May 13, 1997

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 ON JANUARY 28, 2008 AT 7:00 PM.

PRESENT:= Chairman Steve Hoglin, Dave Remington, Rick Keefer, Phillip Pratt, Kathy Hedstrand,

= Attorney William Wright, Code Enforcement Officer Randy Woodbury and Secretary

= Valerie Pierce

ABSENT: &n= bsp; John Merchant and Allan Hendrickson

&nb= sp;

Chairman Hoglin opened= the meeting at 7:00 and led the Board in the Pledge of Allegiance. Secretary Pierce called the roll.<= o:p>

Motion m= ade by Rick Keefer, seconded by Kathy Hedstrand to approve the minutes of the Dece= mber 10, 2007 meeting.

&nb= sp;

Carried.= = = Ayes – 5 = &nb= sp; Noes – 0 = &nb= sp; Absent - 2

&nb= sp;

Attorney Wright swore = in everyone present that would be giving testimony at this meeting.=

Mr. Hoglin welcomed Ph= il Pratt as a new Zoning Board member. He said that the other new member of the Board, Al Hendrickson, would be coming shortly.

Chairman Hoglin reopened the Public Hearing for Dunn Tire for a sign variance at the= Fairmount Plaza, 685 Fairmount Ave., W.E., Jamestown, NY.

The Town received corr= espondence from Dunn Tire requesting the application be tabled until the next meeting. Attorney Wright said= that something in their letter stated that they understood they had a year before their request expired. Attorn= ey Wright said that is not the case. It is not fair to the Board or the applic= ant to indefinitely table this application since the Board could take it from the table and act upon it at any time. That is not fair when you have given neighbors notice and then postpone it indefinitely. Mr. Wright said that he would like Randy to contact them and clarify they do not have a year and ask them to withdraw the application. If they decide later that they do need a sign variance they can come= and re-apply.

Motion made by Rick Keefer, seconded by Kathy Hedstrand to have the Town Code Enforcement Officer to respond to the letter from Dunn Tire clarifying= the items that were outlined above and to table this application for one more month.

Carried. = &nb= sp; Ayes – 5 = = Noes –0 = &nb= sp; Absent – 2

Chairman Hoglin reopened the Public Hearing for Robert Holcomb, 31 Frederick Blvd., W.E., Jamestown, NY 14701 for a back = yard setback for a replacement garage.

In November 2007 the Bo= ard asked Mr. Holcomb to obtain a maintenance easement from his neighbor. He has the easement in recordable = form but has not recorded the easement in Mayville on the advice of Mr. Wright a= nd his attorney. Attorney Wright= said the reason for that was because the Board had stated this would be a condit= ion precedent but would not necessarily guarantee the approval of the variance.

Mr. Holcomb said there = had been no changes in the plans, except the cost, since he presented it to the Board.

Randy wanted to complim= ent the Board on the concept of the maintenance easement for required space to main= tain the building. Setback varianc= es should be done with that in mind.

Mr. Wright asked Mr. Ho= lcomb to review what he intended to do for the benefit of the new Board member. Mr. Holcomb explained that he need= ed to replace his garage because the insurance company would not be renewing his insurance on the garage when his policy comes due. He came to the Zoning Board to req= uest a variance to build the new 24’ deep and 40’ wide garage. He would be eliminating the existi= ng shed. He had letters from mos= t of his neighbors stating they approved the project. He cannot move it forward because = of the deck and could not move it over because he would have to construct a new driveway. Mr. Holcomb said that because the lawn dips down they would also = have to add a lot of fill. The Board had requested that he get a maintenance agreement from his neighbor in the back.

Allan Hendrickson enter= ed the meeting at 7:20 PM.

