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HomeMy WebLinkAbout20190069 Artisanal Brew Works Comments 5-20-19 i2 byF !01120,19 MEYER, '81 FULLER & STOCKWELL .0 LAKE GEORGE PLLC ATTORNEYS AT LAW May 20, 2019 City of Saratoga Springs, Zoning Board of Appeals City Hall 474 Broadway Saratoga Springs,NY 12866 Re: Appeal by Quinn Borchardt Brewing, LLC d/b/a Artisanal Brew Works Property at 41 Geyser Road, Saratoga Springs, NY; TMP 178-1-33 Dear City of Saratoga Springs Zoning Board of Appeals: I am providing herewith some key points for the ZBA to consider: Item Appealed Patrick Cogan, Assistant Building Inspector, Zoning Officer, dated November 26, 2018 (the Determination"). Selected Determination Provisions 1. "The tasting room does not have approval under City Zoning....as an eating and drinking establishment." See Exhibit A, page 2; 2. "...no food preparation or sale of prepared food for consumption on the premises is permitted." See Exhibit A, page 2; 3. "...Retail is not a permitted use in the IND-G zoning district, nor is an Eating and Drinking Establishment." See Exhibit A, page 3; and 4. "No outdoor activity such as food vending, recreational activities, or special events associated with the brewery are permitted on the property". See Exhibit A, page 3. Prior City Determinations Benefit Artisanal Brew Works The preparation and serving of limited food items and retail sales are consistent with the use of a "bottling plant" as broadly interpreted by the administrative official charged with the enforcement of the Zoning Ordinance and given the ambiguity contained therein. 1557 STATE RT.g, LAKE GEORGE, NY 12B45 P1-%ore 51S668-2199 wwwmeyerfullercom • Page 12 I. There is no definition of"Bottling Plant" in the City's Zoning Ordinance. In fact, -bottling plant" is only mentioned in Table 2: Use Schedule, Under"Uses Permitted with Site Plan Approval" in the"Industrial Light" Zone where this property is located, and in Section 6.2.6 dealing with off street parking, which we meet. 2. It is hornbook New York Law, that Zoning restrictions are in derogation of the common law and, as such, must be strictly construed against the municipality which enacted and seeks to enforce them, and that any ambiguity in the language employed must be resolved in favor of the property owner. Spilka III v. Town of Inlet, 8 A.D.2d 812, 814 (3rd Dept. 2004); Bonded Concrete Inc. V. ZBA of the Town of Saugerties, 268 A.D.2d at 774, supra; Matter of Allen v. Adami, 39 N.Y.2d 275, 277 (1976); Matter of Uciechowski, 221 A.D.2d at 868, supra; McKinney's Cons, Laws of N.Y., Book 1, Statutes, §311, at 473- 474. a. See Exhibit A, page 9, which is a"Building Permit" dated 12/12/2016, under -Comments/Conditions: TENANT SPACE INCLUDING BREWERY, TASTING ROOM(BAR), LAB, OFFICE AND COLD ROOM", Emphasis added; b. See Exhibit A, page 10 under "Comments/Conditions: BREWERY AND BAR FIXTURES"; Emphasis added; c. See Exhibit A, page 33, copied below, which acknowledges ancillary uses such as Cabaret License activities: • From Richard Tiersch<richard.tiersch©saratoga-springs.org> Tue,Oct 16,2018 10:50 AM Subject:Fwd:Artisanal Brew To:Stefanie Richards<stefanie.richardssaratoga- springssorg> Stefanie, The building department has no issues at this time regarding the Cabaret License for Artisanal Brew Works located at 41 Geyser Rd as long as 'the seating remains the same as last year and there is a clear path of travel maintained to all exits at ALL times'. Artisanal Brew Works would also need to operate under the guidelines as described by Brad Birge below. Sincerely, Rich Tiersch And at page 34: 111./1 I rl Re: Artisanal Brew cabaret license We understand that the cabaret activities are an ancillary activity related to the brewing and tasting room activities permitted under the NY State Fam Breaers license with the caveat that: 1. this remains an ancillary activity and does not become a primary activity 2. the cabaret activities are conducted wholly within the Artisanal tasting race portion of the building - no outdoor