&

.e3 ,. City of Rochester

City Hall Room 308A, 30 Church StreetB jbouc tORY NO. A. Warren

Rochester, New York 14614-1290 Q 3www. cityot rochester. gov

March 26, 2015

TO THE COUNCIL

Ladies and Gentlemen:Re: Zoning Text Amendment — Moratorium on

Building Permits, Zoning Permits and Variancesfor Certain Commercial Establishments in theResidential, C-i (Neighborhood Center) and0-B (Overlay Boutique) Zoning Districts

Transmitted herewith for your approval is legislation amending the Zoning Code of the City ofRochester by establishing a six month moratorium on the consideration and granting of applicationsfor building and land use permits for establishments that may serve or sell alcoholic beverages in aResidential, C-i (Neighborhood Center) or 0-B (Overlay Boutique) zoning district.

The purpose of the moratorium is to give the City an opportunity to evaluate and address theimplications of a recent court decision that annulled the City Zoning Code requirement of an 11:00p.m. closing time on bars and restaurants that are in the C-i (Neighborhood Center) zoning district.The ruling stated that the City’s right to set closing hours for establishments licensed by the StateLiquor Authority (SLA) to sell alcoholic beverages for consumption on the premises is preempted bythe SLA’s closing hour of 2:30 a.m. in Monroe County.

This ruling also has the potential to affect the City’s ability to regulate closing hours in the C-i andother zoning districts for other types of establishments possessing alcohol beverage licenses,including convenience stores, drug stores and other stores licensed to sell beer and/or wine coolersfor consumption off the premises. The SLA’s closing hour for those establishments is 2:00 a.m. inMonroe County.

The City will use the six month moratorium to review and evaluate the actual and potential impactsthat SLA closing hours for licensed alcoholic beverage establishments may have on residentialneighborhoods within the Residential, C-i, and 0-B districts and, if necessary, modify the ZoningCode to mitigate any significant adverse impacts on residential neighborhoods.

The City Planning Commission held an informational meeting on the proposed moratorium on March16, 2015. Three people spoke in support of the moratorium; none spoke in opposition. By a vote of7-0, the Commission recommended approval. Minutes from the meeting are attached.

Pursuant to the requirements of Article 8 of the New York State Environmental Conservation Lawand Chapter 48 of the City Code, the proposed moratorium is a Type II Action requiring no furtherreview.

A public hearing is required for the zoning text amendment.

Resppctfully submitted,

Lovely A. WarrenMayor

Phone: 585.428.7045 Fax: 585.428.6059 flY: 585.428.6054 EEO/ADA Employer

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it

APPLICANT:

PURPOSE:

City Council

To amend the Zoning Code of the City of Rochester byestablishing a Moratorium for SIX MONTHS on the considerationand approval of all development and building applications in allResidential Districts, in the C-I Neighborhood Center District, andin the 0-B Overlay Boutique Zoning District relating to usesaffected by the regulations of the New York State AlcoholicBeverage Control (ABC) Law in order to evaluate the implicationsof recent court decisions on City regulations.

APPLICANT ANDIOR REPRESENTATIVE PRESENTATION:

Good evening, I’m Tom WarTh from the City Law Department. I’m here to describe thepurpose and the reasoning behind this moratorium. The purpose is to give the City and

designed into the Zoning Code, is allowing earlier closing hours. In Residential Districtsit is 9 pm. In C-i it is 11 pm. So this method of making commercial uses compatible withits neighbors is no longer available to us, the City wants to have six months to place amoratorium on uses that could qualify for a State Liquor Authority License and come upwith a solution, either in revising the Zoning Code or by other means, possibly evenState Legislation. So that is the purpose of the moratorium and I am glad to answer anyquestions that you might have.

