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City of Rochester

City Hall Room 308A, 30 Church Street


Rochester, New York 14614-1290
www.cityofrochester.gov

NEIGHBORHOOD &
BUSINESS DEVELOPMENT
INTRODUCTORY NO.

Lovely A. Warren
Mayor

3
t
j

October22, 2015

TO THE COUNCIL
Ladies and Gentlemen:

Re:

Zoning Text Amendments Retail Sales


and Service, and Definitions

Transmitted herewith for your approval is legislation amending Chapter 120, the Zoning Code of
the City of Rochester, relating to the following sections: C-i Neighborhood Center District, 0-B
Overlay-Boutique, and Retail Sales and Service High-Impact definition.
This legislation will:
1. Add language to the C-i and 0-B districts identifying that there are no hours of operation
restrictions for bars and restaurants which hold a New York State Alcoholic Beverage
Control License for the sale of on-premise items; and
2. Amend the definition of Retail Sales and Service by deleting alcoholic beverages from the
definitions of High Impact, Specialty, and Full-Line Food Store.
This amendment would continue all the current restrictions imposed on High Impact retail, but
would no longer apply to businesses that sell only alcohol and do not sell tobacco, lottery, firearms
or secondhand goods or other items covered in the current High Impact definition. Those
businesses that sell tobacco, lottery, firearms or secondhand goods or other items covered in the
current High Impact definition would continue to be covered by all the High Impact rules.
The City Planning Commission held an informational meeting on the proposed amendments on
Monday, October 19, 2015. Four people spoke in support of the amendments; and one person
spoke in opposition. By a vote of 6-0, the Planning Commission recommended approval.
A public hearing is required for the Zoning Text Amendments.
Respectfully submitted,

Lovely A. Warren
Mayor

Phone: 585.426.7046

Fax: 585.428.6059

TTY: 585.428.6054

EEO/ADA Employer

MINUTES
ZONING TEXT AMENDMENT
T-02-1 5-16
CITY PLANNING COMMISSION INFORMATIONAL MEETING (10/19/2015)
Page 1 of 3
APPLICANT:

Mayor, City of Rochester

PURPOSE:

To amend the Zoning Code of the City of Rochester by adding


language to the C-i (Neighborhood Center District) and 0-B
(Overlay Boutique District) that removes the hours of operation
restrictions for bars and restaurants holding a NYS ABC law
license; and by amending the definitions of retail sales and
service by deleting alcoholic beverages from the definitions of
High Impact, Specialty and Full-Line retail uses.

APPLICANT AND/OR REPRESENTATIVE PRESENTATION:


Good evening, Im Tom Warth from the Citys Law Department. Im here to explain
the proposed amendment. These text amendments arise out of two lawsuits and the
governing ABC Law. The first being a lawsuit involving Obsessions Bar where State
Court held that hours could not be regulated by the City because the Alcohol Beverage
Control Law (ABC) with its 2:00 AM closing hours in our county, governs. So part of the
text amendments in Overlay Boutique and C-i Districts is to correct that issue. So if a
bar or restaurant has an alcohol license, we cannot regulate the hours.
The second issue arises out of the definition of high impact use, in particular with regard
to retail establishments that have alcohol licenses to sell beer or wine coolers offpremises. And we had a lawsuit where a deli that was a low impact use until it obtained
an alcohol license to sell beer then became high impact requiring a special permit in a
C-2 District. Subsequent to that lawsuit and the Law Departments research of the law,
we found case law holding that you cannot forbid a retail establishment that was
otherwise permissible merely because it received an alcohol license. Again, the
reasoning behind that is that local laws cannot pre-empt the ABC Law of NY State.
That is why you have these amendments in front of you.
Questions from the Members:
S. Rebholz: Just to clarify, the reason these text amendments are being considered
specifically are because of these court cases. So is there a timeline that the City is
under because there are so many aspects of the Citys Zoning Code that use hours of
operation limitations as mitigation and that tool will now be gone with this, It feels like
the kind of thing that ought to be looked at more broadly and holistically.
Tom Warth: There is a quick timeline on this in that we as we are compelled by law to
comply. With the high impact portion, we have a pending lawsuit that if we were to
continue to litigate it, we would likely lose and then responsible for attorneys fees
and/or lost revenue. So with regard to both of these, it would have been prudent ot
have had these things yesterday.

