The recent published statements of Geneseo Town Attorney Jim Coniglio that Geneseo’s PDD law was based on laws in place in Perinton and Onondaga led me back to our law. Though I’ve already read the law more times than I care to admit, I noticed something in the often arcane language of the law that I had not noticed before and that sent me on a search.
Right there in the beginning of the law, it states: “Planned Development Districts shall only be created in districts either permitting Residential Uses or in the Gateway Overlay District and shall be limited to those Use Classes previously permitted in the Zoning District for which the Planned Development District is proposed.”
Unlike the many other times I’ve read the law, this time I wondered what a “Use Class” was and what difference it might make. Please bear with me as I try to explain what I think I figured out.
The sentence quoted above says that PDD zoning (the type of zoning Newman needs to build its big box) is only allowed for projects in the same use class as those presently permitted (without PDD zoning) in the Gateway District. A Use Class, it turns out, is a set of parameters for allowable uses, such as industrial, single-family residential, multi-family residential, or commercial.
Here is where it starts to get complicated. The Gateway District is an amalgam of Use Classes. The parcel on which Newman’s project is proposed is in Use Class 22, titled “Limited Commercial, Light Industrial and Low-Intensity Office,” which is a combination of Use Classes 19 and 21.
Use Class 19 is exclusively “Low Intensity Office,” with a provision specifically excluding retail sales.
Use Class 21 is “Light Industrial/Limited Commercial.” Within this district, there are strict limits on retail businesses. These limits include the requirement that any such business obtain a special use permit, that it be conducted within a “completely enclosed building,” and that it not exceed 35,000 square feet in total area.
Those who have been following this saga are probably aware of the 35,000 square foot limit on retail buildings in the Gateway. This has always been the principle impediment to Newman’s and the Town’s plans to build Big Boxes and the principle reason why we Big Box opponents have been concerned about the PDD law from the beginning. The PDD law was created as a wolf in sheep’s clothing: a way to subvert square footage limitations without openly eliminating them.
The issue is whether the PDD law achieved that goal. I always assumed it had, until I looked closely at the use classes. Now I’m not so sure. My contention is this: Use Class 21, which is titled a “Limited Commercial” use class, has as part of its definition that retail buildings may not be larger than 35,000 square feet. That is what puts the “limited” in “limited commercial district.”
If this is true, then Newman’s proposal would seem to be at odds with the PDD law, in which case the PDD law wins. After all, the PDD law says that allowable projects “shall be limited to those use classes previously permitted in the zoning district for which the planned development district is proposed.” “Shall” is the word the law uses when it really means it. I don’t think this can be casually set aside or easily overruled.
My opponents will cite another provision in the PDD law to refute my argument. That provision allows the “set dimensional specifications elsewhere in the zoning regulations” to be set aside for projects given PDD status. The law never specifies what these dimensional specifications are, though elsewhere in the code they refer to building height, building setbacks from lot lines, greenspace requirements, and building size.
I don’t think this “set aside” provision trumps the “use class” provision. The size of the building is defined right into the use class and “shall” is serious language. Also, there are other dimensional specifications that could be set aside without offending this provision of the law, such as building height and setback requirements.
There are also other areas of the Town, in Use Class 4, for example, where there are no square footage limits. Newman’s project could be proposed there. However, I have come to the conclusion that it is not a permitted use in the Gateway, even with the PDD law.