Questions from the Members:

Commissioner Zimmer-Meyer: If I am understanding you correctly, the recent courtdecision annulled the requirement for the ii pm closing time for bars and restaurants inthe C-i District. Is it a concern that that ruling could be interpreted to affect other

opportunity to evaluate the implicationsZoning Code requirement of an ii pmZoning District. That opinion came inappeals and exhausted our last one into figure out what to do about it. In thethe hours and it was premised that theState Liquor Authority is pre-empted by

of a recent court decision that annulled the Cityclosing time for bars and restaurants in the C-i2013, but we have gone through a series ofDecember. So, the ruling remains and we haveObsession ruling, the Supreme Court annulledCity’s right to set closing hours licensed by thethe State Liquor Authority’s set closing hours for

those establishments. In Monroe County, that closing time is 2:30 am for bars andrestaurants. It is also the closing time for State Liquorsell beer or wine coolers for off premises consumptionlooking at these issues and evaluating the fact that notin Residential Districts and in the Overlay Boutiquecommercial uses, in some instances bars and restauwine coolers, the regulations were based on allowingresidential areas, were small scale, and couldneighborhoods. We realized that one of the primary

Authority licensed facilities thatis 2 am in Monroe County. So,only in the C-i District, but alsoDistrict are reliant on making

rants, stores that sell beer anduses that were not obtrusive to

co-exist next to residentialmethods of doing that, and its

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Districts as well and that is why the City has chosen to add the three ResidentialDistricts and the Overlay Boutique District to the moratorium?

T. Warth: Yes, that is correct. We looked at the Residential Zoning and there areinstances where stores and even bars and restaurants can go into existing buildings, sothat is why we extended it to Residential Districts. That is also why we extended it toOverlay-Boutique.

Commissioner Zimmer-Meyer: Do we have any sense from the City’s perspective, ifyou look at all the restaurants that serve alcohol, what percentage are in R-1, R-2, R-3,boutique overlay and C-i?

J. Wiedrick: We don’t have that data, but I am sure we could come up with it.

Commissioner Zimmer-Meyer: I’m just curious even gut level what are we talkingabout?

NI. Rowe: One of the things that we did do was that we had the GIS Staff map theresidential acreage, not counting establishments, but the land area. (map handed toCommissioner Zimmer-Meyer.

T. Warth: I would add that that is a good question that we should add to our list as wego through this moratorium process.

Commissioner Zimmer-Meyer: There may be unintended consequences of this ruling.For example, if it starts to concentrate bars and night clubs more heavily in an area inthe City and therefore may impact emergency services. It is very difficult to manage bardistricts. I wonder whether the courts had that in mind.

T. Warth: That is not an issue that was raised by the Court or before the Court. Theyweren’t that concerned about where this was located, it was just a matter that there isthe closing hours set by the SLA and we want to abide by them. The moratorium waslimited to six months so that we have time to work on this, but also so that we don’thave long term adverse affects on applicants, or the issue that you raised.

Commissioner Zimmer-Meyer: What possible changes could be made that wouldallow us to manage this decision? One of those could be that there are no bars or anyenterprise that serves liquor and does that include those stores that sell it?

T. Warth: In these Districts liquor stores are not permitted or specially permitted.Further, the State Liquor Authority sets a closing time of 9 pm, so that is not as much ofa concern.

Commissioner Zimmer-Meyer: I’m not exactly sure what remedies there are for theseconcerns other than not permitting them or only permitting so many.

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T. Warth: You can imagine the Planning and Zoning Staff has the same concernbecause otherwise we would just be in front of you with just that. Part of the rationalethat I have heard from Planning and Zoning Staff is that we want these bars andrestaurants and convenience stores in neighborhoods and we want to think long andhard to figure out a way to do this.

J. Wiedrick: Heidi, the whole intent of a moratorium is to essentially press pause onthings so that the opportunity is there to allow for further study of the situation. That sixmonths is really going to provide the opportunity for Law Department and Planning andZoning to see what we have here and what are the options. It’s just pressing pause sothat things aren’t coming in and we don’t know how to deal with them.

T. Warth: You have really brought up some great questions and I invite others to do thesame as we go through this process.

S. Rebholz: Is six months enough time? Is this a time frame that you set or is it one thatyou were confined to by the applicant?

T. Warth: There have been moratoriums that have gone longer than that, but I think itwas the feeling in Planning and Zoning that they would do their best to take care ofthings in six months.

S. Rebholz: Is there the opportunity to extend the moratorium?

T. Warth: Yes, that would be a possibility.

S. Rebholz: Absent a moratorium, a body like ours would not have the opportunity tomitigate affects of certain business there may be a lot more nos? The hours ofoperation are one of the major ways of mitigate the effects of a business.

