In the last five months, the Zoning Board of Appeals has denied the petitions of three new businesses in Jamestown for various reasons.
Over the last year, however, these are the only petitions that have been denied. Others looking for variances - including for an owner-occupied hair salon and several others - have been granted their requests.
In June, a petition for a use variance to utilize property at 63 W. 23rd St. as bottle redemption center failed to pass the Zoning Board of Appeals. In July, the board turned down a request for a beauty salon at 73 Forest Ave., a property owned by the Fenton Historical Society. Finally, a request for a tattoo parlor at 401 Foote Ave. was denied earlier this month.
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73 Forest Ave.
"I just think as a city needing so much business, this is not the way, I guess, to promote it," said Stacy Howser, whose petition for the beauty salon was denied. "I feel like the city could have done a little bit more to help. I feel like, these are businesses that could bring business or jobs or taxpayer money, but now they're not."
According to the New York State Department of State Division of Local Government Services, Zoning Boards of Appeals "serve as 'safety valves' in order to provide relief, in appropriate circumstances, from overly restrictive zoning provisions."
Getting a zoning variance, however, is not designed to be easy. Ellen Ditonto, chairperson of the board, said it is stressed in required yearly training, that variances should not be approved in lieu of getting zoning changed.
"You should never just say, 'Okay, we're going to spot zone for you because we like you,'" Ditonto said. "You have to be the same level across the board. Either it works according to the zoning, or it doesn't. It's to protect property owners, not to be difficult for businesses."
ZONING HISTORY
The zoning code was put in place by City Council, after working with the Planning Board, in 1988. The zoning map, on the other hand, was adopted in October 1998. The map prior to that was from 1969.
"Some of the map is just because of the general character of what was there to begin with. Some of it was, I think, to keep the neighborhood from changing to a type of use that we didn't want to see certain areas evolve into," said Larry Scalise, city building and zoning code enforcement officer.
There have been several changes in zoning trends in the years since the zoning code was put into place. The current trend, Ditonto said, is what she called "cottage-type business," or people working out of their homes.
"It's difficult because the zoning code doesn't specifically talk about those kind of cottage industries, so we use the code and the variance request to go through those four tests to see whether or not to allow a cottage-type business," she said.
Many municipalities do not have zoning, according to Ditonto. However, zoning in Jamestown is in place to protect the rights of property owners and the neighborhood.
"I think that is the premise that people who are on the zoning board, and certainly the city government officials, that's the reason why they put together a zoning code," she said. "They were trying to make sure that businesses were carved out in business districts and residentials were kept somewhat protected from commercial businesses."
DENIED
Howser, along with Sarah Mills, owner of Something Beautiful Tattoo & Piercing, reached out to The Post-Journal with their stories.
Each woman had invested time and money into their business before having her application rejected by the zoning board. Howser is now working to pay back the thousands of dollars she said she took out in business loans, without a business.
"I have to try to recuperate some of my money. I'm so many thousands of dollars into this that I'm kind of spent at this point. To go through what I've just been through, investing all my money, I'd have to do it again (to open a shop somewhere else). I don't have that kind of money," Howser said. "It's emotionally draining, it's financially draining. And, I have a family to take care of as well, so it takes money away from that."
Mills' story is similar. In a letter to the Zoning Board of Appeals, and copied to The Post-Journal, Mills wrote that she has had her own business in different countries over the last seven years, before settling into Jamestown with her husband and their daughter. With their daughter being only 1 month old, and an opportunity from the Mills's landlord to open a tattoo shop in the same building they already lived in, the family took the chance.
"We needed to make money somehow, and decided, opening up our own place was the way to do it. A way to take care and provide for our little family," Mills wrote.
Howser and Mills soon found themselves in front of the Zoning Board of Appeals, represented by their respective landlords. Howser said she never thought her petition would be denied. All of the work in her location had already been completed, without knowing that city code would not allow for her business to actually be opened.
"The work was done, the money was spent and (the landlord) never knew about the variance, which, as a landlord, that was her responsibility as the landlord, not mine as the business owner," Howser said.
RECEIVING A VARIANCE
The city has set districts where businesses can operate. There are set dimensions and laws around everything from having a shed to how far a home should be set back from the sidewalk. If a homeowner works with the Department of Development before a project is started, it very well could save stress in the end project.
