TOWN OF GUILDERLAND
ZONING BOARD OF APPEALS
JANUARY 16, 2008
Members Present
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Peter Barber, Chairman Charles Cahill, Alternate Sharon Cupoli Mike Marcantonio Susan Macri Allen Maikels Tom Remmert James Sumner Robert Feller, Counsel
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Chairman Barber opened the meeting and pointed out the emergency exits to the left and rear of the room in the event they were needed.
Chairman Barber thanked Janet Thayer and Chuck Klaer for their years of service to the Zoning Board of Appeals.
Chairman Barber welcomed Tom Remmert as a member of the Zoning Board, Chuck Cahill as an alternate to the Zoning Board and Robert Feller as Counsel to the Zoning Board.
CONTINUED CASES:
MATTER OF MARGRET BAGGETTA – 1814 WESTERN AVENUE
Chairman Barber stated that this was a request for an interpretation regarding the category of use for property located at 1814 Western Avenue. This case was continued to this evening to give the applicant time to submit additional information if they so choose. The Board did receive a letter dated January 11, 2008 from Julianne Girard, the applicants attorney for the applicant which provided some additional materials regarding issues that had been raised at the prior public hearing on January 2, 2008.
Chairman Barber asked if there were any questions or comments from the residents. There were none. Chairman Barber made a motion to close the public hearing. Motion seconded by Sharon Cupoli. Vote 7 – 0.
Counsel Feller stated that this comes down to the definition in the code of a sit-down restaurant. The question here is whether the use that is being proposed fits within this definition. Sit down restaurants are permitted uses within the Local Business district and if this is determined to be a sit down restaurant, it would then move on for approvals from the Planning Board and the Zoning Board. Counsel Feller stated that there does not appear to be any other classification that is a permitted use that this proposal could fall under. If it is not a sit-down restaurant, it would not be a permitted use and require a use variance. Counsel Feller stated that the key provision is the service bar. Counsel Feller stated that the distinction is that bars are permitted but the use of
those bars is intended to be limited. Counsel Feller described a service bar as a bar where the wait staff can access alcoholic beverages to serve patrons who are dining and could also be used by the patrons themselves while they are waiting to be seated. Bars that are only used for drinking are beyond sit down bars. Counsel Feller stated that there are different factors to look at: the bar stool to table ratio, live entertainment and the hours of operation. Counsel Feller stated that if the Zoning Board concludes that the bar would be used on some reasonable frequency beyond a service bar, then the Board would have to conclude that it does not fall within the definition of a sit down restaurant.
Chairman Barber asked Don Cropsey if there were discussions and concerns raised at the public hearing regarding the Cabernet Café as to whether the bar complied as being a service bar only.
Don Cropsey replied that the former owner did represent that the bar area that did exist today was going to be used for patrons to wait for tables only.
Chairman Barber asked if the Cabernet Café service bar had become more or a "bar".
Don Cropsey replied that it might have, he was not positive.
Chairman Barber asked if any complaints had ever been raised regarding anything bar related.
Don Cropsey replied that not as far as he was aware of, the complaints received were parking on the street and noise outside the property limits.
Chairman Barber asked the applicant's attorney if she wanted to respond to any of the comments.
Ms. Girard replied that she had nothing at this time.
Chairman Barber made a motion regarding this interpretation:
"This is a request by Margret Bagetta for an interpretation under Code 280-56 regarding the category of use of an existing sit-down restaurant with modifications including an expanded bar area, outside seasonal seating, and expanded hours of operation to 3AM.
The applicant is a contract vendee for 1814 Western Avenue. The property is zoned Local Business. This Board conducted a public hearing on this request. Numerous residents expressed a wide-range of concerns regarding the proposal. The Planning Board has tabled consideration of a site plan review pending this Board’s decision on this interpretation request.
The Town Code provides that a bar may only be located in a General Business zone. The property in question, however, is located in a Local Business zone which allows, as a permitted use, a sit-down restaurant. No other uses allowed in a Local Business zone are applicable. A sit-down restaurant is defined as:
A permanent building used for the serving of meals where customers are seated principally at a table and are waited on when seating, where a full line of meals is offered, where the main proportions of the meals are not precooked or prepackaged, in anticipation of customers; and further, where, under proper authority, alcoholic beverages may be served from a service bar only and where the meal is not customarily or occasionally eaten in vehicles
Section 280-56 of the Code authorizes this Board to determine any question regarding the interpretation of any provision of the Zoning Code. In discharging this responsibility, this Board is obligated to recognize the purposes expressed in the Code for the various zoning districts, adhere to the language of the Code, and follow prior Board precedents and interpretations.
The Town Code emphasized the limitation of bar in a Local Business to a service bar by using the word “only”.
The question presented is whether the proposed use constitutes a “service bar only”. The Code does not provide a definition of either a “bar” or a “service bar”. In prior applications, both the Zoning Administrator and this Board have previously determined that a service bar, as opposed to a bar, is used to provide alcoholic beverage only to diners at tables or patrons waiting to be seated. Indeed, in granting the special use permit for the existing sit-down restaurant, the applicant represented that the bar area would be used only to serve dining customers or persons waiting for a table.
There are a number of factors that should be considered in determining the proposed use includes a “service bar only”, including the size of the bar area; the ratio of dining seats to bar stools; live entertainment; and the hours of operation. The balancing of these factors leads to the conclusion that the proposed use is not a “service bar only”. The application proposes to extend the hours of operation to 2AM Sunday through Wednesday and to 3AM Thursday through Saturday. Hours of this type are inconsistent with the express purpose of limiting uses in Local Business to those that are
compatible with surrounding residential developments. The proposal also seeks to reduce the number of inside dining seats, while increasing the number of seats at the enlarged bar. This fact also leads the Board to conclude that the proposed bar would extend beyond a “service bar only” use.
For these reasons, the Board concludes the proposed use cannot be classified as sit-down restaurant and does not fit within any use permitted in a Local Business zone."
Motion seconded by Sue Macri Vote 7 – 0.
Jim Sumner asked where the application would stand at this point.
Chairman Barber responded that if the motion is passed, the applicant has two options: they can apply for a use variance with the Zoning Board of Appeals or they can apply for a rezone with the Town Board. If this motion does not pass and someone would like to make an alternative motion saying that it qualifies as a sit down restaurant then the applicant would need to apply for a special use permit.
Counsel Feller stated that the applicant could also seek to revise their proposal in a way that could be compatible with the service bar component such as reducing hours of operation, change the size of the bar, etc.
Chairman Barber stated that if the applicant did modify their proposal it would first be determined by Don Cropsey as to what use he feels it falls within and if he still felt that there was an ambiquity or was unclear, he could refer it back to the Zoning Board of Appeals for an interpretation.
OTHER:
The Board approved a one-year extension to their Special Use Permit for Stewarts at Dr. Shaw Road and Rt. 155. Vote 7 – 0.
The Board approved a 50sf sign for Carman Wine & Liquor at 3641-3643 Carman Road. Vote 7 – 0.
The Board approved a 32sf pylon sign for Holiday Inn Express at 1442 Western Avenue. Vote 7 – 0.
There was discussion regarding the signage for the annual rose fundraiser for Guilderland Fire Department. The Board would like to know the location of the signs throughout the Town. The Board approved the signage with the stipulation that Don Cropsey work with the applicant regarding the number of signs and their locations. Vote 7 – 0.
The Board approved the minutes for 10-17-07 and 11-07-07.
The meeting adjourned at 8:45pm.
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