/71
MINUTES
ZONING TEXT AMENDMENT
T-02-1 5-16
CITY PLANNING COMMISSION INFORMATIONAL MEETING (10/19/2015)
Page 2 of 3
Speakers in Favor:
David AhI, representing the NYS Coalition of Property Owners and Businesses:
As the Law Department told you, the first portion this legislation is mandated by the
Supreme Courts Decision in the Obsessions Bar and Grill vs. the Zoning Board of
Appeals of the City of Rochester. And we encourage you to enact that provision.
If you go down Plymouth Avenue you will find a little place called Deli Sandros, owned
by Anthony Delisandro. Its been operating legally for a number of years, it employs
about 10 people. They also sell beer, because the Corporation Counsel agreed not to
enforce this law while Mr. Delisandros lawsuit was pending. What you will find there is
the fact that this establishment is selling beer hasnt changed it one iota, nor will it,
which is why we support the changes that remove alcohol from the definition of high
impact businesses. We respectfully submit, as you pointed out, that this doesnt go far
enough. Hours of operation are not an appropriate subject of zoning. Zoning deals with
the use of land, not with the details of the operation of a business. Once a zoning
ordinance permits retail sales and service on a piece of land, it cant dictate what items
it can or cannot sell, what hours they can be open, ect. A person who is licensed to sell
alcoholic beverages cannot be deprived of the benefit of that licensed based on a
Zoning Ordinance. Thats all I have prepared. Thank you.
Anthony Delisandro, owner and operator of Deli Sandros: I dont really understand
all of the legal jargon on the amendment but I just wanted to say my two cents. I
understand that the regulations were meant to try and curb the criminal behavior that is
sometimes associated with these items. But I think if you relate these items to
yourselves, most of the people in this room have probably purchased alcohol, lottery
tickets or tobacco within the last week. And I assume, too, that most of you are not
criminals. So to pass legislation that is meant to curb the behavior of a few ultimately
impacts the majority of good people. I just encourage you to take those things into
account. Its not fair to regulate an entire population to regulate the misbehavior of a
few. Thats all I have to say.
Mary Delisandro, President of the NYS Coalition of Property Owners: and a
member of our new neighborhood association, the Upper S. Plymouth Neighborhood
Association that brings a positive voice to our area. I think this amendment is a great
start. I think our City should adhere to the same laws that every City in NYS has to.
Not all businesses are bad and have problems. Deli Sandros has had a very positive
impact on our area. Thank you.
N

MINUTES
ZONING TEXT AMENDMENT
T-02-1 5-16
CITY PLANNING COMMISSION INFORMATIONAL MEETING (1 0/1 9/201 5)
Page 3 of 3
Sneakers in Opposition:
John Lembach, Vice-President, Park-Meigs Neighborhood Association: We would
like to submit a letter. Our Board voted unanimously to oppose this legislation. We do
realize that we are making these changes as a result of a court decision, but we are
very disappointed that the city has made no effort in these couple of years to come up
with companion legislation to undo the bad effects of whats going on here. The second
piece of paper I gave to you is a map of the liquor licenses in most of the city, except for
ridge Road and Collegetown, and this explains why Park-Meigs is opposed to this
legislation. We have the highest number of any neighborhood in the City for on-premise
consumption licenses. We are severely impacted by the conduct of bars and
convenience stores and so forth. We are really disappointed that the Mayors Office
has not directed companion legislation to go along with this. We have seen reduced
bad behaviors in bars and convenience stores within the past 2 years since this
legislation has taken effect.
NYS issues these licenses without consulting
neighborhoods. So I dont know what you can do about it, but we will plead our case
and protest anyway. Do we have zoning laws or dont we? Thank you.
Rebuttal:
Tom Warth: All of those comments, pro and con, the Planning Commission will take
under advisement. Thank you.
HEARING ENDS

