City regulations specifically prohibit enlargement of structures containing nonconforming uses, but the Xtrafuel gas station at Main Street and Fishkill Avenue is expanding nevertheless.
The site plan is still up for public discussion. However, the building inspector has interpreted the zoning in a way that would allow the owners to add an additional 200 square feet of space. The logic used not only stretches the boundaries of reality, but it goes against the very essence of the new Central Main Street district zoning objectives, as well as the letter of the law. Ironically, when the zoning was passed in 2013, the inspector was one of its biggest cheerleaders.
First, as we noted in a previous post about the leaking gas tanks at this site, gasoline filling stations are not permitted in the new Central Main Street zone in which this building is located. In fact, along with drive-through businesses, gas stations are expressly forbidden. Also noted was the fact that, as is customary, nonconforming uses that existed prior to the new code being implemented are allowed to continue operating. Of course, in the long run, the city would like all structures and land uses to conform to the various codes. And in fact, that is one of the general purposes listed in Article I of the codes:
To bring about the gradual conformity of the uses of land and buildings throughout the city through the comprehensive zoning plan set forth in this chapter…
The city has put in a number of clauses that encourage this gradual conformity to take place. For instance:
The nonconforming use of a building or structure may be continued, provided that: (1) Such building or structure shall not be enlarged or extended unless the use therein is changed to a conforming use.
For many good reasons, the community has decided it doesn’t want gas stations in the middle of town any longer, and by imposing this restriction, it hopes to hasten a change in use. So when Xtrafuel (applicant listed as Noorani Holdings, LLC, 145 Fishkill Avenue) recently came before the planning board with a site plan that included an enlargement, it was a clear cut opportunity to apply the new law. And in fact, during its review, the city’s planning consultants, Fredrick P. Clark Associates pointed this out. Here is what they said in their report, dated January 9, four days prior to the building inspector’s ruling:
Analysis and Recommendations
1. The plans note that the site is located within the CB Central Business District. However, the site is located within the CMS Central Main Street District in which gasoline filling stations are a prohibited use. Section 223.10.C(1) of the Zoning Law states that the existing, nonconforming use of the building may be continued, provided that the building is not enlarged or extended, unless the use is changed to a conforming use. Therefore, the building cannot be enlarged given the existing, nonconforming use.
Emphasis added, but obviously no equivocation from our planning consultants, no hesitancy in that language. And just to bolster the idea that the city is using an economic stick to help phase out nonconforming uses, here is another clause that speaks to this:
Such nonconforming building shall not be structurally altered during its life to an extent greater than 25% of its fair market value, as determined by the City Tax Assessor…
Obviously, in addition to prohibiting expansion, the city does not want a nonconforming use to undergo the type of gut renovations that would allow it to increase its worth or ability to continue the nonconforming use, thus allowing it to further thrive into the future. No brainer, this one’s in the bag.
And yet. The building inspector has determined that the cinderblock building could be considered a separate, conforming business—a mini mart—and has therefore decided to let the owner have his extra square footage. Here is the building inspector telling the planning board of his decision (note that I do not say explaining his decision, because there is no explanation for it):
The pertinent footage starts at 53:00 and ends at 1:00
My mind is boggled, on so many levels. A corporate lawyer trying to find a loophole for a multinational corporation might try something like this, but a public official charged with representing and protecting the community’s interest? Mr. Dexter calls it a “little bit of a difficult call.” I would respectfully disagree strongly, and say that the building inspector was off his game. In fact, in this instance, no interpretation of the zoning is actually needed. (Ideally, codes should be written so interpretation is not necessary.)
Quacks Like a Duck,
Or, A Little Bit Pregnant
First of all, if it smells like gas, leaks gas, and sells gas, it’s a gasoline station. In the last 25 years, how many gas stations in the United States have been constructed without a mini mart component? Long gone are the days when you pulled up to a “gasoline filling station” and were greeted by a smiling attendant who came out from under a car wiping his greasy hands on his overalls and started to clean your windshield and check your oil. Beer. lotto, and cigarette sales are de facto included in the definition of filling station these days. To claim otherwise, that this is some unique exception, is disingenuous.
When a customer fills up her tank and goes into the building to pay retail for the gas, a nonconforming use is being conducted in that structure. It does not matter what other transactions may take place (although judging from the size of the new underground tanks that just went in, the cash register is ringing up a lot more gas sales by volume than beer or milk). Regardless, it is irrelevant what percentage of the sales are “non-conforming.” You can’t be a little bit pregnant or a little bit non-conforming. There is no justification for making a determination like this, it’s wrong.
Obviously this decision has further ramifications. Now the other two gas stations in this district are free to expand, since those entities, like just about every gas station now in America, sell chips, too. All the drive-through Suds car wash has to do is install a gumball machine and they can magically transform into that mystical creature, conforming/nonconforming. Dave’s Auto next to Homespun? Section off part of the garage and sell cupcakes and voila! Dave’s can exist into eternity.
Why bother writing a new zoning code if we’re going to ignore it? You can’t section off parts of a building, or pieces of a parcel, and claim some of it is conforming and some of it isn’t. That is spot zoning on steriods.
The goal is not to stretch the imagination to the breaking point in order to find some purported loophole for a private concern, the goal is “to bring about the gradual conformity of the uses of land and buildings” into compliance with the wishes of the community.
As the building inspector knows, the Central Main Street district was designed as a form-based code, meaning that the setbacks and the relationship of the buildings to the street is of foremost importance. In other words, not only is the letter of the law being circumvented here regarding nonconforming use, the interpretation is also in direct opposition to the spirit of the new code. The Xtrafuel cinderblock structure is out of compliance in every dimension possible. Why contort the situation in order to promote and succor something that, from every conceivable standpoint, is not allowed? A use, as well as a dimensional layout that, through its elected officials, the community has determined goes against the well-being of the economic, social, physical, and aesthetic aspects of the city, and is actively trying to phase out?