Mr. Hendrickson asked i= f the maintenance easement would affect the neighbor’s setback in the futur= e. Attorney Wright said that it absolutely would. The setback is only five feet and that would mean houses could be ten feet apart. In areas that where the setbacks a= re very tight the Board has, when people have come in to get approve for a variance, started to require them to get approval from their neighbor. Basically the approval is a commit= ment from the neighbor that their setback would less and the neighbors have to acknowledge that. Additionally this is a maintenance easement and if there = is a building so close to properties line you could not get a ladder up to it for maintenance a formula was derived. The Board has been using two feet plus one additional foot for every= four feet of building height. Mr. Hendrickson said his only concern was they not affect the neighbor. Mr. Wrig= ht stated they could not build within the maintenance easement. Mr. Hoglin said the other thing is= the issue of fire safety. The Board has tried to maintain at least 10 feet betw= een the eaves between any two buildings.

Mr. Holcomb said it was= his understanding that if he built the exact replica of what he has (20 ½’ by 20 ½’) in the same location a variance would not be necessary. Attorney Wr= ight said if a certain percentage of the building is destroyed, then the building has= to be rebuilt code compliant. He= said that Mr. Holcomb could maintain the garage and replace one wall a year and eventually built a new garage on the same foundation. Randy said he agreed. He told Mr. Holcomb that by coming= to the Board and requesting the variance he would get a better garage.

Kathy Hedstrand asked i= f the garage would have three bays. Mr. Holcomb stated it would be a two bay garage with a workshop.

Attorney Wright said th= e Board is looking at an area variance for a rear yard setback for the construction= of a garage to be closer to the rear line then the five feet that is permitted= in the code under Section 146-11 (bulk regulations). The area variance is under 267 B o= f the Town Law. That is a five part-balancing test. Mr. Wrig= ht reviewed 267 B and the criteria the Board is required to follow in the gran= ting or denial of an area variance. The Board has the requirement on every varia= nce to make sure the variance that has been requested is the minimum that is adequate to accomplish the needs of the applicant, while at the same time protecting the character of the neighborhood in the health, safety and welf= are of the community.

Mr. Wright reviewed the= definition of a garage in the residential and agricultural residential section of the code. A garage is a privately= owned structure for the keeping of up to three automobiles by the occupant with a total size not to exceed 1000 SF. Mr. Holcomb’s garage will fall just under the allowed square footage.

Kathy Hedstrand asked M= r. Holcomb what he was planning to do with the existing shed. Mr. Holcomb stated he would be rem= oving the shed. The variance Mr. Ho= lcomb is requesting is for 3 ½ feet.

The only correspondence= the Town received was from the last meeting and was from neighbors that were in favor of this project.

Attorney Wright stated = this project is exempt from SEQR as an individual setback variance on a resident= ial property as a type II action.

Motion made by Kathy Hedstrand, seconded by Dave Remington to accept the application for a 3 ½ foot setback variance for a replacement garage for Robert Holcomb,= 31 Frederick Blvd., W.E., Jamestown, NY.

Carried.              =             &nb= sp;   Ayes – 5        =              =       Noes – 0        =             &nb= sp;    Absent – 1

Chairman Hoglin reop= ened the Public Hearing for Dawn Thompson d/b/a Dawn’s Canine Rescue, 3710 Ross Mills Rd., Falconer, NY for the renewal of a Special Use Permit to operate a dog rescu= e.

Dawn Thompson to= ld the Board that her Attorney, Andrew Goodell, was supposed to be at the meeting.

Mrs. Joan White = explained why the land transfer had not taken place.= On the piece of property that was to be deeded to them there were two different mortgages or liens. There was triangular piece that had a separate mortgage than the rest of Thompson’s property Dawn said that in order to resolve that problem w= ith the triangular piece they went and got a mortgage to combine the two pieces= to get the lien released. Both D= awn and her husband have signed the deed. The White’s could not sign the deed without the lien being tak= en care of and Dawn was told that could be done within thirty days.

Kathy Hedstrand asked D= awn if it was still her intention to phase out this business and if so maybe there would be an easier way to solve this. Dawn stated that was still her intent= ion and that both she and the Whites want the land transfer. Rick Keefer asked = if there would be any significance if this were going to be a non-issue in a year.