L.I
CITY PLANNING COMMISSION
RECOMMENDATION
TEXT AMENDMENT
Re:

Case No:

To amend the Zoning Code of the City of


Rochester by adding language to the C-i
(Neighborhood Center District) and 0-B
(Overlay Boutique District) that removes
the hours of operation restrictions for
bars and restaurants holding a NYS ABC
law license; and by amending the
definitions of retail sales and service by
deleting alcoholic beverages from the
definitions of High Impact, Specialty and
Full-Line retail uses.

T-03-1 5-16

Resolution:

RESOLVED, the City Planning Commission RECOMMENDS that the Zoning Code of
the City of Rochester be amended as summarized above.
Action:

Recommend Approval

Filing date:

October 19, 2015

Record of Vote:

6-0-0

D. Watson
S. Rebholz
H. Hogan
T. Bruce
S. Mayer
A. Richards
E. Marlin

Recommend
Recommend
Recommend
Recommend
Recommend
Recommend
Absent

Approval
Approval
Approval
Approval
Approval
Approval

T-03-1 5-16
High-Impact and Hours related to the ABC Law
Page 2
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 the
Comprehensive Plan.
The amendments are necessary to preserve the legitimacy of the City Zoning
Code, an essential element of the Comprehensive Plan. The amendments are
legally necessary to comply with state court rulings that interpret the State Alcohol
Beverage Control Law as preempting some aspects of the Citys zoning authority
over establishments that have been issued licenses by the State Liquor Authority.
B. The proposed amendment is compatible with the present zoning and
conforming uses of nearby property (ies) and with the character of the
neighborhood:
From the hearing testimony and their own experience and analysis, the Planning
Commission members conclude that amendments will create additional instances
where bars, restaurants and stores with liquor licenses will be allowed to operate in
a manner that is incompatible with nearby properties and the neighborhood
character, particularly with regard to bars and restaurants being allowed to remain
open until 2:30 a.m. in C-i and Overlay-Boutique areas adjacent to residential
properties and in regulating convenience stores selling beer and wine coolers
(without tobacco and lottery) as if they are low-impact retail establishments.
However, there is no choice because the amendments are mandated by State
courts interpretation of the preemptive effect of the State Alcoholic Beverage
Control Law.
Therefore, the Commission recommends that the Council and Administration
immediately initiate a review of the Zoning Code to determine what additional
amendments are necessary to preserve neighborhood character and the
compatibility of mixed uses in light of the State-mandated amendments contained
herein. The Commission members would welcome the opportunity to assist with
that review.
C. The property affected by the amendment is suitable for uses under the
proposed zoning:
The proposed legislation is a Zoning text amendment and is not directed toward
any specific property(ies).

Lj
T-03-1 5-16
High-Impact and Hours related to the ABC Law
Page 3
D. There are available public facilities, services and infrastructure suitable and
adequate for the uses allowed under the proposed amendment.
It is not anticipated that the proposed text amendment will have any effect on
public facilities, services and infrastructure, except that additional police and
zoning staff resources may be required to field neighbor complaints created by late
night bar and restaurant operations adjacent to residential areas and the possible
increase in the number of convenience stores carrying beer and wine coolers.

,.

ii

City of Rochester
Inter-Departmental Correspondence

To:

Mayor Lovely A. Warren

From:

Zina Lagonegro, Development Review Coordinator on behalf of the Rochester


Environmental Commission

Date:

October 16, 2015

Subject:

Zoning Text Amendments relating to NYS Alcohol Beverage Control Law

Following is the recommendation of the Rochester Environmental Commission in respon


se to
the referral submitted on October 8, 2015. This constitutes completion of the requirements
of
Section 48-6.1 of the City Code, and further processing of the application and environment
al
determination may now proceed.

