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ApplicationAttachment to Appeal by Edward Ostberg This is an appeal by Edward Ostberg, the owner of the lot and building at 639 County Line Rd., Queensbury, New York, tax map lot number 290.-1-8 (the “Building”) from a decision made by Zoning Administrator Craig Brown on February 10, 2023 and on February 23, 2023. The Building is currently used for the designing and construction of trade show displays, museum exhibits, signage and other custom fabrications, and was previously used as office space. A description of the Building and the property on which it sits is attached hereto as Exhibit A. The Building was constructed on or about 1969. Mr. Ostberg has a tenant prepared to occupy the Building and such tenant is seeking to operate a microbrewery pursuant to the preliminary plan attached hereto as Exhibit B (the “Plan”). The zone in which the Building sits is a Commercial Light Industrial (“CLI”) district, as defined in Section 179- 3-040C(1) of the Code of the Town of Queensbury (the “Town Code”), attached hereto as Exhibit C. The owner of the Building, through his agent, Erik Sandblom, P.E., held preliminary discussions with Mr. Brown on plans to renovate the pre-existing Building into a microbrewery. In such discussions, Mr. Brown stated by e-mail to Mr. Sandblom on February 10, 2023, and again on February 23, 2023, that no microbrewery, as defined in Section 179-2-010 of the Town Code (the “Town Code Zoning Definitions” attached hereto as Exhibit D), would be allowed in a CLI district without a use variance or a zoning amendment. The e-mail determinations that are being appealed from are attached hereto as Exhibit E (the “Determination”). Grounds for Appeal The Microbrewery, As Proposed, Is An Allowed Use In The CLI District. The planned microbrewery would include Light Manufacturing, Retail, and Food Service aspects, all of which are allowed uses in the CLI district. Beer would be brewed on the premises, for both on and off-premises consumption, which would be a Light Manufacturing use. Both food and beer would be served in the Food Service part of the Building. Related merchandise would also be sold, as a Retail use. The Food Service and Retail aspects of the operation would service both employees of other businesses in the surrounding CLI district and the general public. Some of the beer manufactured in the Building would be sold to other licensed establishments and also sold by the tenant at retail, at another location. Per Section 179-3-040C(1)(a) of the Town Code, the allowed uses for a CLI district are set forth on Table 4 of the chapter (the “Industrial Use Table”, attached hereto as Exhibit F). One such use included on the Industrial Use Table is “Light Manufacturing” which, per the Town Code Zoning Definitions, includes “any operation which assembles, improves, treats, compounds, or packages goods or materials in a manner which does not create a noticeable amount of noise, dust, odor, smoke, glare or vibration outside of the Building in which the activity takes place.” Such a classification would be appropriate for the potential tenant’s proposed production pursuant to the Plan and aligns with the Building Code of New York State’s “Low-hazard factory industrial, Group F-2.” Such a classification, per the Building Code of New York State (the “Building Code”), includes the fabrication or manufacturing of beverages “up to and including 16-percent alcohol content” is classified under “low-hazard factory industrial” (see Section 306.3 of the Building Code, attached hereto as Exhibit G), which is consistent with the tenant’s proposed use of the Building pursuant to the Plan. Additionally, the Industrial Use Table lists “Retail” which, per the Town Code Zoning Definitions, includes the offering, for a fee, of goods, services, and merchandise to the general public, as an allowed use in the CLI district. This would include retail sales of beer for off-premises consumption and/or sales of various promotional merchandise, including, but not limited to, glassware, shirts, jackets, hats, and similar items. 2 Finally, the Industrial Use Table lists “Food Service” which, per the Town Code Zoning Definitions, includes preparing and serving meals for eat-in or take-out customers, as an allowed use in the CLI district. The operation would be consistent with the requirement of the Town Code Zoning Definitions that the “food service component must be the primary use in the building...” because the beer being served would be prepared onsite, and sold onsite, along with the food, which would be prepared offsite and sold on site.” All three of these uses are allowed uses in the CLI district, subject to site plan review by the Planning Board. Footnote 4 to the Industrial Use Table states that “commercial uses… are allowed with certain restrictions as to size and location.” Section 179-3-040C(1)(a) of the Town Code also states that retail and services areas are allowed in the CLI district, as “permitted infill to serve the area”. Also, Section 179-3-040C(1)(c) of the Town Code