Attorney Wright stated = this is a renewal of a Special Use Permit that was granted in October 2006 a= nd expired in September of 2007. Dawn is without a permit at this time. Dawn told the Board she would like approval for two years to have ti= me to phase this rescue out.

Mr. Wright reviewed the standards for the granting of a Special Use Permit in section 146-64 of the Town of Ellicott Planning and Zoning Code. This is a lo= cal consideration; there are no State criteria for the Special Use Permit. In each category of the code there= is permitted uses that are permitted as of right, there are uses that are excl= uded and there are special permit uses. The special permit uses are under section 146-15 and include animal hospitals and kennels. The Zo= ning Board determined that this was an animal hospital or kennel and therefore c= ould be done by Special Use Permit in the Town of Ellicott. In section 146-64 of the code it l= ists the criteria for a Special Use Permit and states why the criteria are there= . These are typically the uses that = may be offensive to neighbors. The c= ode states that the uses in connection with any Special Use Permit shall not be more objectionable to nearby properties by reason of noise, fumes, vibratio= n or lights than would be any permitted use.&nb= sp; The Zoning Board’s job is to look at the use and determine tha= t it would not be more objectionable than any permitted use.

Chairman Hoglin read fr= om the minutes of the October 30, 2006 meeting when Dawn’s Special Use Permit was granted. The conditions that were put on the approval were:

<= span style=3D'mso-list:Ignore'>1)&n= bsp;     the land agreement between the Thompsons and the Wh= ites go though

<= span style=3D'mso-list:Ignore'>2)&n= bsp;     the Planning Board session goes on and the drainage issue be addressed

<= span style=3D'mso-list:Ignore'>3)&n= bsp;     the roofed kennels contain all of the rescue animal= s

<= span style=3D'mso-list:Ignore'>4)&n= bsp;     the quarantine area is to be enclosed as agreed upo= n so to be out of the neighbors view

<= span style=3D'mso-list:Ignore'>5)&n= bsp;     the animal free zone agreed upon by the neighbors a= nd Dawn Thompson (as shown on the Steven A. Carlson map) be maintained as an animal free zone – no dogs will be housed on it or kennels built on i= t

<= span style=3D'mso-list:Ignore'>6)&n= bsp;     the soundproofing in the fenced in walls, which has been stated to be on three sides, is to be completed

<= span style=3D'mso-list:Ignore'>7)&n= bsp;     if one or both of the barns, which are sight barrie= rs, were to be torn down or burned down another barn would be constructed in a = timely fashion

This permit was granted= for one year only so the Zoning Board could assess it again.

Dawn stated that all th= at has been done with the exception of the deed.&= nbsp; Mr. Hendrickson asked Randy if all the criteria had been met. Randy = said that everything that Steve had read had been met with the exception of the = land transfer. He told the Board t= hat Dawn came back in October because at the Planning Board session some changes occurred in the type of construction during the Planning Board discussion v= ersus what was discussed at the Zoning Board.&nb= sp; It was agreed in order to synchronize all of the details Dawn had to make one more appearance to the Zoning Board following the Planning Board meeting. There was a slight difference in the plan for the roofs. Dawn said there was some misunderstanding on the roofs where they we= nt from the barn area to the open fence area.= The Board approved a pavilion style roof. The pavilion style roof or= the additional long roof was if it were approved with a barn. The individual roofs were if it we= re a fence.

Attorney Wright said he= did not remember that Dawn came back to the Zoning Board. Kathy said she did not think the Z= oning Board recognized the change until Dawn came back for the renewal. Dawn provided a letter from JDH Enterprises that explained why the larger pavilion style roof would be a problem and not would be in the best interest of the animals.