CHAPTER 48 REFERRAL RECOMMENDATIONS


Project Name:
Applicant:
Project Description:

Zoning Text Amendments NYS ABC Law


Mayor of the City of Rochester
To amend the Zoning Code of the City of Rochester by adding language
to the C-i (Neighborhood Center District) and 0-B (Overlay Boutique
District) that removes the hours of operation restrictions for bars and
restaurants holding a NYS ABC license; and by amending the definitions
of retail sales and service by deleting alcoholic beverages from the
definitions of High Impact, Specialty and Full-Line retail uses.

Motion (Premo/Pospula)
Recommendation:
The Rochester Environmental Commission has determined that the Text
Amendments are not likely to create significant adverse impacts upon the
environment, and recommends that a negative declaration is issued. The
following recommendations are being provided for your consideration:
1.

To be consistent, Sections 120-34Q and 120-106B should be


worded the same. We recommend that cocktail lounge and tavern
be removed from 120-106B; and

2.

The definition for Retail Sales and Service, Full-Line Food Store
should be revised to reflect there are only two categories to choose
from:
Retail sales and service offering for sale a full selection of food
products, including at least a variety of fresh produce, and o4
offering for sale products from j more than one of the following
categories:
A. Tobacco.
...eerIwine coolerc.
G. B. Lottery.

4-k
Record of Vote:
Jonientz
Pospula
Zwahlen
Kuchman
McMullen
Premo
Schellinger

5-0
Yes
Yes
Absent
Absent
Yes
Yes
Yes

Date of Action:

October 15, 2015

TROUCTORY

3
Ordinance No.

Amending the Zoning Code, Chapter 120 of the Municipal Code with regard
to
permitted uses in C-i districts and 0-B districts, and with regard to the
definitions of retail sales and service
BE IT ORDAINED, by the Council of the City of Rochester as follows:
Section 1. Chapter 120 of the Municipal Code, as amended, is hereby further
amended by amending Section 120-34 Subsection 0, changing to R the denom
ination
of Subsection P, and adding new Subsections P, 0 and S as follows:
Article VI. C-I Neighborhood Center District

120-34. Permitted uses and structures.

The following uses are permitted in the C-i District when conducted entirely
within an
enclosed building, exceit as specifically provided otherwise:
0. Bare and cRestaurants, operating between the hours of 6:00 a.m. and 11:00
p.m.,
including accessory outdoor seating/assembly areas but excluding drive-through
facilities.
P. Restaurants licensed by New York State to sell alcoholic beverages for
on premises
consumption pursuant to the Alcoholic Beverage Control Law, including accessory
outdoor seating/assembly areas but excluding drive through facilities.
Q. Bars, including accessory outdoor seating/assembly areas.
R.Mixed uses, as listed in this section, not including industrial uses.
S. Where accessory outdoor seating/assembly areas are permitted, they shall
operate
only between the hours of 6 a.m. and 11:00 p.m.
Section 2. Chapter 120 of the Municipal Code, Zoning Code, as amended, is
hereby further amended by amending Section 120-1 05 Subsection B (13) as
follows:
Article XIV. 0-B Overlay Boutique District

120-1 05. Permitted uses.

The following uses and structures are permitted in the 0-B District in existing
structures
only. The initial conversion is subject to site plan approval in accordance with
the
provisions of 120-191:

B. Retail sales and services limited to the sale of the following items, operating
between
the hours of 6:00 a.m. and 11:00 p.m.:
(13) Restaurants limited to 650 square feet of net floor area but excluding drive-t
hrough
facilities. The hours restriction set forth in this subsection shall not aly to restaur
ants
licensed by New York State to sell alcoholic beverages for on premises consum
ption
pursuant to the Alcoholic Beverage Control Law.
Section 3. Chapter 120 of the Municipal Code, as amended, is hereby further
amended by amending Section 120-1 06 as follows:

120-106. Special permit uses.

