MINUTES
OF THE REGULAR MEETING OF THE TOWN OF ELLICOTT ZONING BOARD OF APPEALS HELD AT
THE ADMINISTRATION BUILDING, 215 SOUTH WORK STREET, FALCONER, NY 14733 JANUARY
10, 2005 AT 7:30 P.M.
PRESENT: Chairman
Steve Hoglin, Dave Remington, Kevin Saff, John Merchant,
Angelo Cimo,
Patricia Martonis, Richard Keefer, Attorney William Wright, Code
Enforcement Officer
Randy Woodbury and Secretary Valerie Pierce.
ABSENT: None
Chairman Hoglin called the meeting to order at 7:30
P.M. Secretary Pierce called the roll.
Attorney Wright swore in everyone that would be testifying at this public hearing.
Chairman Hoglin reopened the public hearing for
Gerald A. & Lois S. McConnell, 60 School St., W.E., Jamestown, NY for a
special use permit for a home occupation.
Attorney Wright asked Randy Woodbury for a report on
the physical inspection of the property and to make a determination whether or
not the physical use of the property met the criteria for a home
occupation.
Randy Woodbury said he made an unannounced visit to
the residence. Mrs. McConnell
showed Mr. Woodbury the office space that was about 6’ x 6’. They have a laptop and a printer. The stock
of materials is rather small. They have about six boxes that are one cubic foot
each in the bedroom. There is no
evidence of any occupation in the garage.
Mrs. McConnell also showed him the products and he explained those to
the Board. The neighborhood did not
show any indication of the sale of these items.
Attorney Wright reviewed the sections of the code
(146-5 and 146-71 A) that the Board was working with for this application. He also stated there are NYS Fire and
Building codes regarding home occupation and they are consistent with section
146-71 A of the Town code. The Board must determine whether the use that has
been presented by the McConnells falls into the criteria for a home
occupation.
Chairman Hoglin asked if there had been any issues
that had been brought up in the past.
Mr. Woodbury said there were issues in the past but nothing about this
particular operation. He felt the
McConnells were cooperative and quickly became compliant with the other issues.
Mr. Hoglin asked if the permit could be revoked if
there complaints. Mr. Woodbury said it
could and Attorney Wright readed 146-64 G of the code that applied and reminded
the Board special use permits were up for renewal every two years.
Mr. McConnell said they park their cars in the
driveway in the summer time. They do another business but it does have anything
to do with Echo Quest. They sort in the garage and take it to another
place. In the winter the cars are also
in the garage. They are not parked on
the street.
Al Suchar, 26 School Ave., W.E., Jamestown, NY, said the application is for
one business and stated if they are running another business out of the
garage. They should have to have a
permit for that as well.
Mr. McConnell told the Board they do not run another
business out of the garage but only sort.
They did put some items in the garage sale but complied when they were
asked not to do that. He said there are some garages on the street that are
worst then theirs in terms of stuff in the garage. They do work with their daughter on flea markets but not out of
the their house. Their last garage sale
was last year. Mrs. McConnell said they
have lived here for thirty years and had multi-family garage sales every year
and she did not have any more traffic when they added the flea market
stuff.
Leonard Skoglund, 33 School Ave., W.E., Jamestown,
NY, said
there was a lot of stuff in the garage when he went by. He said the want to run a second business
out of the house and what will happen when the business grows. He feels if the McConnells wanted to run a business they should not do
it in a residential neighborhood.
Mrs. McConnell said they have run this business for
three years and nobody knew they were even doing it. They do not keep a lot of stock on hand. The UPS truck comes up the street a couple
times a day and it does not stop at their house.
Pat Martonis asked if the neighbors would be
comfortable if there were restrictions concerning garage sales.
Al Suchar said the only reason the garage sales were
brought up was to show the way the McConnells have treated the neighbors in the
past. It would not be fair to them or the other neighbors. The neighbors do not want a business in the
neighborhood.
Chairman Hoglin reminded the neighbors this permit
is only for this one business. Rick Keefer said that it was his understanding
if there is another business the McConnell’s would have to come before the
Board and request a permit for that. He
did not feel the Board could make a decision on past experience and totally
unrelated issues such as the garage sales.
JANUARY 10, 2005
PAGE THREE
Mr. Suchar said the neighbors are the watchdogs for
the neighborhood and they are telling the Board what they have seen in the
past. He said if Randy had gone to do an inspection the day after the last
meeting he would have seen a garage full of stuff and for a week after.
Rick said that what is helpful about these hearings
are everyone is on notice and he worries about the precedent the Board would
set if they deny the permit. If another
neighbor wants to sell Mary Kay could they deny them a permit? Mr. Suchar said they are in violation if
they are running a second business and did not think the Board could grant a
permit if they are in violation.
Mrs. McConnell asked what they are in violation
on. They have done everything Mr.
Woodbury has asked them to do. They are
not running a business out of the garage.
They have resolved the other issues through their attorney and the Town
attorney.
Attorney Wright stated the Board should not go
beyond the permit to conduct the Echo Quest business. If there is other activity beside the Echo Quest business it does
need to be addressed but not what the Board is addressing now. They are here to determine if this business
fits within the home occupation sections of the code and can be permitted in
the residential district. Mr. Hoglin
asked if the McConnell’s understood that the permit is only for the one
business and there are safe guards built in for the neighbors.
Attorney Wright made the determination that this is
not a type II action and not exempt for SEQR.
The McConnells need to fill out a short form EAF.
Mr. Woodbury wanted to say he had not had any
complaints called in over the last year.
The condition of the garage that he saw today would be his understanding
of the enforcement standard for this business.
The Board moved on while the McConnells filled out
the EAF.
Mr. Hoglin opened the public hearing for Sherry L.
Propheter, for a special use permit for a home occupation for a beauty shop at
2184 Willard St. Ext., Jamestown, NY.
Attorney Kevin Sirwatka, representing Mrs.
Propheter, was present and would try to answer any questions by the Board. Mr. Sirwatka presented a survey map of the
property.
Attorney Wright asked if Mrs. Propheter lived at the
Willard Street address. Mr. Sirwatka
said they live on Woodworth Avenue. Mr.
Sirwatka said he did not think that they would be moving to Willard
Street. Mr. Sirwatka said he had
expected Mrs. Propheter to be here.
The Board moved on to the next application while Mr.
Sirwatka tried to reach Mrs. Propheter by phone.
JANUARY 10, 2005
PAGE FOUR
Chairman Hoglin opened the public hearing for B
& L Realty NY LLC, for a setback variance to construct an additional
building at 2887 Strunk Rd., Jamestown, NY 14701.
Don Cornell, representing B & L Realty, presented plans for a
three-sided open building for dry storage. The building will be 26’ by
160’ 3”. When they built the other
building the Fire District had issues. They needed to get enough access. The new building will sit on the southern
boundary of their property and they need the eight-foot variance to get
vehicles between the two buildings.
There is a significant tree line along the property line. They did try to buy property from the Humane
Society at the time they built the other building.
Kevin Saff asked if they have spoke to the Humane
Society and if they had any
concerns. Mr. Cornell said they talked
to them and asked if this impeded anything they have going. Mr. Cornell said their main concern was
noise when the Humane Society built but that is not a problem vecause ther is
enough barrier.
Rick Keefer asked if there was green space between
the two. Mr. Cornell said the Humane
Society had green space that will stay.
Mr. Hoglin asked if they have right of first refusal
on the property the Humane Society has.
Mr. Cornell did not think so.
They have looked into other sites but they felt the best way to make
this work was to add another building.
Mr. Hoglin asked Randy Woodbury what impact this
building being so close to the property line would have on the Humane Society
should they want to build something.
Mr. Woodbury said if the Humane Society stayed within the 50-foot
setback there would be no issues but if they requested a variance as well there
could be an issue.
Attorney Wright asked if they have received a letter
from the Humane Society like they had for the last building. They have had conversations with them. The Board would like a similar letter from the
Humane Society.
John Merchant asked if there have been any
complaints since the last building was put up. There have not.
Steve asked if this project falls within the review
of the County Planning. Randy did not
think it did. Randy is still working on
an agreement with the County recognizing that the Town of Ellicott Zoning and
Planning Boards handle certain matters fine without County review. The project could be challenged if the
process is not followed. The County
will not make an opinion as to the granting of the variance but will only state
they see no County or municipal effect.
JANUARY 10, 2005
PAGE FIVE
Mr. Wright asked what their schedule for
construction was. Mr. Cornell said they
would like to start construction as soon as the weather breaks possibility in
March. Attorney Wright said if the Board directed Mr. Woodbury to communicate
with the County Planning Board and if they asked Mr. Cornell to obtain a
similar letter from the Humane Society stating no objection the Board could
table this application until next month.
Mr. Cornell asked if they should attend the Planning
Board on Wednesday (01/12/05). They
will not need to appear before the Planning Board until after the January 31,
2005 meeting of the Z”BA.
Motion made by Rick Keefer, seconded by John
Merchant to table this application until the next meeting.
Carried. Ayes-7 Noes-0 Absent-0
Attorney Wright reviewed the form filled out by the
McConnells. He asked Mr. McConnell to
add Eco Quest under the project description. Mr. Wright stated that this action
does not exceed any type I threshold in 6 NYCCR, part 617.4 and will not
receive coordinated review. The Board
continued with Part II C of the EAF noting there will be no adverse impacts.
Kevin Saff said there was no proof that there is a
huge influx of traffic into the neighborhood and as for the character of the
neighborhood there does not appear to be anything that changes the character of
the neighborhood. Mr. Woodbury said
that it is his understanding that it is defined by the assurance of the
applicant that there will be none of these so if any of these things happen it
is no longer that project.
Attorney Wright said this project would not have an
impact on the environmental characteristics that caused the establishment of a
critical environmental area.
Motion made by Kevin Saff, seconded by Pat Martonis
making a determination that this project will not have any adverse
environmental impacts and authorizing Chairman Hoglin to sign the form making
that determination.
Carried. Ayes-7 Noes-0 Absent-0
Pat Martonis suggested that one of the conditions of
the approval be that they have only two parties per year and that two to three
cars parked on the road. Another
condition should be that there are no visible signs of the business in the
neighborhood.
Al Suchar said that at the last meeting the
McConnells said they had their daughter
involved and a home occupation is to be run by the occupants of the house. The
McConnells said their daughter is not involved in this Echo Quest business.
PAGE SIX
Motion made by Kevin Saff, seconded by Pat Martonis
to approve the application of Gerald A.
& Lois S. McConnell for a special use permit for a home occupation
at 60 School Street, W.E., Jamestown, NY for a Echo Quest business with the
following conditions:
1)
there will be no more than two parties in a calendar year
2)
no visible signs of the business to the neighbors
Carried. Ayes-5 Noes-2 (Remington and Merchant) Absent-0
Randy Woodbury told the McConnells that the permit
must be renewed in two years and if there is anything with this business that
he sees or that is called to his attention relative to the sorting of boxes
that is not related to the Echo Quest business there may be a reemergence of a
past action. Those are two separate
things. The state of the garage today is his understanding of how it will look
most of the time.
Mr. Suchar asked if he understood the motion they
are allowed on street parking to the tune of two or three cars. Attorney Wright said there are no
limitations for parking stated in the motion.
Attorney Wright swore in Sherry Propheter.
Attorney Wright asked Ms. Propheter if she was going
to move to Willard Street. She is not
going live at the Willard Street address.
There was a misunderstanding because the application stated she would be
converting the ground level front apartment to be made into an in-home beauty
shop with one station, which is to be owner occupied by the applicant. The
applicant is requesting a use variance.
Rick Keefer asked is she bought the property knowing
she was going to use it as a business.
They bought the property since 2001 and it has been income property.
Pat Martonis asked if they were to sell the property
would they be able to get income off the property. They would not be able to sell the property for the $116,000 they
paid.
Attorney Wright reviewed the criteria for a use
variance. This property is zoned
residential. They must show financial
evidence and meet all the criteria.
Attorney Wright asked if there has been any change in zoning,
circumstances or conditions in the neighborhood that have altered their ability
to use this property now over 2001. Mr.
Sirwatka said there have been no changes in the Town. The increased cost in maintaining the property makes it nearly
impossible to meet the monthly mortgage payments. An increase in rent will drive out the tenants. There are six
units. Ms. Propheter would convert one
of the units and keep five as residential units. Ang Cimo asked she was going to run the beauty shop. She is and
she has had her license since 1981. Mr. Sirwatka told the Board the increases
in values are not as they had been, especially the areas of rental real
estate. They did not have an appraisal
to indicate the value has decreases.
JANUARY 10, 2005
PAGE SEVEN
Rick Keefer said that the applicant should provide
actual dollar and cents figures to show the hardship. Attorney Wright said Rick was absolutely right. The criteria are
very difficult. If the Town of Ellicott
did something that adversely impacted the use of the property the use variance
would come into play. The applicant has
to have dollars and cents proof that has adversely impacted their ability to
use the property for any of the allowed uses under the code. They also need to show it was not
self-created. Ms. Propehter said that
the Town put in a water district and they had the expense of hooking up to the
water. Also the property was in such
disrepair they had to redo everything.
Mr. Wright said if the water district had not been available she would
have spent much more money trying to obtain water.
Mr. Sirwatka said there would be sufficient parking
for a beauty shop. The Board decided to
go through the criteria one at a time.
1)
the
applicant can not realize a reasonable return demonstrated by financial
evidence
The applicant did not have financial proof this
evening.
2)
the
alleged hardship is unique and does not apply to the substantial portion of the
district or
neighborhood
Mr. Sirwatka said he would review the code and
requested the Board table this until the January 31, 2005 meeting.
Motion made by Rick Keefer , seconded by Ang Cimo to
table this application until the January 31,
2005 meeting.
Carried. Ayes-7 Noes-0 Absent-0
Chairman Hoglin wanted to thank Kevin Saff for the
years he served on the Zoning Board of Appeals.
Motion made by Rick Keefer, seconded by John
Merchant to adjourn the meeting at 9:05 P.M.
Carried. Ayes-7 Noes-0 Absent-0
_______________________________________
Valerie Pierce, Secretary