Wed, Nov 2nd 2022 12:00 pm
By Joshua Maloni
Self-storage is not a permitted use in the Village of Lewiston B-1 district, the Zoning Board of Appeals decided at a meeting Tuesday afternoon.
Applicant and real estate investor Vick Singh Ghotra seeks to reimagine the Lewiston Event Center space. But by a 4-1 measure, the ZBA voted self-storage does not align with municipal code Section 9, District Regulations, D.1.b.g.
Ghotra’s counsel, Corey A. Auerbach, a partner at Buffalo’s Barclay Damon, provided four paths for approval. The ZBA didn’t sign off on any of them. Members cited Zoning Code Appendix C, Section 6, which they said calls for rejection of what’s not specifically listed as permissible – including self-storage.
Ghotra intends to purchase and renovate 845 Cayuga St., a bowling alley and sports bar owned by Emery Simon and Harold Hibbard. He initially presented plans to the Historic Preservation Commission and Planning Board in September. When Ghotra and his architect, Mark Dean of Dean Architects, returned in October, they were met with news the plan might not be permitted under existing zoning regulations.
Debate was spurred on by HPC members and architects David Giusiana and Jim Fittante – who have presented numerous development plans to the Village of Lewiston. They said self-storage, or warehousing, can only be an accessory use in B-1 (general business, multiple family, townhouse).
‘We have a code to follow; and that’s up to you guys to follow’
At a public hearing prior to the board’s vote, four residents spoke against the self-storage proposal, saying there is a better use for the building, a greater need for family programming, a desire to not become like Military Road in Niagara Falls, and a fear that a vote for the applicant would result in additional storage unit facility requests from other parties.
HPC Co-Chairman Peter Coppins said, “All of you, I’m sure, have read our codebook, at this point. It pretty much is in black and white that says you can’t do it.”
He added, “We have a code to follow; and that’s up to you guys to follow.”
Planning Board member Doreen Albee said, “Our code, in terms of personal service establishments, they’re listed; but it also has a clause, ‘Such as, but not limited to.’ So, in that issue, there is some judgment required. And that’s what we came to your body for, for further discrimination.”
Giusiana said, “Our code is horrible. It’s a code that was done in a very abstract way, and not really cognizant of the special qualities that is the Village of Lewiston. It’s kind of a generic code. I know we’ve made alterations over the years but, still, it does not serve us the way it should.”
With regard to the applicant’s proposal, Giusiana said, “Our predecessors saw some rationale in not including this type of use in the master plan, nor subsequently included it in our current version of the zoning and planning code. I think that’s for a reason.”
Part of the argument for permitting self-storage, at 845 Cayuga St., is that an existing self-storage business is located right across the street.
‘The law of the state of New York mandates that you determine that the ambiguity be resolved in favor of the applicant’
Auerbach said, “The applicant is entitled to bring forward a development pursuant to the village’s code.”
What’s more, “He made several appearances before the Planning Board and the Historic Preservation Commission and, somewhere in the middle of the game, seemingly, it was determined that there was a question regarding the permissibility of the use. It was not a question when he first approached the code enforcement officer with his development. It was not a question when he made his first or even his second appearance before the Planning Board. It was only in the middle of the game, that somewhere, somehow, some concern was generated regarding the use.”
Auerbach said the self-storage proposal could be approved for any one of four reasons.
“I’m here to present that the proposed self-storage facility is, in fact, a retail business establishment. There is no definition of retail business establishment in the zoning code,” Auerbach said. “I’m also here to say, if it’s not a retail business establishment, it is a personal service establishment – a term, again, not defined in the village code. And if it’s not a retail service establishment or a personal service establishment, it is clearly another business use which is similar in nature and in scale to those permitted uses.
“If it is none of those things, as was stated by several members of the public as part of this hearing process, the code is ambiguous. It is not clear whether it is permitted or not permitted. And because zoning is in derogation of the common law principles of private property, the courts of the state of New York – including the highest court, the Court of Appeals – routinely determined that that ambiguity must be resolved against the municipality who drafted the code, and in favor of the interpretation of the applicant.”
Auerbach said, “I would also note, back in 1995 – March 13, 1995 – the Planning Board of the Village of Lewiston determined that self-storage facilities were a permitted use in the B-1 district.” He said Lewiston Mini Storage was approved “in the same B-1 zoning district.”
“I think that a credible argument could be advanced that a self-storage facility is, in fact, a retail establishment,” Auerbach said. “What is a self-storage facility? It is a place where people store their personal belongings, that need to be stored for whatever reason, either outside of their home or outside of their business. In that way, it’s similar to a personal service establishment. This is a personal service to people who need extra storage for their personal goods. And again, both retail service establishments and personal service establishments are defined not by an explicit definition, but by a nonexhaustive list of uses.
“Personal service establishments, for example, allow banks. I would argue a self-storage facility is similar to a bank. A bank is a place where you bring your money, that you do not want to keep in your house, for safe storage, until you need that money; at which point you can go to the bank and remove that money out. In that way, it’s similar to a self-storage facility.
“And of course, it’s very difficult to argue that the proposed facility is not similar in nature and scale than those permitted.
“Let’s talk about scale first of all. The proposal is to renovate the existing building. The scale will not change. It is next to a pool service supply store. It is next to a village highway, or public works, storage barn. And again, directly across the street from an existing self-storage facility. So, it is certainly similar in scale. And it is similar in nature. Very difficult to argue that self-storage is any different than the mini-storage, which is directly across the street from this proposal, and in the same zoning district.”
