May 13, 1997

MINUTES OF THE REGULAR MEETING OF THE TOWN OF ELLICOTT PLANNING BOARD HELD AT THE ADMINISTRATION BUILDING, 215 SOUTH WORK STREET, FALCONER, NY 14733 ON NOVEM= BER 12, 2008 AT 7:00 P.M.

PRESENT:= Chairman Dan Evans, Ga= ry Swanson, Ron Calanni, Phyllis Belin, Paul Shanahan, Steve =

= Peterson, Fred Santucci, Attorney William Wright, Code Enforcement Officer Randy

= Woodbury and Secretary Valerie Pierce

ABSENT: <= /span>None

Chairman Evans opened the meeting at 7:00 PM.

Motion made by Steve Peterson, seconded by Ron Calanni to approve the minutes of the September 10, 2008 meeting.

Carried. = &nb= sp; Ayes – 7 = &nb= sp; Noes – 0 = &nb= sp; Absent – 0

Chairman Evans opened the Public Hearing for New York RSA No. 3 Cellular Partnership d/b/a Veriz= on Wireless for site plan review for water issues at <= st1:address w:st=3D"on">500 Orchard Rd., W.E., Jamestown, NY.

Attorney Wright stated that when the Verizon tower was built they did not go through the site plan review. Mr. Evans said that concurrent to that there has been no maintenance. Mr. Wright said that was not neces= sarily true, the Zoning Board has identified these issues and there has been maintenance done. A modification was made to the storm water management pla= n in an attempt to try to resolve some of the issues. There was significant re-grading a= nd pipes were cleaned out.

Randy cleared up one i= ssue on the history. The site plan review criteria were established by local law # 1 of 1990 (June 6, 1990). T= he cell tower was being reviewed at the end of 1990 and the construction of the tower was 1991. He does not k= now why they did not go through the site plan review. Sam’s Club was anot= her project that was done at that time and they did go through site plan. Randy did have conversation with S= andra Brooks (Verizon) and she has records from the initial application where the attorneys for the applicant back then did a written review of Town code and felt there was no requirement to appear for site plan review. The history appears to be a little bit clouded.

Mr. Evans stated that Verizon had to go the Zoning Board for a Special Use Permit and they sent t= he applicant to the Planning Board because they had some issues on drainage. <= span style=3D'mso-spacerun:yes'> Dan said that from his viewpoint (he walked the property) there is a need for some type of drainage going onto a= ll the adjacent properties all the way down.&= nbsp; Mr. Evans said the maps he has were not very good and he did not thi= nk the Board could make a decision from the maps they received.

There is a Town engine= er that can be appointed by the Planning Board to review the site plan review.=

Jared Lusk, Nixon Peabody-Attorneys at Law, told the Planning Board that he had appeared before the Zoning Board of Appeals = on August 25, 2008. They agreed = that they would evaluate the drainage that was occurring on the site. On September 8, 2008 they conducte= d a site visit with Sandra Brooks (Verizon), David Weisenreder= , PE (Costich Engineering), Town Highway Superintendent Shellhouse, Mr. Woodbury and a Verizon construction manager. They reviewed and analyzed the site and prepared an engineering report to provide to the Town with the assessment of the drainage. They did provide several copies of the engineering report to Mr. Woodbury on September 24^th so everyone could review it before the meeting. The Board members did receive the copies. They sent the 2004 an= d 2008 reports to Mr. Tolman’s address at the Town. Mr. Tolman said he received the 20= 04 report in the mail today. Ran= dy said that the transmittal is not the delay in the review. Mr. Tolman had enough information = to give the Town an estimate for his cost to do the review. The cost has to be approved by the= Town Board. The Town Board referre= d it today to have the Planning Board decide who will pay the cost of Mr. Tolman’s bill. The esti= mate is $5,200. =

Mr. Weisenreder reviewed the drainage with the Board.

