North East property in the middle of zoning debate

NORTH EAST — The Zoning Board of Appeals (ZBA) held a special meeting on Thursday, June 23, at which time there was a public hearing for a use variance application. Russell Johnson’s application for his Route 22 property was the subject of the hearing, which had been continued from the previous ZBA meeting.

Johnson’s 1-acre parcel is in the  Land Conservation (LC) Zoning District in the town of North East and is locally known as the Old Mill. The request is to allow for the following uses: indoor retail or service business, offices, business and professional, and animal hospital and veterinary clinic — essentially a general office with no distinct proposal. Since originally submitted, the application has changed slightly and now no longer requests approval for use as an animal hospital and veterinary clinic.

According to ZBA Chairwoman Julie Schroeder, what could be a simple request, in this case, is anything but. That’s because the property, which housed Johnson & Johnson Antiques since 2001, has been abandoned for a number of years. Once officially abandoned, a wrench is thrown into the works.

The problem with abandoned properties

“In our zoning laws there’s a clause that if you abandon [a building], it becomes a nonconforming use, which is what the antique store was, and there’s a residence, and they’ve been discontinued for more than a year, and that’s considered abandoned,” she explained. “It hasn’t been operating for more than one year; it’s been several years.”

Johnson’s attorney, Ed Downey, of Downey, Haab & Murphy, PLLC, addressed that issue in a memorandum he submitted to the ZBA.

“The board has taken the position that the apartment use and the retail use — both nonconforming — have been discontinued,” Downey stated, before explaining why his client disagrees on both a factual and legal level. “The applicant feels that his continued attempt to sell this property for commercial purposes with the benefit of an owner-occupied apartment indicates that the use has not been abandoned.”

Johnson, who estimated he invested $168,143 into the Old Mill, which he said adds up to $282,000 when inflation is accounted for, has listed the property since 2000. He has only had one offer, from a veterinarian, for $250,000. She declined to sign a contract, however, “after meeting with town officials [and concluding] she was not likely to get the necessary approvals,” according to a written statement Johnson submitted to the ZBA.

Zoning limitations

What is making things even more difficult is that the property in question is located within the LC Zone, a zone where there are “not too many uses allowed,” according to Schroeder.

“We don’t determine it,” she said. “The burden of proof is on the applicant in order to get a use variance, and he has to meet four to five criteria, and that’s where the problem arises.”

Those criteria deal more with legalities than zoning issues, according to the zoning chair.

“The big problem with that is the ‘self-created hardship,’” Schroeder said. “In New York state, enabling legislation as established by case law, which we’re bound by, self-created hardships automatically defeat use variances. If the owner of a property abandons the use, or buys a piece of property with zoning in effect, he can’t then come claim hardship — that’s where the real problem is.”

But Downey disagreed.

“We know from court decisions … that someone using a piece of property illegally, buying it and then requesting a use variance to save him from his poor investment decision, is not denied that use variance on the grounds of having a self-created hardship,” the attorney stated. “We also know that someone has not created a hardship for himself which compels the denial of a use-variance request when he buys a piece of property subject to a restriction and then asks to have the ‘restriction problem solved’  by seeking a use variance from it.”

Setting precedent

The ZBA received two memorandums of law, one from Attorney to the Town Warren Replansky and one from Downey, which Schroeder said she disagrees with. She said, therefore, the ZBA is looking to have a special meeting, perhaps, so Replansky can explain to the board the gravity of the ZBA overthrowing the precedent.

“It’s pretty serious business for the zoning board,” Schroeder said. “It’s not that we don’t sympathize. We understand he’s really between a rock and a hard spot — number one because he’s in the LC Zone and number two because of the configuration of his property.”

Downey said as far as setting precedent, the Old Mill building is a very unique and historic structure; it’s essentially one-of-a-kind.

“It’s one of the oldest in the community and it’s been in industrial, commercial use since it was built [centuries ago],” he said. “It’s also very uniquely located, on a primary highway in an old, historic hamlet, immediately adjacent to the Rail Trail with a stream alongside it.

“The community has always looked at that building as commercial,” Downey added. “It’s not similar to anything and there’s even a specific reference in the town’s comprehensive plan to reuse buildings, with a photo of this building to illustrate the point.”

Rezoning concerns

Upstairs there is space that was once used as an apartment. Again, because it’s in the LC Zone and it hasn’t been utilized as a residential space for more than a year, it also is considered abandoned. Therefore, while a residential space is allowed in the LC Zone, to re-establish that use a special use permit would be required from the ZBA.

Downey responded to the zoning board’s comments fearing their approval could be interpreted as rezoning, or worse, spot zoning.

“Rezoning a specific parcel for particular uses would be spot zoning and very possibly illegal,” he wrote. “Use variances exist to deal with those situations in which the zoning district affords no reasonable use for that particular parcel, not because other parcels in that same district or neighborhood are not well served by the zoning law but because this particular one isn’t. It is in effect a ‘rezoning’ of a parcel where a rezoning of a neighborhood is neither necessary nor desirable. That’s why ZBA’s have this ‘safety-valve’ authority.”

Flooded with fears

Flooding issues are also a concern for residential properties in the LC Zone, Schroeder said, who also warned one “should be aware of these restrictions and laws” before buying property in that zone.

“They’re difficult decisions to make though, especially when you’ve lived here and consider the history of the building and people involved,” Schroeder said. “We don’t make any friends, let’s put it that way.”

Taking a position

Downey noted that at the beginning of the process the applicant had to notify property owners within 300 feet of his property of his request to the ZBA. That was done and there has been no backlash from the public since.

“There’s been no opposition expressed by anyone,” the attorney said. “We’re not introducing something into the neighborhood different to what’s already there. I think people expect this building to be used for commercial uses.”

Despite the harsh criteria set up by the zoning  board, Schroeder said she’s under the impression most of the ZBA members are leaning toward granting Johnson the use variance.

“I’m the only one that says, ‘No way,’ really,” she said. “I cautioned them about what they’re doing. They asked for Warren [Replansky] to come [to our next meeting], so we’ll let him present that side of the argument, and then they’ll have to make up their minds.”