Of the zoning board of appeals.

We have two items on our agenda tonight.

First one is going to be a continuation of a public hearing and a regular meeting.

This is regarding the application at 711 North Division Street.

Continue public hearing, regular meeting pursuant to general city law, Section 81-A5B and Section 575-55B of the zoning ordinance.

It's regarding an appeal of the code enforcement officers' determination pursuant to 57535 that the uses of the property are not permitted on the lots in the zoning district where the property is located, and an interpretation of section 5754 regarding nonconforming buildings and uses to determine whether the use of the property for inside and outside storage constitutes a legal pre-existing non-conforming use.

Again, excuse me, the uh property is located at 711 North Division Street in the C4 um neighborhood commercial district.

So where we left off, uh we were asked by the applicants um attorney who will be stepping up uh to uh adjourn.

Um and we have adjourned and now we're back at it.

So uh we'll lead off with uh continuing discussion from the applicant's attorneys, and then we'll uh we'll recap um the city's position and their recommendations to us on this just getting just getting the the uh the technical tech ready.

Got the tech ready, no problem.

Yes, okay, thank you.

That's good.

I could yeah, that was a very okay.

Uh Mr.

Chairman, members of the board, uh good evening.

My name is David Cooper, partner with the law firm is Aaron Simets.

Good to see you again.

Sorry that I missed last month's meeting.

Um we did ask to adjourn because one uh there wasn't a full board.

I know there's a full board tonight, so we're happy to see everybody and and uh um hope to to um just share my screen.

There we go.

To uh conclude this.

Um my understanding of where we left off was uh there would there seem to be an agreement that both users on or both tenants on the site now do qu qualify as a contractors are in a pre-existing non-conforming legal pre-existing non-conforming use.

Uh the question is well, where does the uh uh residential use end and where does the uh contractors are beginning or vice versa, depending on how you're looking at it.

Um we did submit a uh survey, I know that there was a request.

I think the request is okay.

Well, you know, how do we how do we draw this line?

Uh we did also submit a proposed line, which I will get to.

I know there's a public hearing, so maybe at the end of the public hearing I'll get to it.

Um the one thing I would say uh in into setting up the the question presented, the remaining question presented as to where to draw the line.

Uh this is what I would call a case to case of first impression, and certainly for this ZBA, but probably for for if not any ZBA, most CBAs in in in New York, New York State.

Um typically a non-conforming use uh ends at a property boundary or a zoning boundary, but here you've got the unique situation of two uses, primary principal uses on the lot that have been there for for many, many, many, many years.

Um and so the question of what is residential and what is what is what is uh a contractor's yard is a bit amorphous.

And so uh obviously we're it's it's a it's a uh uh difficult question to answer.

We're here and and and and want to uh get to the right answer for everybody, but we recognize it's a challenge.

Um stepping back from from the the legal side of it, you know, as a quasi-judicial board, obviously there's there's equity uh that the judicial uh judiciary has in determining what's fair, what what how can we how can we really come to a a uh uh resolution that doesn't perhaps tip the scales one way or the or the other makes it makes it fair.

And you know, I think we started off this application uh I guess in January, and I think it's kind of gone all the way through with the same hopeful agreement with us and and the board that look we don't want to um kick a a business off of a property and and make them uh you know uh uh as we say evacuate, get evicted um because uh of this this issue.

Um so we hope that that we can reach a a uh uh an agreement tonight such that it still allows both users to remain on on on site or so both tenants to remain on site so these businesses can remain in the city um but still address the issue of of of the um where did uh what is what is uh an improper uh expansion.

So um we have thoughts um, but I know it's a public hearing, so uh rather than hog the the uh microphone, I'm happy to to wait until if you get get public public comment to the extent there is any, and then and then come back to discuss.

Okay.

Sounds like a plan.

Thank you.

Um why don't we get a little recap of where we stand or where we were from a city's perspective, uh if we need to, or should we?

I think just to again for those of kind of what we discussed.

Do you want Christian?

Do you want to?

Yeah, because basically, uh, you know, Rachel and Sheridan were not here uh last time.

So I know they've been filling in, they've been you know, catching up with things, but it would be good to hear, you know, yeah, some perspective from the city.

Yeah, so uh I'll just start from the beginning.

So originally uh this property was issued uh violation by the building department, uh that alleged these property is not being used in conformance with the city's use regulations, um, and then the applicant submitted an appeal of that determination, comes came to this board, uh, and then at the last two meetings, January and February, uh the applicant presented, uh had some testimony from some of the tenants, submitted uh a letter, um, and essentially at last uh month's meeting, a majority of the board came to an agreement that the contractor's yard, which is not defined in the city code, um can encompass a landscaping contractor as well as a uh towing contractor.

And then really the question became as uh the applicant's counsel stated, you know, a question of where would this nonconforming uh pre-existing use start or end because of the unique circumstances of there being a single family residential home uh in support of the building department's determination, the building department submitted some aerial photographs as well as the applicant uh kind of showing uh the property from a bird's eye view throughout the years and um essentially whether or not there has been an expansion.

And the peak skill code provides um does provide an allowing an expansion of a building, but there's no provision in the in the peak school code that discusses an expansion of a pre-existing use of land.

And so the code is pretty uh straightforward, it does not allow pre uh expansion of a pre-existing legal non-conforming use of land.

Uh there was also discussions about whether or not uh the uh towing contractor was operating a junkyard or some sort of operation like that, because the code also prohibits uh junkyards or unlicensed or unregistered vehicles.

The applicant's uh tenant who is the towing contractor submitted uh a letter as well as applicants counsel that there is uh no junk to vehicles and that the towing aspect is really just you know, we're moving vehicles and then they're there, and then they'll be picked up by the um by the owner or some representative of them.

And so that's really where we are today is a discussion.

Um obviously uh uh really on both issues.

There was no formal determination regarding whether or not both are uh pre-existing that they would qualify as a contractor's use, but that was the majority consensus at last month's meeting.

Um, but there was no formal determination, and then also the issue and question of the an expansion of that use.