The Peru Gazette

By John T. Ryan

Peru – LALO Properties, LLC owned by Matt Murphy of Peru would like to purchase property owned by Rulfs Orchard LLC (the former location of Apple Blossom Florist) at 25 Pleasant Street for use as a temperature controlled self-storage facility. Peru’s zoning law permits self-storage facilities in some zoning districts but not in the district where the property in question is located. Murphy’s purchase is contingent on the Zoning Board’s approval of a hardship use variance. At its Wednesday, February 19th meeting the Peru Zoning Board of Appeals (ZBA) denied a variance for the property by a vote of 3 to 1.

Obtaining a hardship use variance is purposely difficult by law. According to NYS Department of State guidelines, “As the use variance grants permission to the owner to do what the use regulations prohibit, this power of the board of appeals must be exercised very carefully lest there be serious conflict with the overall zoning scheme for the community.”

Four requirements must be satisfied to grant a hardship use variance. “In order to grant a variance upon the ground of unnecessary hardship, the record must show that (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created.”

After reviewing submitted documentation including a petition indicating ten neighbors have no objection to the proposed use and comments by the applicant’s attorney Tom Murnane, real estate appraiser Derick Rosenbaum and realtor Tina Covey, the Board concluded that the first three use variance requirements had been satisfied. Three of the four members did not reach the same conclusion on the fourth requirement, a self-created hardship.

Board member Sean Lukas noted that the property has been on the market for several years; therefore, he didn’t believe the hardship was self-created. Board members James Falvo, Terry Aubin and James Bosley disagreed.

Jim Falvo said it appeared that Rulfs was requesting continuation of a non-conforming use. He said, “Rulfs knew it was operating as a non-conforming use to begin with.” Later he said, “I struggle with the owner’s decision to change the use of the property.”

James Bosley said a 2013 change in Peru’s Zoning Law lessened zoning restrictions on the property. He suggested if the Town wants self-storage facilities at this location changing the zoning law would be the proper remedy. Terry Aubin said he wasn’t convinced that the hardship wasn’t self-created.

The property in question has been a business location for decades, first as a farm equipment dealership and then as a flower shop. When zoning was enacted the property’s zoning district changed to one permitting single-family residential plus several permitted and special permitted uses. Rulfs purchased Apple Blossom Florist in 2012 when it was operating as a non-conforming use permitted by virtue of the zoning law’s grandfather clause.

No business has been conducted at 25 Pleasant St. since September 2016 when Rulfs moved the flower shop to its new farm stand on the Bear Swamp Rd. According to zoning regulations if a non-conforming use property is idle for more than 12 months the property loses its grandfathered status. The property has been listed for sale for almost four years. About 12 months ago the Board approved Rulf’s request for an area variance permitting the property’s use as a two-apartment building.

Attorney Tom Murnane contended Peru’s zoning law has become more restrictive, not less restrictive, since Rulfs purchased the property. He also cited a legal case where he said the NYS Supreme Court Appellate Division ruled it was proper to take changed circumstances into consideration. Murnane contended that over the course of time marketing flowers has changed noting that several small local flower shops have closed and flowers are being sold at grocery stores and online. He stated, “When you look at a period of 6 or 9 years and realize it isn’t profitable anymore I don’t think it’s a self-created hardship.” Town Attorney Matt Favro was not able to attend Wednesday’s meeting; therefore, the Board did not have the benefit of his legal knowledge prior to voting.

Asked for his reaction to the Board’s decision Jon Rulfs stated, “I’m disappointed. This is the first offer we’ve had in four years.”

Rulfs Orchard has 120 days to appeal the Board’s decision to the New York Supreme Court. As of Friday, February 21st, Jon Rulfs had not decided if he would appeal.