Zoning Board of Appeals

City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 Zoning Board of Appeals Department of Planning & Community Development City Hall - Roosevelt Square Mount Vernon, New York 10550-2060 (914) 699-7230 Shawyn Patterson-Howard Michael Justino Mayor Chair ZONING BOARD OF APPEALS MEETING MINUTES SEPTEMBER 19, 2023 A regular meeting of the Zoning Board of Appeals was held at 6:30 PM on Tuesday, September 19, 2023 in City Council Chambers on the 2nd floor of City Hall. Applicants and members of the public were permitted to attend and make public comments in person and via Zoom. The Chair indicated that the roll call was the first item on the agenda. Item #1 – ROLL CALL The Chair called the roll: in addition to the Chair, attending were Commissioners Shez Darden, Elvira Castillo, and Conrad Cutler. Also attending were PCD Commissioner James Rausse; Katherine Mella, Associate Commissioner; Maria Pace, Land Use Board Secretary; Will Hyland, Senior Planner; and Nkechi Nwachukwu, Land Use Counsel. With a quorum of four members present, the Chair opened the regular meeting at 6:35 pm. The Chair read the notice for the Zoning Board of Appeals meeting for Tuesday, September 19, 2023. Item 2 - APPROVAL OF MINUTES The Chair asked if the Commissioners had reviewed the minutes of the April 18, 2023, meeting. The Commissioners indicated that they had reviewed them. The Chair asked for a motion to approve the minutes for April 18, 2023. Commissioner Castillo made the motion, seconded by Commissioner Darden. Commissioner Cutler abstained as he was not present at the April meeting. The motion was approved with a vote of 3 Yeas and 1 abstention. 1  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 New Public Hearing Calendar # ZBA-23-7: 127 South Terrace Avenue (Section 164.84, Block 1061, Lot 17) located in the Industrial Zoning District. Regarding public notice, the Board received: An Affidavit of Mailing stating that on September 6, 2023 notice was mailed to property owners within a 500-foot radius of the site; An Affidavit of Sign Posting stating that on August 30, 2023 a sign was posted at the site giving notice of the Zoning Board of Appeals’ September 19, 2023 meeting. The Board also received photographs showing that the sign posting on the property provided notice of today’s meeting. Proof of publication was submitted showing that notice was published in the Journal News on September 5, 2023 and September 6, 2023. The owner, Mr. John Ruggiero, is represented by his Engineer, Shahin Badaly, PE. The application is for the conversion of an existing building from auto storage into a cannabis retail dispensary at 127 South Terrace Avenue. This request is for a Use Variance since the Industrial zone has no permitted retail uses. The subject property is on the east side of South Terrace Avenue approximately 400’ to the north of South Street in the Industrial zone. The subject property is 9,456 sf or 0.217 acres. The property contains a one-story commercial building and a two-story commercial building. The two-story building is proposed to be converted into a retail cannabis dispensary. The size of the building is 2,800 sf and will have 6 parking spaces in the front asphalt parking area. The first floor of the dispensary will contain storage, display cases, a sales area, and office space. The property’s frontage is approximately 94’ with a depth of 100’. The Applicant will be expanding the two curb cuts to 16’ that lead into the asphalt parking lot. The Applicant has provided a Statement of Principal Points in support of the Use Variance. The owner also provided a notification to the City that he has applied for the NYS license for the retail cannabis dispensary. The Applicant will need City Council approval for the depressed curb cuts which exceed 12’ as well as approvals from the Planning Board and Architectural Review Board. SEQRA – The proposed action is a use variance and as such it is classified as an Unlisted action under SEQRA. The ZBA would need to establish itself as the Lead Agency for the environmental review of this proposed action. The application will be sent to the following agencies: The Planning Board, Architectural Review Board, Fire Department, Police Department, Water Bureau, and the Commissioner of DPW. It will also be sent to the Westchester County Planning Board for GML review and the City of Yonkers (since the site is within 500’ of the Yonkers border). 2  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 Mr. Shahin Badaly explained that the retail cannabis dispensary would occupy the first floor only of the two-story building; the second floor will not be occupied. The second building on the property is not being used. The marijuana dispensary will be the only use on the lot. Mr. John Ruggiero, the owner of the property, explained that the second floor of the first building will remain vacant so that it doesn’t mix with another business or tenant. There are no plans to use the second building other than for possible storage. Commissioner Darden asked what the building is used for now and if it is vacant. Mr. Ruggiero said it is currently vacant with an open floor plan. The previous owner produced decals and stickers, but all of the machinery used for that business has been removed. Mr. Badaly said that the building was a mixed-use building with offices and manufacturing, but the owner is not looking to continue that use now. Commissioner Cutler asked for a high-level overview of the use of the building. Mr. Ruggiero said it will be used for retail cannabis sales for recreational use to anyone over the age of 21. Commissioner Cutler asked if the marijuana would be grown there. Mr. Ruggiero said no, it will be used for retail sales only. Mr. Badaly also clarified that they do not have a license for consumption; it would only be used as a dispensary, not a café. He also said that there would be seven parking spaces. They anticipate that the dispensary would be the busiest after 5PM when most of the surrounding blocks are empty, so there would be overflow parking on the street. The Chair asked what a provisional license was. Mr. Ruggiero explained that it is a license that the state gives for an approved location, and his location has been approved. However, there is an injunction in connection with a lawsuit that is currently underway, but Mr. Ruggiero and 22 others were removed from it. At the last court date, the judge asked for photos of the store showing that it is built-out and finished after which the state will do a final inspection. The Chair then asked if the license was provisional until the state completed its inspection. Mr. Badaly explained it is provisional until the space is fully constructed, and the state is satisfied that all requirements have been met for approval. The Chair then said that this application is the first to come before the ZBA and therefore it would be referred to the other land use boards as well as the City Council and Mayor’s Office for comments. 