"People might (go in front of the Zoning Board of Appeals) because they'll ask for a building permit, or possibly a certificate of occupancy or a zoning compliance," Scalise said. "Basically, they want a permit to do something. Or, they go and do something, and then when I find out about it, we take them to it. I receive a complaint, I'll talk to the owner and we'll explore their options and maybe go for a zoning variance."
Scalise can help a homeowner with regulations before a project begins. However, if a project has already been completed and does not follow code, a variance is likely the next step.
"To file for a variance, you have to have legal standing," he said. "You could be the property owner, you could be the tenant. If you were the tenant, we just ask for a copy of the lease. Or, if you're going to purchase the property, if you put a contingency on a purchase offer, that gives you the legal right. Then, you go through the board."
THE ZONING BOARD
The Zoning Board of Appeals has seven members, each appointed by Mayor Sam Teresi for a three-year term. Each member of the zoning board is required to go through four hours of training each year they are on the board.
"If you are appointed as a zoning official, you have to go for the training. If you don't, then you can no longer serve on the zoning board," Ditonto said.
Scalise attends each Zoning Board of Appeals meeting, although he is not a voting member of the board. However, by being there, he is able to help clarify any questions that may arise.
Each month, the members of the board receive copies of each petition, as well as any corresponding paperwork, including maps, information and any letters that have been received. Additionally, a legal notice of the upcoming petitions is printed in the local newspaper, which is required by law.
Ditonto said she personally drives by the property in the petition, as do several other members of the board.
"It takes a little bit of time, depending on the number, to get through all of the paperwork and then also to go and visit the property," she said. "A lot of what happens in terms of the decision making has to be brought by the person who is making the petition. They have to bring it to the meeting."
FOUR TESTS
"One of the things they tell you in training is, it should be very difficult to get approval for any kind of a variance," Ditonto said.
In order to receive a use variance, which allows for the property to be used for a specific business, four tests must be passed before the variance can be granted.
The Zoning Board must review each of these four tests carefully, because if a variance is granted, that variance is forever attached to the property, even if the property changes hands.
"Variances aren't short term. The zoning board and the city government has to look at that, they pass from owner to owner," Ditonto said. "So, once you make a decision and say it's OK for this piece of property to be used for a certain variance, it goes on forever."
The four tenents that the board looks at for a use variance state that the applicant cannot realize a reasonable return provided that the lack of return is substantial as demonstrated by competent financial evidence; the alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood; the requested use variance, if granted, will not alter the essential character of the neighborhood; and the alleged hardship has not been self-created.
"Over the years, it's always the concern of the neighbors that weighs very heavily into the decision making," Ditonto said. "So, of those tests, that one is particularly important because of the public input, either through written correspondence or when people do come to the board. But, that's not all of them."
Scalise said he tries to work with people before they appear in front of the board. He goes over each of the four tests with the petitioner, and tries to anticipate the questions they will be asked.
"If you come in and are prepared and have a logical reasoning, it does increase your chances of getting your variance granted," he said. "If you just show up with your hands in your pockets and go, 'Uh, uh,' it doesn't help."
Petitioners must also bring financial information in front of the board, in order to prove the financial hardship it would cause if the variance is not granted. Also, petitioners must prove that they did not create their own hardship.
"If you come in and say 'I bought a piece of property and I forgot to check the zoning and so I decided I was going to put that business there and I didn't realize,' Well, it's self-created. You have to prove that it's not self-created," Ditonto said.
BUSINESS-FRIENDLY?
Although it has recently declined the petitions of three businesses, there are countless other business petitions that the Zoning Board of Appeals has passed over the years.
According to Ditonto, the board does its best to keep up with the trends it sees and does its best to work with business owners.
"I think it's probably the most misunderstood problem that we have with the zoning board. Zoning variances should not be automatically approved. The training speaks to that each and every year," she said.
The bottom line is whether petitioners are able to prove each of the four tests presented. If they are denied the requested variance, petitioners have the option to appeal the decision in court. However, according to both Scalise and Ditonto, the judge looks back to the decision by the Zoning Board of Appeals to determine whether it did its job.
"It makes us look like we're being adversarial, but we're only following the law and the training that we have gotten," Ditonto said.