T. Warth: There are bars and restaurants that are specially permitted that come beforeyou, that is correct.

Speakers in Favor:

Wendy Kelley, 4 Colton Place: We are in favor of this moratorium at this time. It is myunderstanding that if the hours of operation has been assigned through a special permitthat that establishment must keep to those present hours of operation. We await thepositive action by the City Council that has the best interest of City neighborhoods atheart and keep places that serve alcoholic beverages to an 11 pm closing hours onweekdays. We believe that the judicial ruling was a disaster. We live in a C-i zoningarea. We encourage the City Council to invite input from their Neighborhood and blockclub organizations to send to New York State if this is necessary. Everything on theboard, changing zoning classifications, et cetera. We are in favor of the moratorium andeven extending it if necessary. You know I have been up here several times for a

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certain venue and we hope again for positive action by City Council, Thank you somuch for your time.

Dorothy HaIl, 1075 South Plymouth Avenue, Executive Director-PLEX: We just want togo on record saying that we support the moratorium and that the State does not havethe residents at heart for making decision about these businesses. We just want tomake sure that the six month moratorium will give the Planning Commission, as well asthe City Council, time to come back and make a good decision especially if keeping thehours for Monday through Thursday is 11 pm. So that is our recommendation to go onrecord for approval of the moratorium.

John Lembach, Park-Meigs Neighborhood Association: The Board of Directors votedunanimously to recommend you approve this moratorium for six months. We think morethan six months might be even better. A little background----there are an excessiveamount of liquor licenses within a ten minute walk of the corner of Park Avenue andOxford Street, which is the site of the Half Pint Bar, one of the participants in theObsessions case. We have been severely affected by late night operations of this placeand we feel that these types of businesses would not be located in this area if it werenot for making profits in this area, the bars wouldn’t be there at all. Our informationcomes from a few different sources that you might want to take a look at. The New YorkState Liquor Authority has something call the LAMP project that shows all of the liquorlicenses in New York State. You can see in sector 7 you will see the concentration thatis far greater than anywhere else in the City. This is the area that I was speaking ofearlier. Clearly there is a place to buy a drink for every 80-1 00 residents in the area.You can get that information from the City Neighborhood Data Map project which is acombination of census data and other City resources. I am in the midst of fine tuningsome of these numbers so that is the issue, but the numbers are ridiculous. Weappreciate restaurants and we don’t mind bars, but we need to have a viable residentialarea out there. Part of our dilemma is that we have had two new bars go in in the last 8months without any public hearing. They came down and applied for a permit but therewas no requirement that they notify their neighbors. We also understand that there willbe 2 additional bars opening up. So we do need to revisit how things go on. This appliesthroughout the City. When you look at the City Neighborhood Date Map project you cansee this and it has informed us. We need to know what we are looking at and so do you.so I strongly taking a look at these sites for more information. We aren’t anti-business,but there has to be some sanity out there. Tom correctly pointed out the State LiquorAuthority closing hours of 2:30 am. They are supposed to stop selling at 2 am, but thepatrons don’t need to be out until 2:30 am. This is an issue that we have been workingwith the City Police Department to rectify for the last five years. I cannot find anybodythat has been cited for anything by the State Liquor Authority other than a failure torenew their license on time. We regularly see people in bars later than 3 am and wereport them to the Police Department and have no idea what happens to ourcomplaints. Until we can get some better behavior out of the bar owners and thepatrons, a moratorium may be a good thing to prevent further damage from being done.Take a look at the website and you can see what I am trying to explain. We would like tosee you recommend this adoption.

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Speakers in Opposition: None

Commissioner Zimmer-Meyer: I just want to confirm if this would apply to newbusinesses regardless of whether or not they have their State liquor license? Would itbe relevant if there was a lapse for 9 months and a new business was coming in theDistricts noted?

T. Warth: That would be true with one exception, and we are still evaluating this, if therewere hours restrictions imposed in special permits existing already, the precedentdoesn’t necessarily pre-empt those. There is a good argument to be made that it is adifferent case.

Commissioner Zimmer-Meyer: So in this case it would encourage bar owners to sellthe name and lease the space to the new owner so that they can keep that exemption?