The following uses are allowed as special permit uses in the 0-B District in existin
g
structures only:
A. Special permit uses allowed in the underlying district.
B. Bar, cocktail lounge and tavern, excluding dancing and entertainment, not exceed
ing
650 square feet of floor area devoted to customer seating and service, operati
ng
between the hourc of 6:00 p.m. and 11:00 p.m.
C. Restaurants, excluding dancing, entertainment and drive-through facilities,
cot
exceeding 650 square feet of net floor area devoted to customer seating and
service,
operating between the hours of 6:00 a.m. and 11:00 p.m., including outdoor
ceating/accombly areac.
D. Restaurants licensed by New York State to sell alcoholic beverages for on
premises
consumption pursuant to the Alcoholic Beverage Control Law, excluding
dancing,
entertainment and drive-through facilities, exceeding 650 sguare feet of net floor
area
devoted to customer seating and service.
jcceccory oQutdoor seating areas operating between the hours of 6:00 a.m.
and
11:00 p.m. that are acccessory to permitted uses or to specially permitted restaur
ants.
Section 4. Chapter 120 of the Municipal Code, as amended, is hereby further
amended by amending Section 120-208 to amend the definitions of Retail Sales
and
Service as follows:
RETAIL SALES AND SERVICE, HIGH-IMPACT
Retail sales and service, (excluding full-line food store), offering for sale any
product or service that is within one or more of the following three categories:
A. Requires an owner, operator or employee to obtain a City of Rochester

secondhand dealers license (excluding vehicle-related dealers);


B. Requires an owner, operator or employee to obtain any county or state
license or registration for tobacco, alcohol, boor, wine coolers, or lottery.and/or
a
federal firearms dealers license; or
C. Offering for sale tobacco, tobacco paraphernalia or smoking paraphernalia
,
including products that contain nicotine, liquid nicotine, vapors or inhalants and/or
involve the on-site inhaling or smoking of such products.
RETAIL SALES AND SERVICE, FULL-LINE FOOD STORE
Retail sales and service offering for sale a full selection of food products,
including at least a variety of fresh produce, and not offering for sale produc
ts
from more than one of the following categories:
A.Tobacco.
B. Beer/wine coolers.
G. Lottery.
RETAIL SALES AND SERVICE, HIGH-IMPACT
Retail sales and service offering for sale any product or corvice which roquiro
c an
owner, operator or employee to obtain a City of Roohoctor sooondhand doalor
c
license (excluding vehicle-rolated dealers); any county or state liconce or
registration for tobacco, beer, wine coolers, or lottery (excluding full line food
store); and/or a fodoral firearms dealers licence; or offering for sale tobacc
o,
tobacco paraphernalia or smoking paraphernalia, except not a full-line food
store.
RETAIL SALES AND SERVICE, LOW-IMPACT
Retail sales and service not meeting the definitions of high-impact retail sales
and service, specialty retail, or a full-line food store.
RETAIL SALES AND SERVICE, SPECIALTY
Low-impact retail sales and service, occupying less than 1,000 square feet,
offering for sale only specialized types of foods, products, or services,
including,
but not limited to, baked goods, candy, health food, antiques, fashion
accessories, sporting goods, art objects, art and craft supplies, books,
clothing,
decorative accessories, flowers and plants, handicrafts, jewelry, toys, special
ty
foods, meats, seafood, shoe repair, and frame shops, and excluding tattoo
parlors. No tobacco, beer/wine coolers, or lottery may be included in the
inventory of specialty retail sales and service.
Section 5. This ordinance shall take effect immediately.
Strikeout indicates deleted text, new text is underlined