states that “retail uses (including but not limited to business, personal and food service uses)” are allowed uses in this district. In all of the industrial zoning districts, Section 179-7-080A(1)(c) of the Town Code, attached here as Exhibit H, allows commercial uses that are related to an adjacent industrial use, such as the selling of products made at the factory, without limitations as to where on the lot they may be. The Microbrewery, As Proposed, Is Not Prohibited In The CLI District Just Because Microbreweries Are Also Expressly Allowed In Certain Commercial Districts Mr. Brown’s Determination of the Town Code was that because a “Microbrewery”, as defined in the Town Code Zoning Definitions, is listed as an allowed use in certain commercial districts but not in the CLI district, it is not an allowed use in the CLI district. This ruling did not take into account the fact that all aspects of the plans for the Building are allowed uses in the CLI district, as discussed above. The Determination also does not take into account the history of the adoption of the definition of “Microbrewery”, which does not reveal any intent to disallow such uses in the CLI district. Per the Town Code’s “Summary of Allowed Uses in Commercial Districts” (the “Commercial Use Table”, attached hereto as Exhibit I), a “Microbrewery” is an allowed use in some, but not all, commercial districts. The Town Code Zoning Definitions define “Microbrewery” as follows: MICROBREWERY A facility licensed by the New York State Liquor Authority to produce or brew up to 60,000 barrels of beer annually and to conduct such other activities as are permitted under a microbrewery license and/or such additional permits and licenses as may be granted by the Liquor Authority to the holder of the microbrewery license. In addition, other activities which are ancillary and subordinate to beer brewing and production operations shall be permitted. Such activities shall include, but shall not be limited to, offering tours of the facility to the public; offering beer tastings; retail sales of beer for off-premises and/or on- premises consumption (subject to receipt of any licenses or permits required by the Liquor Authority); and/or sales of various promotional merchandise, including but not limited to shirts, jackets, caps, clocks, signs and similar items, for the purpose of fostering awareness of the beer brewed on the premises and/or promoting the brewery, the Town of Queensbury and the surrounding area and/or other beers brewed in New York State. Although the proposed use of the Building does come within this definition, as discussed above, it also comes within the combined definitions of Light Manufacturing, Retail, and Food Service , and within the types of commercial uses that are allowed in conjunction with a Light Manufacturing use. 3 The definition of Microbrewery was added to the Town Code by Local Law 3 of 2013. A copy of that local law and related documents are attached hereto as Exhibit J. Prior to that time there were no breweries in the Town of Queensbury. The minutes of the public hearing held by the Town Board on April 1, 2013, prior to the adoption of Local Law 3 show that it was adopted in response to a proposal by Davidson Brothers to convert the former movie theater on Route 9, which was in a commercial zoning district, to a microbrewery. A copy of those minutes is attached hereto as Exhibit K. In April 2013 the Town Board was entirely focused on the Davidson Brothers proposal in that commercial district. At no point in the public hearing did the Board discuss whether or not microbreweries were prohibited in industrial districts. However, because microbreweries have an industrial/manufacturing aspect to them, and because manufacturing is not an allowed use in the commercial districts of the Town, the Davidson Brothers project would not have been allowed in that commercial district without the passage of Local Law 3. [Subsequently, as shown by the Commercial Use Table, Microbreweries were added by other local laws as allowed uses in other commercial districts in the Town.] A “Microbrewery” is just one type of Light Manufacturing use. Given the mixed nature of such businesses, the Town Board has seen fit to allow them in certain commercial districts. Other types of Light Manufacturing were not allowed uses in commercial districts at that time (see Exhibit J, pages 4-6) and still are not allowed uses there (see Exhibit I). That does not preclude such a Light Manufacturing use from also being an allowed use in the CLI district. No such Town Code amendment would have been needed in 2013 if the Davidson Brothers project had been proposed for the CLI district. Conclusion We request that you overturn the Zoning Administrator’s Determination and that you interpret the Town Code to allow for a microbrewery that includes Light Manufacturing, Retail, and Food Service uses to be an allowed use in the CLI district under Town Code Section 179-3-040C(1) and the definitions in Section 179-2-010. Please advise if you need anything further to review this request.