T. Warth: I haven’t looked that carefully at this, but I think in this case the special permitgoes with the land so if they maintain the use they would be entitled to do that lust as ifthey were the applicant. This would include renewal of a special permit.

Commissioner Zimmer-Meyer: So this would be the case it the regulations wouldchange? That they could retain the approval and continue?

T. Warth: I would like to reserve on that and look at that a little more carefully.

Commissioner Zimmer-Meyer: So it mostly applies to new?

T. Warth: Yes, we can’t go and tell existing ones to close any ealier than they arerequired to close now.

S. Rebholz: If there was a temporary that was issued in a residential or C-i District fora nonconforming use, if I understand you correctly, we as a body can maintain thoserestrictions?

T. Warth: Yes.

HEARING ENDS

CITY PLANNING COMMISSION

RECOMMENDATION

TEXT AMENDMENT

Re: To amend the Zoning Code of theCity of Rochester by establishing aMoratorium for SIX MONTHS on theconsideration and approval of alldevelopment and building applications inall Residential Districts, in the C-INeighborhood Center District, and in the 0-B Overlay Boutique Zoning District relatingto uses affected by the regulations of theNew York State Alcoholic Beverage Control(ABC) Law in order to evaluate theimplications of recent court decisions onCity regulations.

Case No: T-05-14-15

Resolution:

RESOLVED, the City Planning Commission RECOMMENDS that the Zoning Code ofthe City of Rochester be amended by establishing a Moratorium for SIX MONTHS onthe consideration and approval of all development and building applications in allResidential Districts, in the C-i Neighborhood Center District, and in the 0-B OverlayBoutique Zoning District relating to uses affected by the regulations of the New YorkState Alcoholic Beverage Control (ABC) Law in order to evaluate the implications ofrecent court decisions on City regulations.

Action: Recommend Approval

Filing date: March 16, 2015

Record of Vote: 7-0-0

D. Watson Recommend ApprovalS. Rebholz Recommend ApprovalE. Marlin Recommend ApprovalH. Zimmer-Meyer Recommend Approval

if

T-OS-14-15 I IMoratoriumPage 2

H. Hogan Recommend ApprovalT. Bruce Recommend ApprovalS. Mayer Recommend Approval

Findings of Fact:

This decision was based on the following findings of fact:

A. The proposal will be in harmony with goals, standards and objectives of theComprehensive Plan.

The purpose of the moratorium is to continue promoting the health, safety andgeneral welfare of the citizens and protect the quality of the City’sneighborhoods, by taking six months to evaluate the implications of recent courtdecisions on City regulations.

B. The proposed amendment is compatible with the present zoning andconforming uses of nearby property (ies) and with the character of theneighborhood:

The purpose of the moratorium is to give the City an opportunity to evaluate andaddress the implications of a recent court decision that annulled the City ZoningCode requirement of an 11:00 PM closing time on bars and restaurants thatare in the C-i Neighborhood Center Zoning District. The ruling was premised onthe rationale that the City’s right to set closing hours for establishments licensedby the State to sell alcoholic beverages for consumption on the premises ispreempted by the State Liquor Authority’s (SLA) established closing hours, whichis 2:30 AM in Monroe County.

This ruling also has the potential to affect the City’s ability to regulate closinghours in the C-i and other Zoning Districts for other types of establishmentspossessing alcohol beverage licenses, including convenience stores, drug storesand other stores licensed to sell beer and/or wine coolers for consumption off thepremises. The SLA established closing hours for those establishments is 2:00AM in Monroe County.

The City will use the six month moratorium period to review and evaluate theactual and potential impacts that the 2:00 AM and 2:30 AM closing hours forlicensed alcoholic beverage establishments may have on the residentialneighborhoods within the Residential, C-i, and 0-B Districts, and if necessary,modify the Zoning Code to mitigate any significant adverse impacts on adjoiningresidential neighborhoods.

T-05-14-15 11MoratoriumPage 3

C. The property affected by the amendment is suitable for uses under theproposed zoning:

The proposed moratorium is not directed toward any specific propertyes), asthe intent is to evaluate over the course of six months the implications of recentcourt decision on City regulations for uses affected by the New York StateAlcoholic Beverage Control (ABC) Law in all Residential Districts, in the C-INeighborhood Center District and in the 0-B Overlay Boutique District.

