TOWN OF FLORIDA — A wedding venue proposed in an existing barn in the town of Florida previously shot down by the Planning Board has resurfaced to some officials’ apparent chagrin.
Michael Crowe, the town’s land use attorney, last week informed the Planning Board of its legal obligation to review the application from John and Grace Kimber to establish a wedding and event venue in a barn on their active 35 acre farm at 526 McDougall Road.
“We want to make sure that there aren’t any further questions about whether or not the special use permit application is correctly before you,” Crowe said.
The Planning Board in May determined the proposed use was not accounted for in town code and referred the project to the Zoning Board of Appeals to seek a variance. The ZBA denied the request the same month.
Benjamin Neidl, attorney for the Kimbers, subsequently filed an Article 78 proceeding in state Supreme Court appealing the referral to the ZBA, because the Planning Board does not have that authority. That power rests with the town’s zoning enforcement officer, Gerald Podolec.
“It never should have gone to the ZBA,” Neidl said.
Attorneys agreed to stay the pending appeal and seek a zoning interpretation from the code enforcer certifying whether a wedding and event space is an allowed use in the agricultural zoning district where the project is proposed. Podolec in a letter last month found that is, because the proposal is “consistent” with other uses that are allowed by obtaining a special use permit.
Specifically, Podolec compared the activities proposed for the site to those held at churches or country clubs, both of which are allowed in the agricultural zoning district with a special use permit.
“I find that the uses and activities that you are proposing are compatible with and in some instances identical to what is permitted,” Podolec wrote. He noted the determination was not an approval of the project, which would still be subject to Planning Board review.
The zoning officer’s interpretation and the resurfacing of the application apparently did not sit well with board member John Hutchison.
“I think they’re reaching,” Hutchison said. “We already decided it’s not going to fly, he doesn’t tell us what to do.”
However, Crowe was clear that authority to determine whether a proposal fits an allowed use under the town regulations rests solely with the zoning enforcement officer. It is then up to the Planning Board to review the application to determine whether it complies with all requirements to grant the relevant approvals or permits.
“He is the only one who can interpret the code,” Crowe said. “Your jurisdiction is the application that’s here before us, does this meet the requirements we need in order to grant a special use permit.”
The step of obtaining clarification from the zoning officer to decide if the Planning Board could hear the application was apparently overlooked when it was first submitted, according to Crowe.
“When it came to your review you had kind of an open question of where does this fall. Now that question has been answered by the zoning officer,” Crowe said.
Town Attorney Deborah Slezak noted the zoning officer’s ruling did not pre-suppose the application should ultimately be approved by the board.
“You still have to do your job and go through all the steps,” Slezak said.
Acknowledging apparent “resistance” from some board members, Niedl sought confirmation the board would accept jurisdiction to review the proposal. He added that further application materials and a full site plan would be submitted in the coming weeks.
“We’re not trying to relitigate what happened, we’re just saying it got off on the wrong track,” Niedl said. “We want to get to the point where the board will rule that it will entertain the application.”
The Planning Board approved a motion formally accepting authority to review the application moving forward. Both Deputy Chairman Nicholas Armour and Hutchison voted against the motion.
Reach Ashley Onyon at [email protected] or @AshleyOnyon on Twitter.
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