said.
“This board has ruled that you've lost the right to appeal,” James Lent, ZBA chairman, said. “This board will look at the data we have and come to our conclusion relative to the 50 percent, then entertain your request for a variance.”
The board decided to review the laws and table that issue until the next meeting.
Hours of operation was the final issue. Chatfield also questioned a need to request a variance, and if so, whether a use or area variance would be appropriate. He introduced James Mazzeo's affidavit that said when he owned the Pioneer restaurant, hours of operation were between 11 a.m. and 2 a.m., Tuesday through Sunday.
Dorothea Mazzeo, who operated the Pioneer prior to her son James, also said her hours of operation were from 11 a.m. to midnight, Tuesday through Sunday.
Bonca's is asking to be open seven days per week from 6 a.m. to midnight. The board will have to mull over these numbers to determine if the 50 percent allowance for non-conforming would be exceeded, and whether to grant a variance.
Staff writer Kathleen Barran can be reached at 253-5311 or kathleen.barran@lee.net
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logic wrote on Sep 27, 2008 3:13 PM:
Sennett should account for every penny(thousand) that they have spent
in this action! "
rbcma85 wrote on Sep 25, 2008 5:31 PM: