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Interpretation: 01-02-03
Subject: Extension of hours of operation of a bar/restaurant
in a C-1 Zone.
Issue Date: January 22, 2003
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Situation Requiring Interpretation:
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Application to extend the hours of operation of a bar/restaurant
located in a C-1 Neighborhood Center District, beyond the hours of
6 AM to 11 PM.
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Question:
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What means of relief is available to extend the hours of operation
of bar/restaurant permitted and established under the 1975 Code, where
under the 2003 Code a bar/restaurant located in a C-1 District requires
a special permit and may only operate during the hours of 6 AM to
11PM?
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Facts:
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The bar/restaurant was located in a C-1 District prior to January
1, 2003 and operated between the hours of 6AM - 11PM. Under the 1975
Code this use was permitted as of right in the C-1 zone and a special
permit was required to extend the hours of operation.
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The subject property is located in a C-1 District under the
2003 Zoning Code. However, under the terms of the 2003 Code, bar/restaurants
are specially permitted uses in the C-1 neighborhood district when
operated between the hours of 6AM and 11PM. There is no special permit
provision to extend the hours of operation beyond 6AM - 11PM. A Use
Variance would be required to establish a new bar/restaurant operating
beyond the hours of 6AM - 11PM.
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Analysis:
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The subject use existed on the effective date of the 2003 Zoning
Code and hence does not have a special permit since it previously
operated as of right in the C-1 district under the 1975 Code.
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The definition of a nonconforming use is as follows:
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Any use lawfully being made of any land, building or
structure, including an accessory use on the effective date of this
Chapter, or any amendment to it rendering such use nonconforming,
which does not comply with all of the regulations of this Chapter,
or any amendment hereto, governing use for the zoning district in
which such land, building or structure is located.
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The use as it exists at this point in time does not
comply with all of the regulations.....governing use for the zoning
district in which such....building....is located . The fact
that the use preexisted the requirement for a special permit, although
otherwise conforming, puts it into the category of a nonconforming
use.
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Pursuant to Section 120-191B(4)(a) of the 2003 Zoning Code, the expansion of a legally existing nonconforming use requires an Area Variance.
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An extension of the hours of operation of a pre-existing nonconforming
bar/restaurant use in a residential district requires an Area Variance.
It would be inconsistent to require a Use Variance in a commercial
district but require an area variance in a residential district for
a similar extension of use. It would also be contrary to the goal
of controlling nonconforming uses to require a use variance which
would confer a permanent right to the use while the nonconforming
hours of operation extension by area variance maintains the nonconforming
status of the use.
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Determination:
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Therefore, an Area Variance to expand a nonconforming use is
required to extend the hours of operation for a bar/restaurant in
a C-1 District, which had existed as of right under the 1975 Code
but which is specially permitted under the 2003 Code.
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_________________________________
Arthur Ientilucci
Director of Zoning
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_________________________________
Date
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Interpretation: 01-03-04
Subject: Administrative adjustment authority to permit
chain link fencing in front yards
Issue Date: October 1, 2003
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Situation Requiring Interpretation:
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Application to permit front yard chain-link fencing by administrative
adjustment where the proposed fence exceeds the three-foot maximum
height by more than (10%.
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Question:
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In deciding on an administrative adjustment to permit chain-link
fencing in a front yard, can the Director of Zoning allow for a four-foot
height if the existing chain-link fencing on the frontage is four
feet high?
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Facts:
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Chain-link fencing is prohibited in front yards. Fence height
in front yards is limited to a maximum of three feet. The Zoning Board
of Appeals is authorized to hear and decide on variance applications
of these standards.
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The Director of Zoning has the authority to issue an administrative adjustment to permit chain link fencing in front yards of neighborhoods where there is a substantial amount of legally existing chain-link fencing on a frontage (§ 120-191A(4)(c)[5]) . The Director of Zoning has the authority to issue administrative adjustments relative to height deviations of up to 10%.
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Analysis:
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The allowance for an administrative process to allow for chain-link
fencing was in deference to those neighborhoods with frontages that
had a substantial amount of legally preexisting chain-link fencing,
typically four feet high, and where a three-foot high wooden or other
type of decorative fencing would be out of context.
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The intent of the Code then is to halt the proliferation of
chain-link fencing in front yards throughout the City while providing
a reasonable, less complex and less expensive process to waive the
requirements in areas where the existing context so dictates. Given
the intent of the Code and the fact that most preexisting front yard
chain-link fencing is four feet in height, the Director of Zoning
should be able to issue the administrative adjustment for a four-foot-high
chain-link fence in a front yard where it would be in context with
existing fencing, not only in material composition but in terms of
height as well.
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The alternative is to allow the chain-link fence by administrative
adjustment but then require the Zoning Board of Appeals to approve
the height through a variance application. This would make the process
lengthier, more cumbersome and more costly than a typical variance
application. This is contrary to the intent of the Code to permit
flexibility of process for contextual chain link fencing.
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Determination:
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The Director of Zoning, in approving an administrative adjustment
for front yard chain-link fencing, may permit a height in excess of
10% of the maximum allowed (three feet) where the existing, legally
built fencing in the area has been established at that height.
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October 1, 2003
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_________________________________
Arthur Ientilucci
Director of Zoning
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_________________________________
Date
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Interpretation: 01-05-06
Subject: Designated Buildings of Historic Value
Issue Date: November 8, 2005
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Question:
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What buildings are classified as Designated Buildings of Historic
Value pursuant to the Zoning Code definition in Section 120-208?
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Facts:
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The Zoning Code (§ 120-208) defines Designated Building of Historic Value as "a building that is listed in the City of Rochester's Historic Resources Survey that includes properties on the National Register or which are contributing properties in a national or local historic district as filed in the City Clerk's Office."
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Analysis:
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In 1986, while on contract with the City of Rochester, Mack
Consulting Associates completed a citywide Historic Resources Survey.
The survey includes the identification of all properties listed on
the National Register of Historic Places and those that appear to
meet the criteria for listing. The survey was prepared in accordance
with federal standards for locating and identifying historic properties
and the Secretary of the Interior's Standards and Guidelines
for Archaeology and Historic Preservation. This list was accepted
by the NYS Historic Preservation Office (SHPO) as the City of Rochester's
Historic Resources Inventory and incorporated it in its entirety into
the SHPO data base.
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The Mack Survey was updated in 2000 resulting in additional
properties being recommended for inclusion into the City of Rochester
Historic Resources Survey.
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Determination:
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The City of Rochester's Historic Resources Survey, as referenced in the definition of Designated Buildings of Historic Value per Section 120-208 of the Zoning Code, is comprised of all the properties listed in the Mack Survey together with the properties listed in the document entitled, "Historic Resources Survey 2000, Recommended Properties." These properties are therefore Designated Buildings of Historic Value. The Mack Survey and its update are filed with the City Clerk.
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11-8-05
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_________________________________
Arthur Ientilucci
Director of Zoning
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_________________________________
Date
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