· They discussed what was done in 2004 R= 11; there were three existing cross culverts under the driveway – the cul= verts were crushed

· Before the pre-development there was 19 a= cres of waterless tributary to the Idlewood Drive and Hunt Road intersection <= /span>

· With the pipes being crushed there was another five acres of water being picked up by the driveway and being direc= ted to the Idlewood Drive area – the numbers are in the 2004 report

· They installed two additional culverts returning more to sheet flow – they also re-directed the water flow -= there was an addition of a rip-rap outlet to dissipate the energy of the discharge – also picked up the western most culvert and directed it to a channel –

· ultimately the whole tributary comes to an existing 2 ½’ by 3 ½’ box culvert, which is locat= ed about 225 feet west of Hun= t Rd.

· the storm water that comes to the intersection is the primary issue

· Mr. Weisenreder said that his calculations are based on pre-development and on = a 25 year storm – Dan Evans told him that everything that the Planning Boa= rd looks at is based on 100 year storm – if they were to do a detention pond it would be based on a one hundred year storm

· Mr. Tolman said that pipe sizing is diffe= rent and usually based on 10 to 25 year storm – Mr. Evans said that the 10 year is minimal

· The existing storm water system that is located on the west side of the road is 25 % undersized for a 10 year storm= and 45% undersized for a 25 year storm

· Mr. Weisenreder’s primary statement= is that under sizing of the storm sewer system is the primary cause of the flooding of storm water is currently coming across the Gerace’s prope= rty – there are a couple solutions to that – they are in the includ= ed in the drainage report – the first is the installation of a swale following the existing contours across both the Wright property and the Ger= ace property, which would eliminate the flow that would go to the existing storm sewer system at the intersection and by passing it therefore diverting the storm water around – the second option would be to replace the existi= ng 18” storm sewer that extents northerly on the west side of Idlewood a= nd westerly on the south side of Hunt Rd

· There is an existing gas main in the area that limits t= he amount of depth they can get – they propose using the 18” pipe - they will go to a 18” tall by 24” arch basically holding the sa= me depth but gives you the additional diameter or additional cross section area going to the arch pipe – there is a fairly steep and fairly flat sect= ion – they propose to raise the center portion of the flat so they have a constant slope from the southerly end to the northerly end – they could convey a 25= year storm by going to the arch pipe – and utilizing the same existing catch basins

· Mr. Evans asked what picks up the swale t= hat goes down from the tower from erosion on the lower end of the properties – they have done nothing to improve that – the water is coming right down the ravine – Mr. Weisenreder was told that the ravine did = not receive much flow – Mr. Wright said that was the natural water course that existed – Mr. Evans stated that water needs to be picked up and taken care of because it also flows into the lake – this is a natural water course off the tower property that creates more water that goes underneath Hunt Rd., which in turn goes down to Robinson – it creates problems down stream

· Mr. Weisenreder said that is something ne= w to him - looking at the calculations the difference between pre-development and post-development is very small – it they agreed to build a pond to ho= ld back the runoff it would be very very small – they only need to retain ½ CFS to get to pre-development calculations – The Town is loo= king for more than that ½ CSF detention

· Mr. Weisenreder said the drainage on the property has been maintained – when it was installed in 2004 or early 2005 everything was in pristine shape – early this year in August the= re were a couple minor areas that showrd in the report and need to be redefined – t= he loggers did mess up the stone in the rip-rap channels – Verizon Wirel= ess is willing to take care of that – Sandra Brooks stated that Verizon Wireless did no logging – it was done by Media One and the previous o= wner of the Wright property

· There is also a staging area that was use= d by the loggers on the north side of the road

Vince Gerace, 381 Hunt Rd., W.E., asked why there was no problem prior to the building of the tower. They have lived on Hunt Road s= ince 1987 and never had an issue until 1991 (when the tower was built). Mr. Gera= ce stated he did not know when the culvert pipes were installed.

Mr.Weisenreder said th= at the tower was built in 1991 and the storm piping was installed in 1992 or 1993. He thought the water pr= oblems could have been because of the culvert pipes being installed. The culvert p= ipes are undersized based on the calculations so that would contribute to the flooding.

Marilyn Gerace, 381 Hunt Rd., W.E., <= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;mso-bidi-font-weight:bo= ld'>stated they have had more damage in the last four years than ever. <= /b>

Mr. Evans said that the answer to Mr. Gerace’s question might be that the open swale could ha= ndle more than the pipe could handle. Mr. Weisenreder agreed. Rex Tolman said he did not think that the solution in 2004 would work. It is not the design, but the trash (that blocks off the culverts) and getting the water through the culverts. Rex said that these k= inds of culverts in that type of area have a problem with blockage. Mr. Weisenre= der said there was a trash rack on one and the Town took it off. Attorney Wright said that the Coun= ty might have taken it off. Sand= ra Brooks said Highway Shellhouse said that it was removed to clean the culver= t.

Ms. Brooks asked Mr. Tolman if increasing the size of the pipes would help the situation. Mr. Tolman stated he has not had t= ime to read the report and is in no position to give any conclusions tonight.

Mr. Tolman said in 2004 that “who was going to pay for this” was a problem because the actual impact of the road is not significant. It did not change the drainage that much. The culvert crossings a= re really problematic and he feels that is the root of the problems. There are ways to fix this but is = will cost some money. Sandra Brook= s said the drainage problems were not all contributed by their tower or road. Mr. Tolman said that the bottom line is that when the culverts get clogged up t= hat water is going down Idlewo= od Drive. Mr. Weisenreder said they were out= there the first week of September and all the culverts look real clear and real g= ood, so he does not know if anything has happened in the past two months that wo= uld have changed that. There are copies of the watershed maps in the report. Mr. Tolman said it is an accumulated affect because people are developing up ab= ove it. Mr. Weisenreder said that= the amount of imperious surface with this is not that great.

Attorney Wright asked = Mr. Tolman to clarify if the road changed the drainage area. Mr. Tolman said it did change the drainage area but there was not a lot of change in the run-off because it is such a small area. Mr. Tolman= said that there are two different things going on. One is what the development d= oes to the actual volume of run-off which is pretty minor. The second is where the run-off go= es and how it goes now that has changed.

Brad Swanson, Route 60, Jamestown, NY, has lived there for over 24 years. When he got there both the Ag Center and the Airport did some work and paved. He has had water problems. He fe= els that whoever develops in between when there were no water problems and when there are they should share the burden of the cost and not the homeowner.

Paul Shanahan said that there are a number of proposals from rip-rap channels to be reshaped, propo= sed new rip-rap, some piping covers, etc. Mr. Weisenreder asked Paul to look at his copy because it was in col= or and showed the original plan (done in 2004) with site improvements. He used that as a basis to mark the areas that were improved in 2004. Those were all done and what was proposed= to be done was shown in red. They have not done anything since September becau= se Mr. Weisenreder wanted to come before the Board first to see what the Town wanted done. He asked what Mr. Weisenreder thought would be accomplished with just those fixes. Mr. Weisenreder said in regard to = the overall storm water run-off, every little.= It is just housecleaning to get them back to the condition they shou= ld be in. He agreed that this is= more of a comprehensive problem to address.

Ms. Brooks said that s= he had suggested two years ago when she was at the meeting that if there was a= heavy rain that they contact Verizon. She feels that those would be opportunities= to look at the problems.

Lori Terenna, 369 Hunt Road, W.E., Jamestown, NY= , stated she lives on the other side of Hunt Rd. and her whole back yard has flooded for se= veral years. She said that it floods before the pipe. She has lived there since 1995. =

Vince Gerace asked if = they have any provisions in their study to channel the water over to culvert that would be on the eastern side.

Attorney Wright said t= here was talk in 2004 about two different locations for a retention pond. One was in the area between the ro= ad and the Wright property and one over on the Media One property. Some of that water would be going = where it was suppose to go before and in a limiting matter so you could potential= ly minimize the effects to the downstream recipients. Mr. Tolman said in conce= pt he would like not to rely on the culverts and bring water to a sizable detention pond. He suggested = a pond because there is development up above and because the water coming down is changing direction.

Gary Swanson said that= it would be better to cut the water off up stream instead of down by the road.=

Mr. Weisenreder said h= e is still concerned about the pipe sizing depending on where the flow is directed. Dan said if the wat= er is being stopped upstream then you would not have to worry about the pipe size= . Mr. Weisenreder said even if you h= ave the pond, during peak storm events it may still overtop and you would still have that problem. Attorney W= right said if you use that pond and put the water down Idlewood you would still h= ave to deal with the culvert. If = it is put over to the east part of the property and direct it back to the other w= ater course then potentially you don’t.&n= bsp;

Randy Woodbury asked R= ex if they can put in enough pipes to be absolutely sure they would not need a= ny ponds at all. He thinks that = this problem calls for some type of detention.&= nbsp; Should they still continue to explore Mr. Weisenreder’s idea of trying to solve the entire problem strictly with pipes? Mr. Tolman said they would look at= everything. Rex asked if he could get full size drawings from Mr. Weisenreder. He would like both the 2004 and the 2008 plans. Mr. Weisenreder said he would provide the plans for Rex.

Mr. Gerace told the Bo= ard that he appreciates the time the Boards have spent on this application but would ask respectably that they deny the Special Use Permit until the water problems are fixed.

Attorney Wright said t= hat the Town Board has to be approached to try and get Mr. Tolman’s revie= w of this approved. Mr. Wright wil= l take it to the Town Board. Mr. Wri= ght would try to minimize the number of times that Verizon and their representatives have to appear. When they get the report back from Rex they can make a determination= and have Randy communicate with Verizon as to who they might need to come back = and for what purpose in order to keep it focused.

Mr. Evans explained th= at the Planning Board does not have a budget to take care of the engineering fees. It has to go to the Town Board for approval.

Ms. Brooks asked if Rex and Dave could work together behind the scenes because they speak the same language.

Randy said the code ca= lls for the applicant to reimburse the Town for the Town Engineers fees. The Board has declined to fund Rex= for the $5200 and has referred it to this Board to pursue the avenue that the f= ee should be paid by Verizon.

Attorney Lusk stated t= hat Verizon does not have a problem with being a partner or collaborator in this but as Mr. Tolman has stated this is more than the Verizon Wireless development. They feel that would be unfair since there is a Town wide issue here as well.

Attorney Wright said t= hat he will work with the Town Board and will see if they will make any commitm= ent and then he will work with Attorney Lusk to fill in the gaps.

Mr. Tolman said he wou= ld like to clarify that the things happening are exacerbating the situation bu= t he does not think they would have the problem without the road there.

Dan Evans explained wh= at he saw when he walked the property and where the pipes were. Mr. Brooks suggested that Mr. Tolm= an and Mr. Weisenreder walk the property.

Roger Loewenheim, 34 Orchard Rd., W.E., Jamestow= n, NY, stated that if the road is the problem maybe they should change the road. Mr. E= vans said it would be easier to take care of the water. Mr. Loewenheim asked abo= ut the renewing of the Special Use Permit. Attorney Wright explained that the Zoning Board of Appeals has referred this to the Planning Board because of = the drainage. The Zoning Board wi= ll not act on the permit until the Planning Board reports back to them on the water issues.

Motion made by Gary Swanson, seconded by Paul Shanahan to table this application for Verizon Wireless pending further information.

Carried.        =                   = Ayes – 7        =             &nb= sp;       Noes – 0        =             &nb= sp;            Absent – 0

Chairman Evans said the next item on the agenda = is a request from the Town Board for a recommendation on changing the Town of Ellicott Zoning a= nd Planning Code to include light industry in the Agricultural-Residential District.

Mr. Evans stated that = this has been a discussion for quite sometime.&= nbsp; It was once tabled until the comprehensive plan was completed. They have tried to have this area coincide with the airport zone, which it wouldn’t. They have tried to have this area conform to a commercial zone on the lower side of Route 60, which they could not do. The Board now has before them a segment that was taken out of the o= ld code to consider putting back in. It had been put in for people in a residential-agriculture area to s= tart a small business in the area. Dan read the old code.

Councilman George Beckerink, Town Councilman, said he had found this segment in the old code and said it had been taken out of= the code in 2002. He thinks that = the businesses that are in this area of Route 60 are ideal for this situation or code. He stated that he has b= een to both properties and talk to the neighbors and have heard no complaints from them in reference to the businesses being there. He feels that after 20 years or mo= re they have certainly proved themselves.&nbs= p;

Attorney Wright said looking at this right now, if the Planning Board considers this as part of = the code, it does not fit the businesses that are there.   It would not allow them to re= quest a special use permit.

Mr. Swanson addressed = the Board.

he stated that he has been there for over 23 years

he sells nothing out of there <= /o:p>

the employees park there and pick up= their work vehicles

there are two other businesses in the residential-agriculture district

he has not had any other complaints since they have lived there by their neighbors – the neighbors h= ave written to the Town in favor of the businesses

they do not impose on traffic

if asked to do something on his property, he does it

he has been in business for 39 years=

his son has been in business with him for about six years and he does not want him to worry about taking the= ir names off the vehicles

Dan said that everybody else has had to come in under site plan review except about three businesse= s in the area and go through the site plan review

Mr. Swanson said that = neither he nor Mr. Anderson have had any complaints from their neighbors. He said it needed to go on record that it was the attorney’s wife that has a pro= blem with his business. He feels t= hat it is a conflict.

Mr. Evans said that the Town needs a baseline on both his and Mr. Anderson’s property. In accordance with the Town code the Board needs to know what buildings they a= dd on, where the driveways are, where the signage is and the access and egress, drainage, lighting and anything else that would fall under the site plan review. If these are business= es they need to come to the Board under some kind of code.

Mr. Woodbury stated th= at these are businesses. The Town Board wants to put in some provision like the former 146-71 F segment of the code. Mr. Mike Sadowski, F= alconer Kimball Stand Rd., is in a residential-agricultural zone and is the only property that Randy knows abo= ut that had a process using the former segment of the code. A special use perm= it was secured by Attorney Robert VanEvery.&n= bsp; If the Board wants to put the light industry segment back in he feels that it should have more specifics. If the Zoning Board approves a special = use permit the next step should be a required site plan review.

Mr. Beckerink stated t= hat out of the people that work in New York State, 94% work for small businesses. He received that information from Senator Kathy Young’s office

Randy said the Town Bo= ard wants to find a solution to this. The Planning Board originally said that there are some solutions thr= ough rezoning but they wanted to wait for the comprehensive plan. Because there may be some solution through some planning process it would be improper to force them to shut do= wn while waiting for that solution. Mr. Evans said that they did look at this = for the industrial zone but it would not work.

Mr. Woodbury said that approximately 80% of the Town property is in Residential-Agricultural.

Paul Shanahan said he agreed with Mr. Beckerink’s assessment because he has talked to the neighbors in this neighborhood. He did not hear one compliant. He said all of Mr. Swanson’s neighbors appreciate him and do not have any issues with this. Paul also agrees that they must do something because everything needs to be fair for everyone. It was his understanding that this should be left for the comprehensive plan because this corridor would proba= bly be rezoned and would be rezoned in such a manner that would be conducive to= the situation. Because this has c= ome up again Paul does not think they can wait for the comprehensive plan. Paul st= ated that he does have some problems with home occupation permits.

Mr. Beckerink said tha= t he did understand the Planning Board has to find a process to keep these businesses but does not want to see them shut down. The Town needs to find a way to mo= ve forward.

Gary Swanson said that= the Boards need to find a way to make this work. It is hard enough to do business i= n this State. He likes the language = that “the Board of Appeals in its discretion may grant”. That would allow decisions on a case by case basis. He asked if there was a way to temp= orarily postpone this until the comprehensive plan was done.

Attorney Wright said t= hey attempted to do that and to direct Chairman Evans to write a letter back to= the Town Board stating they recommended against rezoning. They did not write th= at letter because once that letter was written the Town Board had no authority= not to enforce that. Paul thought that they recommended against rezoning for the purpose of allowing it to be addressed by the comprehensive plan. Attorney Wright said that the reason the letter was not sent was because the Planning Board can’t say to “hold off” on enforcement.<= /span>

Phyllis Belin asked why this section on light industry was taken out of the code. Attorney Wright and Dan Evans expl= ained it was because it was wide open for a lot of light industries in residential-agricultural zones. There are businesses that would be a big issue in those zones. There are a lot of places in residential-agricultural that you do not want some light industries. Attorney Wright said that if it wo= uld approve this business they would open up 80% of the Town that is residential-agricultural. Discussion followed between the Swansons and the Board. Paul said that these businesses of= Mr. Swanson and Mr. Anderson are unique in the sense that all their work is done offsite and they are not manufacturing and they do not create customer traffic. Attorney Wright sugg= ested they create a light industry zone and define what can go there, have it pic= kup from mercantile and have it go up and over the hill to the other mercantile. It will go up aga= inst industrial and mercantile property. It is an area that is not going to be prime residential. Mr. Swanson said he did not want t= he neighbors affected in any way. The Board can define it and limit the number of employees, the number of outdoor vehicles, the number of buildings and size. They can require that it comes = in for site plan review.

Attorney Wright said t= hey should run this in front of the planning people (Clark Patterson). They may have some ideas for that corridor. Randy said that at = the meeting last week they presented a list of things that were collected at the kickoff meeting. It was clear= Clark Patterson has a grasp of the “heart beat” of the Town of Ellicott. Randy thought they would have some= good feed-back.

Mr. Swanson asked if h= is son takes over the business and he still lives there can his son continue at this location. As long as thi= s gets changed to a light industry zone it would be legal. Randy said you can live= in any zone in the Town of Ellico= tt.

Councilman Beckerink thanked the Board for there considerations.

Randy will contact Cla= rk Patterson. Attorney Wright wi= ll take this to the Town Board.

Motion made by Paul Shanahan, seconded by Steve Peterson to table this recommendation until the Board has additional information.

Carried.        =            Ayes – 7        =             &nb= sp;      Noes – 0        =                   Absent – 0

Mr. Ed Schaneberger addressed the Board concerning the property at 646 Fairmount Ave., W.E., Jamestown, NY. This is the former Yum-Yum property. He asked if he need= ed a site plan review. It will be = opened as a family restaurant. =

Randy stated that he c= ould not find an original site plan for this property. Attorney Wright said they have dis= cussed having a baseline on the property. Randy thought it would fall into the same requirement as was done for Dunn Tire. Since it has been = out of business for so long they should have some baseline for the new business. <= o:p>

Mr. Schaneberger said = that he will have to pave the parking area and put in some outdoor lights but as= ked the Board if he needs to do a full site plan review since it was a pre-exis= ting restaurant.

Mr. Wright suggested t= he Board go through the site plan checklist and see if there are any parts that can be waived. The Board woul= d need to see a drainage plan. Mr. Schaneberger said he would like to have one wrap-around. He is waiting to see if he will be allowed to have the restaurant there before he purchases the property. Randy said there were no zoning issues. He will have to do a landscaping plan. Randy told = Mr. Schaneberger that he will not have to hire a surveyor because Randy said he could give him the contours off the GIS system.

Mr. Schaneberger told = the Board that he also intends to put small miniature golf in the back. Randy t= old the Board that the shopping district zone would not allow that unless it was enclosed. If Mr. Schaneberger= is going to do a site plan he thought he should include the miniature golf course. Under the sale contra= ct Mr. Schaneberger has to do the survey. Randy will provide the map with the topals.

Mr. Schaneberger asked= if he should have his attorney present when he comes before the Board. The Board said it is better to hav= e an engineer with him. If he were= going before the Zoning Board to argue the miniature golf course he should have h= is attorney present.

The present owner of t= his property is Tampa Cleveland Development Company. Attorney Wright told Mr. Schaneber= ger to make sure his attorney checked into the company and that he can get title to the property.

Motion made by Gary Swanson, seconded by Phyllis Belin to adjourn the meeting at 9:36 PM.

Carried.        =             &nb= sp;    Ayes – 7   &nb= sp;         =           Noes – 0        =             &nb= sp;    Absent – 0

______________________________=

Valerie Pierce, Secret= ary