0. There are available public facilities, services and infrastructure suitable andadequate for the uses allowed under the proposed amendment.

It is not anticipated that the proposed text amendment will have any effect onpublic facilities, services and infrastructure.

I

NmODUCTORY NOt / 3

Local Law No.

Establishing a six-month moratorium on permits, certificates of zoningcompliance and use and area variances for certain commercial establishments inthe Residential, C-i Neighborhood Center or 0-B Overlay Boutique zoning districtwithin the City

BE IT ENACTED, by the Council of the City of Rochester as follows:

WHEREAS, in order to give the City an opportunity to evaluate and address theimplications of a recent court decision that annulled the City Zoning Code requirementof ii p.m. closing time on bars and restaurants that are in the C-i NeighborhoodCenter zoning district, the City of Rochester hereby intends to place a six-monthmoratorium on the acceptance of, and on the approval of, applications for building andzoning permits, special permits, certificates of zoning compliance and use and areavariances for the following uses:

A) in the Residential, C-i Neighborhood Center or 0-B Overlay Boutiquezoning district within the City: 1) bars, 2) cocktail lounges, 3) taverns, 4)restaurants, 5) retail sales and service, full-Line food store, 6) retail salesand service, low-impact, serving or selling any food or beverage, and 7)retail sales and service, high-impact, serving or selling any food orbeverage; and

B) in the 0-B Overlay Boutique zoning district: 1) retail sales and servicelimited to the sale of specialty food;

WHEREAS, in a lawsuit against the City brought by Obsession Bar and Grill, Inc.(Obsession), an establishment located in the C-i zoning district licensed by the NewYork State Liquor Authority (“SLA”) to serve alcoholic beverages, New York StateSupreme Court Justice John Ark annulled a decision of City Zoning Board of Appealsthat required Obsessions to close at ii p.m. on weeknights and annulled a City ZoningCode provision that requires all bars and restaurants located in the C-i district to closeat ii p.m. every day of the week (the “Obsession ruling”);

WHEREAS, the Obsession ruling is premised on the judicial finding that theZoning Code closing hours are preempted by the New York State Alcoholic BeverageControl Law, which in Monroe County, requires SLA-licensed bars and restaurants tocease selling alcoholic beverages at 2 a.m. and allows the establishments to stay openanother 30 minutes for customers to finish the drinks they have purchased;

WHEREAS, the City of Rochester appealed the Obsession ruling to the StateSupreme Court Appellate Division for the Fourth Department, which, on June 13, 2014,affirmed the lower court’s decision;

1/

WHEREAS, the City sought permission to appeal the Appellate Division’sdecision to the Court of Appeals, the State’s highest court, first from the AppellateDivision, which denied the City’s request on September 26, 2014, and then from theCourt of Appeals itself, which denied the City’s request on December 18, 2014;

WHEREAS, there are no further appeals or other judicial remedies available tothe City to obtain a reversal or modification of the Obsession ruling;

WHEREAS, the Zoning Code in Chapter 120 of the Municipal Code provides forthe placement of certain commercial uses in the A-i, R-2, and R-3 Residenfial, C-i and0-B zoning districts with conditions and restrictions that are designed to make themcompatible with the adjacent or nearby residential neighborhoods in order to, in thewords of the Zoning Code: “provide neighborhood-scale shopping and serviceopportunities” that “preserve, promote and protect a quality of urban residential living”(i 20-i 6 for R-2 district); provide “small-scale commercial uses offering primarilyconvenience shopping and services for adjacent residential uses” that are “unobtrusiveand conducted at a scale and density compatible with the surrounding neighborhood”(1 20-33 for C-i); and “protect and enhance older City neighborhoods... suitable forcertain small-scale commercial uses that can exist proximate to neighborhoods withoutadversely affecting the residential environment (120-104 for 0-B);

WHEREAS, the night-time closing hours established in these districts areintended to preserve the compatibility of commercial uses with their residentialneighbors;