cabaret activities are permitted 3. the total number of sera permitted in the tasting room cannot exceed 50 regardless of any singular or corbination of uses. Thank youj Bradley d. See Exhibit A, page 45, copied below, which acknowledges ancillary uses such as Eating and Drinking License activities: 1557 STATE RT.9, LAKE GEORGE, NY 12845 Phone 518-6682199 wwwmeyerfullercorr Page 13 From:John Barney<johnibarney@saratoga-springs.org› Wed,Sep 27,2017 04:39 PM Subject:Re:Artisanal Brew Works To:Carrie Spencer<carrie.spencer@saratoga-springs.org> Carrie, The Building Dept has no issues at this time regarding the Eating and Drinking License for Artisanal Brew Works(41 Geyser Rd). Sincerely, )ohn Barney Zoning and Building TechnIcian 3. Here, the City staff has previously determined that ancillary uses to what has been described as a "Bottling Plant", include: a. a"Brewery", (not defined in City's Zoning Ordinance) b. "Tap Room", (not defined in City's Zoning Ordinance) c. "Tasting Room(BAR)", (not defined in City's Zoning Ordinance) d. "Eating and Drinking License" uses. e. "Lab", f. "Office", g. "Cold Room", (not defined in City's Zoning Ordinance) h. "Bar", i. "Cabaret License" uses. A "Cabaret" is ALSO not defined in the City's Zoning Ordinance. Neither are a j. A"Laboratory" is a defined use, but not discussed in the "IND-G"zone. 4. All of these descriptions clearly point to the finding by staff that "Bottling Plant" is an extremely broad term, one wide open to interpretation by the Zoning Officer. Such wide interpretation is in and of itself ambiguous. 5. City has repeatedly treated a"bottling plant" as a broad term, with numerous associated uses. 6. The Determination is arbitrary, capricious, contrary to law, and irrational. The Zoning officer without explanation allows, then disallows "Retail" sales. 1. The Determination allows a tasting room, which of course permits the sale of "tastings" including pints of beer, to patrons, which of course is in and of itself, a retail transaction. However. the Determination then inexplicably states that -Retail is not a permitted use". Would this include the sale of cans of craft beer to patrons? That too is incidental to the"Tap Room" or -Tasting Room-, and clearly incidental to the "Bar-. Such -Retail" sales are not the predominant use of the Property, but are clearly incidental to the "Bottling Plant" again, based on the prior determinations of the City officials. 2. The distillery was clearly permitted to sell bottles of spirits, T-shirts, glassware- all retail sales. Why Now? 1557 STATE PT 9, LAKE GEORGE, NY 12845 Phone. 518-668-2199 wkAlevrneyerfullercorn Page 14 I. The Zoning officials' determination was completely unsolicited. That is, it was not in response to any written complaint of which we are aware. So we have to ask ourselves, why now? No new permit was applied for, and no new permit was issued by the City. 2. The ZBA cannot endorse a local review process that essentially permits City staff to re- interpret the Zoning Ordinance as the winds of change permit. That is blatantly unconstitutional. Regulatory Taking I. This change in the City's Zoning Ordinance interpretation, if sustained, amounts to a regulatory taking of my clients' vested property rights. The City of Saratoga Springs cannot allow, indeed even endorse, a small business investing well north of$500,000 in a facility, then to change the interpretation of the Zoning Ordinance in a manner that completely guts the businesses' ability to generate income and survive. 2. We are told that this was in response to a perhaps influential neighbor. That is not the proper grounds for revoking a previously issued approval, and is unlawful. Zoning is not for sale. 3. Artisanal Brew Works relied to its detriment on a properly issued prior approval that has now essentially been revoked. That is a taking of private property rights. Sincerely, /4574/410110 Matthew F. Fuller, Esq. mfuller(Ameyerfuller.COM 1557 STATE PT,g, LAKE GEOPGE, NY 12845 7)hone. 518-668-2199 t~wmeyerfullercorn