‘Those matters for which there are no specific provision in this ordinance shall be deemed to be prohibited’
Fittante countered: “There is a provision in Section 6A: ‘It’s the provision of this ordinance shall be deemed to be specific, those matters of which there are no specific provisions in this ordinance shall be deemed to be prohibited.’
“So, the only place in our whole code that it says storage, it’s an accessory use – and it has to be with a business. (It’s) the storage for vehicles only right now.
“I think it’s pretty clear that it’s not in our code. And where we do have it in our code, it’s pretty specific.”
Village counsel Joseph Leone said, “Here’s what our code says. (Auerbach) is correct in that New York state law, Court of Appeals, does say that, if there’s ambiguity, that you have to decide the ambiguity in favor of the applicant. Notwithstanding that, however, what Mr. Fittante said is absolutely accurate. There is a provision in our zoning law that says, ‘The provisions of this ordinance shall be deemed to be specific. Those matters for which there are no specific provision in this ordinance shall be deemed to be prohibited.’
“So, we do have something in our code that attempts to resolve that ambiguity by way of prohibition. But it’s going to be up to this board to decide whether or not there is ambiguity and, if so, should that be resolved in favor of the applicant; or, whether or not the provision of the code that says that, if there’s no specific provision in the ordinance, it shall be deemed prohibited – which of those is applicable in this particular set of circumstances.”
Leone went on to explain what constitutes a retail or personal service establishment, and what qualifies as “similar in nature and in scale.”
The applicant’s plan calls for the Lewiston Event Center to be converted into a self-storage operation similar to the Life Storage facility located on Military Road (at the former Kmart site).
ZBA member Bart Klettke cast the lone vote in favor of the applicant. He said, “The language ‘but not limited to’ – that’s a pretty wide-open statement, right?”
Leone said, “It is a wide-open statement. But you have to decide that it’s ‘other businesses, which in the opinion of the Board of Appeals, are similar in nature and scale to those permitted above.’ ”
Ghotra said Zoning Officer/Building Inspector Ken Candella “did guide me from the start that this was a permitted use, verbally, and I can also show it to you in writing.” He presented copies of email correspondence to verify those communications.
Candella was not at the ZBA meeting. At the Planning Board session, he was made aware of board members’ zoning concerns. At that time, Candella requested more information on the applicant’s proposal, as well as details on the approval of the storage facility across the street.
Auerbach said that, in response to “the reference to Section 6 regarding if there is no specific provision, it is prohibited – I just want to highlight what an incredible ambiguity the reference to that provision creates. Mr. Leone pointed out a code provision that said if there’s not a specific provision, it is prohibited. Yet the code itself defines and describes these uses with nonexhaustive lists of what is a retail service establishment, and what is a personal service establishment. It then provides an expressly permitted use that says, ‘Eh, whatever the Zoning Board thinks is similar.’
“Think of the ambiguity that those two provisions create. There is absolutely no clarity regarding how the applicant is supposed to interpret the village’s code. At a minimum, it is completely ambiguous as to what is allowed here. Which, as Mr. Leone stated, requires that you interpret it in favor of the applicant.”
‘It’s not specific, wherefore it can be prohibited’
ZBA Chairman Michael Swanson disagreed. He said he didn’t find the applicant’s proposal to be similar in scale to other entities in the B-1 district.
“I kind of agree with you with the banks being in nature like it’s self-serving – you’re storing your money. That’s close to being similar in nature. But it has to be similar in size in nature and scale. It has to meet both criteria. Section 6, where it says specifically if it’s not mentioned specifically, I think that’s not ambiguous at all. I think it’s pretty clear. And the permitted uses, there is no storage facility listed.”
Klettke said, “This is what Mr. Giusiana pointed out about the code being written improperly. … ‘But not limited to’ opens it wide open.”
He added, “It’s open whether the code allows it. And I’m afraid there’s too much (vagueness), that they probably have a case. That’s how I interpret that.”
ZBA member Ken Bedore said, “I do believe that the Section 6A covers the fact that it’s not specific, wherefore it can be prohibited.”
In further explaining his vote, Swanson said, “The B district, the business district, letter G, other businesses, (states) with the opinion of the ZBA, are (they) similar in nature and scale to the ones permitted above. Since the businesses listed above do not specifically list a storage facility, or a warehouse facility, for that matter, I don’t think that it is allowed in that district.
“Then Section 6 says that if it’s not specifically listed, then it should be prohibited.”
He added, “I do not think that is a retail establishment, because there’s no objects for sale. The things that are for sale are really for rent. It’s not really retail, in my eyes. …
“Personal service establishment – no, I don’t think it is. It’s close – I guess that’s where the little bit of ambiguity would come, would be with that. But it doesn’t list that specifically for that.”
The ZBA’s ruling halts the applicant’s ability to create a self-storage business at the LEC – at least for now.
Following the meeting, Ghotra said, “I’m very surprised of the decision. I thought it was clear, but of course, some people don’t think that it was clear like night and day. There was a lot of ambiguity. So, the law says that I should get the favorable decision in case of ambiguity.
“I think that it is definitely a personal service establishment. I didn’t get to say, but it is just like a funeral home. When somebody dies, they use that funeral home service – it’s a personal service – and then they go home. … (The) belongings of that person can be stored in that personal service establishment. And once that estate is cleared, can be removed, and then move on with their life. It is no different than a funeral home – or a bank, like my attorney said, where you store your cash for the time being, and then you use it and come back out.”
As to what comes next, Ghotra said, “I’m going to discuss that with my attorney and take it from there.”
The Lewiston Event Center.