3  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 Land Use Counsel advised that the gathering of information from the other entities would not slow down the application as SEQRA noticing must be completed as well. The Chair advised that the ZBA will be seeking SEQRA lead agency status for this application. Commissioner Darden expressed concern that this application would be in alignment with the City’s Comprehensive Plan and that it would be handled in the right way. Mr. Badaly replied that the application is new and unique and that it is also the first one and hoped that the ZBA would take that into consideration. Commissioner Cutler asked what the applicant hoped to obtain at this meeting. Mr. Badaly replied that he was seeking commentary from the ZBA and hoping for the ZBA to declare its intent to be the lead agency for this application. Commissioner Cutler asked how many employees would be working at the dispensary. Mr. Ruggiero replied there would be about 35-40 people but not at one time. There would be 10- 12 people on a shift. Commissioner Cutler asked where the workers would park. Mr. Ruggiero said they would park at his other property at 40 S. Terrace Ave., which would be secured. The Chair asked if there were any further questions from the ZBA commissioners and then expressed his concerns regarding parking, the unoccupied 2nd story and the unoccupied second building. He also hoped that the requests for comments from the City departments, the City Council and the Mayor’s office would speak to the things that the City has the ability to regulate when it comes to cannabis sales, including location and hours of operation. Commissioner Cutler asked if Mount Vernon does not have a cannabis dispensary as a permitted use, but New York State has a separate set of guidelines for cannabis dispensaries, does one set of rules override the other? Mr. Badaly explained that the New York guidelines are state laws, not zoning laws, but both sets of rules are parallel and complementary. One set of rules does not override the other. He then said that Mr. Ruggiero’s attorney would prepare a statement advising that if there are no regulations against cannabis dispensaries, then the city cannot unreasonably impede the opening of that business but is allowed to regulate items about it. Commissioner Cutler asked about the injunction that is in place regarding cannabis dispensary licenses. 4  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 Mr. Ruggiero explained that licenses were limited to certain applicants, but a veterans group sued to be able to apply for licenses as well. As a result, the Court issued an injunction that barred the State from issuing new cannabis licenses. However, Mr. Ruggiero and about 20 other licensees were exempt from the injunction because they obtained their provisional licenses prior to August 7, 2023. The Chair brought up the issue of parking for employees and overflow and what would happen if Mr. Ruggiero were to lose the leases on the properties he has. 127 S. Terrace Ave. is jam-packed with cars and this needs to be thought through so as not to become a nuisance in the neighborhood. Land Use Counsel shared that the ZBA has the discretion to approve or disapprove applications. What is important is that the ZBA decision be based on facts in the record. She asked if the applicant could supply more “dollar and cents” proof that they are not able to achieve a reasonable rate of return if they use the property for permitted uses. She said that the ZBA needs something in the record. Mr. Badaly said that financial evidence has been provided in the “Statement of Principal Points.” He also stated that the applicant made a significant investment and is asking for a use variance as the business cannot open without it and that cannabis is a permitted use in Mount Vernon. Land Use Counsel requested that the applicant provide an analysis to show how he would not receive a reasonable rate of return on his investment without the variance. The Chair asked if there were any public comments; there were none. The Chair asked for a motion to declare the Zoning Board’s intent to serve as lead agency for the environmental review of this application. Commissioner Darden made the motion, seconded by Commissioner Castillo. The motion was approved 4-0. The Chair asked for a motion to seek comments from the City Council, the Mayor’s Office, the Planning Board, the Architectural Review Board, the Law Department, the Planning Department, and the Building Department relative to granting the use variance. Commissioner Castillo made the motion, seconded by Commissioner Cutler. The motion was approved 3-1. Aye Nay Abstain Chair Justino X Commissioner Castillo X Commissioner Cutler X Commissioner Darden X Mr. Badaly summarized by saying that he will explore getting more parking on the site, define the uses for all spaces in all buildings, offer the affidavit and other information provided to the law department, and expand as best as he can on the financial statement. 5 City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes September 19, 2023 Meeting Adjournment The Chair asked for a motion to adjourn the meeting. Commissioner Castillo made the motion, seconded by Commissioner Darden. The motion was approved 4-0. The meeting was adjourned at 7:28 pm. Maria Pace Land Use Board Secretary Robert Galvin, AICP Planning Administrator 6