WHEREAS, in addition to the ii p.m. closing hours for bars and restaurantslocated in the C-i District, the Zoning Code specifies closing hours for the full range ofcommercial uses in the Residential, C-i, and 0-B districts, including offices, retail salesand services, food stores, restaurants, as well as bars, cocktail lounges and taverns,that are uniform within each district, including 9 p.m. in the Residential zoning districtsand ii p.m. in the C-i and 0-B districts;

WHEREAS, in Monroe County, the closing time for SLA-licensed establishmentsestablished in accordance with the NYS Alcohol Beverage Control Law is 2:30 a.m. onweekdays and Sundays for establishments, such as restaurants and bars, selling liquor,wine and/or beer for on-premises consumption (alcohol service ends at 2:00 a.m. plus30 minutes for patrons to finish their drinks) and 2:00 a.m. for retail locations, such asconvenience stores, groceries and pharmacies, selling beer and/or wine coolers for offpremises consumption; and

WHEREAS: therefore, the City Council of the City of Rochester finds that:

(1) The establishment of reasonable nighttime closing hours is very important tomaking commercial establishments compatible with their residential neighbors, in

(1

order to protect neighbors from the noise, lights, and traffic that naturally arisewith the nighttime operations of commercial establishments and the comings andgoings of their customers.

(2) When the City adopted its Zoning Code regulations that allow commercialuses within or adjacent to the residential neighborhoods within the Residential,C-i and 0-B zoning districts it was assumed that the City had the authority toregulate night-time hours of commercial establishments.

(3) The judicial decision in the Obsession case requires the City to allow barsand restaurants in the C-i district that purvey alcoholic beverages to remainopen until 2:30 a.m.

(4) The City has not had sufficient opportunity to review the actual and potentialimpacts that the later closing hours for alcoholic beverage establishments wouldhave on the residential neighborhoods within the Residential, C-i, and 0-Bdistricts, If it is ascertained that the extended nighttime hours will harm adjoiningresidential neighbors, the City will have to consider modifying its Zoning Code tomitigate the harm.

(5) A sixth-month moratorium on establishments within the City’s Residential, C-iand 0-B zoning districts that are or may become eligible to serve or sell alcoholicbeverages is an appropriate use of the City’s zoning powers in order to providetime to evaluate and address the impact of the Obsession ruling on the City’sgoal to protect and promote residential neighborhoods that are enhanced withcompatible neighborhood-scale commercial uses.

NOW, THEREFORE, BE IT ENACTED, by the Council of the City of Rochesteras follows:

Section 1. There shall be a moratorium extending until October 31, 2015 on theacceptance of, and on the approval of, applications for building and zoning permits,special permits, certificates of zoning compliance and use and area variances for thefollowing uses:

A) in the Residential, C-i Neighborhood Center or 0-B Overlay Boutiquezoning district within the City: i) bars, 2) cocktail lounges, 3) taverns, 4)restaurants, 5) retail sales and service, full-line food store, 6) retail salesand service, low-impact, serving or selling any food or beverage, and 7)retail sales and service, high-impact, serving or selling any food orbeverage; and

B) in the 0-B Overlay Boutique zoning district: 1) retail sales and servicelimited to the sale of specialty food;

/ I

This moratorium shall apply without regard to whether the applicant claims or disclaimsan intent to purvey alcoholic beverages.

Section 2. It is hereby acknowledged that this local law is inconsistent with theprovisions of NYS General City Law Section 81-8 to the extent that it temporarily staysthe City of Rochester Zoning Board of Appeals from exercising its jurisdiction overapplications for use and area variances for the uses that are subject to the moratorium.The City Council hereby finds that this temporary inconsistency is appropriate in thisinstance because the moratorium is necessary to advance the City’s interests in theevaluation, adoption and amendment of zoning regulations that will promote itsComprehensive Plan goal to protect and promote residential neighborhoods that areenhanced with compatible neighborhood-scale commercial uses in its Residential, C-iand 0-B zoning districts consistent with NYS General City Law Sections 20(25) and 28-A. Therefore, the moratorium in this local law complies with the Constitution andstatutes of the State. NYS Constitution, Article IX, Section 2; NYS Municipal HomeRule Law Sections 10 and 22; and NYS Statute of Local Government Section 10.

Section 3. This local law shall take effect immediately, and shall apply toapplications filed after the date it is enacted.