Not that a plan B. should be necessary here, but the expansion also appears to violate this clause:
Nonconformity other than use. A building that is conforming in use but does not conform to the height, yard, lot area, lot dimension, land coverage, off-street parking, loading, minimum house size or similar dimensional requirements of this chapter shall not be considered to be nonconforming within the meaning of Subsections C, F and H. No permit shall be issued that will result in the increase of any such nonconformities, except that each side yard of the aforementioned lots may be reduced by one inch for every foot that such lot is less than the minimum width required by this chapter.
Since the height requirement in the CMS district is minimum two stories, issuing a permit to increase the footprint would increase the nonconformity by increasing the square footage of the building that is out of height compliance. (Although the Central Main Street district allows one-story non-conforming businesses to expand, it is only under the condition that all other dimensions be in compliance, which is certainly not the case here.)
Some may wonder why this is so important. After all, they are only asking for a 10′ x 20′ walk-in cooler. But if moving all the cooler storage into the new space gives them 200 square feet of additional retail, that is a significant boon. And because the gas station suppresses the kind of walkable streetscape that enhances economic vitality, the expansion of this enterprise comes at the expense of the surrounding businesses, businesses and structures that are in compliance and do not destroy the streetscape.
As I wrote in a previous post:
Put another way, the gas station is making money at the expense of the surrounding businesses. If you have doubts about this, think of how often you see pedestrians or cyclists along the swath of Route 9 in Wappingers that consists of one strip plaza attached to the next. The three filling stations on Main are little pieces of those strips spliced into the center of our town, and the curb cuts, building setbacks, and deference to the automobile they demand definitely impacts walkability. Less walkability for a non-strip mall business means less revenue.
If Beacon is to truly become a walkable, more economically viable city, as per the comprehensive plan and the new zoning codes, it must eventually phase out the huge disruptions created by the gas stations. Right now about the only tool we have to accomplish this goal is to enforce the zoning clauses that restrict expansion of non-conforming uses. It is in fact why the code was written as it is.
It is paying close attention to these seemingly small matters that adds up over time to achieve the goal of gradual conformity. Here is a golden opportunity to potentially make some headway at a significant site on Main Street. There is no need to interpret this section of the zoning code. Both the particulars and the general intent are clear, and the regulation forbidding expansion of a nonconforming use should be enforced.
Sidebar: Shrubberies and Parking Spots
The applicant is asking that the planning board make a determination to count the spaces in front of the pumps as parking space. And why would the board want to do that, exactly? How would this help it move the city toward conformity, one of the planning board’s most important directives?
Regarding the landscaping requirements in the new CMS district, buildings in this zone are required to dedicate 10 percent of the lot area to landscaping, unless such landscaping is “accessible to the public,” in which case the requirement is lowered to 5 percent. (The current site plan as submitted shows 2 percent landscaping.)
However, according to the zoning codes, wherever greater open spaces are called for, that becomes the section of the code adhered to. So while 10 percent is required on buildings fronting Main Street, buildings fronting on other streets require 15 percent of the area to be landscaped, and there does not appear to be anything about reducing this via access to the public. Since Xtrafuel occupies a corner lot , this parcel would require 15 percent landscaping: ( The station has two fronts. “Front” in code language does not mean the street the building faces, it refers to any portions of the lot that face a street. For what it’s worth, the gas station faces Fishkill Avenue, and the address is 145 Fishkill Avenue. )
Where this chapter requires a greater width or size of yards or other open spaces or a lower height of building or a fewer number of stories or a greater percentage of lot area to be left unoccupied, or otherwise imposes greater restrictions than required by any other statute, bylaw, ordinance or regulation, the provisions of this chapter shall govern. Where the provisions of any other statute, bylaw, ordinance or regulation require a greater width or size of yards or other open spaces or a lower height of building or a fewer number of stories or a greater percentage of lot area to be left unoccupied, or otherwise impose greater restrictions than are required by this chapter, the provisions of such statute, bylaw, ordinance or regulation shall govern.
As also noted in a previous article, if the community should ever decide to get truly serious, other codes could be applied to this site. For instance, the Environmental Quality Review code, mentioned in a previous post. Or this, section 223-33, Toxic or Noxious matter:
No use shall be permitted which will cause any dissemination whatsoever of toxic or noxious matter outside the building in which the use is conducted.
According to the Environmental Assessment Form submitted by the applicant, the site has undergone remediation prior to the current leaking underground storage tank. The form is dated December 20, before the recent leakage was discovered and “remediated”. So that would be twice now that the site has caused a dissemination of “toxic or noxious matter outside the building in which the use is conducted.”
Judging from the thousands of cases involving gas stations around the country, this is not an atypical or unexpected outcome for this use–in fact an entire industry has built up around it, including the company that “remediated” the latest toxic release, American Petroleum.
The way I read that clause, the city has justification to shut down all the gas stations in town. But hey, maybe it depends on how one interprets the meaning of “whatsoever.” And, c’mon, let’s be real, we don’t actually mean it when we write in certain codes—it’s an environmental law, for god’s sake. Window dressing.
No matter how you slice it, whether through leaking tanks or gas dribbling from a nozzle or gas fumes in the air, a gas station disseminates toxic and noxious matter. There are less problematic locations for gas stations than the middle of the city, and the codes are written to reflect that. Let’s use them, shall we?