Discussion followed on = the issues that were discussed in the Planning Board and Zoning Board sessions.=

Rick Keefer said the ne= ighbors had complained that there were dogs in the animal free zone. Dawn said that dogs had been tied to the trees in the front yard but that is not an animal free zone. She also said that= Mr. Wright told her that if a dog was left tied to her tree she was to call Dog Control Officer Larry Belin. She call= ed Larry 12 weeks ago and he did not respond.=

Mr. Hoglin asked for co= mments from the neighbors. He said that the Board only wanted to hear about items = that were read from the conditions that were put on the approval and had not been complied with.

Mr. David White, 3750 Ross Mills Road, Jamestown, NY said that they had been trying to get this deed executed for 15 months. He found out today that Dawn’= ;s Attorney, Andrew Goodell, has no intention of executing the deed until this permit is renewed and the Planning Board approves the building. The second issue the Whites have i= s all the dogs need to be in the kennels. He said Dawn has 8 or 10 kennels outside the walled in area. He feels that 8 dogs outside the k= ennel area are too many. If the land transfer does not go through Dawn has said s= he would adopt all of the dogs and move the fence. Mr. White feels that is unacceptable.

Mrs. Joan White = said to clarify the exchange of the deed Doug Spoto had to send a very forceful let= ter to Attorney Goodell saying that if they do not see any action happening, because they have been requesting the deed signed, they will not follow thr= ough with the land exchange and agreed with the approval of this Special Use Permit. The bank has to disch= arge the lien before they cannot sign the deed because it is a mortgaged piece of property. Secondly they do ha= ve a copy of a signed deed that cannot be recorded. The communication with their lawyer was; if the Zoning Board gives Dawn the approval for the Special Use Permit and she accepts what the Planning Board is asking her to do Mr. Good= ell would then release the original deed to be signed and recorded.

Rick Keefer asked if th= ere have been dogs out front since the November meeting. Dawn said that she has three kennels with her dogs and there are 16 dogs in the kennels. All the dogs ha= ve been licensed. Mrs. White sai= d that the dogs are on their land and any city administrator can go and walk inside the kennels. Randy told Mrs. = White that he was not allowed to go in there and is chased off by Mr. Thompson. Dawn said that they asked Randy to= come when they are there because they are responsible for the dogs.

Margaret Young, 3722 Ross Mills Road, Falconer, NY, had concerns ab= out the quarantine area. She said= she understood that the dogs were to be there for three to four weeks and there= is a dog that has been there for almost a year. Dawn said the dog has a repeatable fungus and they can not get rid of it.&nbs= p; Mrs. Young said that the side that faces her property is enclosed bu= t going back it is open so every time she walks out of her house the dogs see her a= nd constantly bark. She cannot b= e out on her own land without the dogs barking. Dawn said that would be the same = if the dog were hers or a rescue dog. Mrs. Young said that she does not want the dogs in back of her property.

Diane Paterniti, stated she adopted a dog from Dawn in April and that she has visited the kennels on two or three occasions and the dogs do = bark when she is there. She stated that Dawn had 15 or less dogs and they were a= ll in the kennels.

The Board asked Randy w= hen he last visited the kennels. Ran= dy said that he made a visit before the last meeting but did not physically go into the kennels but looked over the fence.

Attorney Wright asked A= ttorney Goodell to explain the lien on the property that was just discovered. He asked what it was and how long = it would take to get that discharged off so this property transaction could go. Attorney Goodell explained that Dawn had two mortgages and both cover her existing property. In order t= o do a property exchange you have to pay off the mortgage on the property you are conveying and reapply the mortgage on the new property. When it was reviewed the mortgage = had been sold several times. Lake= Shore Bank agreed to remortgage all of the property. Mr. Goodell said that should take = only a couple weeks.

Attorney Wright said th= ere are two issues:

<= span style=3D'mso-list:Ignore'>1)&n= bsp;     in the list of conditions that were read by Chairman Hoglin is clear the first condition, which is the property exchange, has not happened – unless the Board would decide that was no longer a valuable condition (wh= ich would mean that Dawn’s kennels would be built on property that she do= es not own) there is a failure of a critical condition

<= span style=3D'mso-list:Ignore'>2)&n= bsp;     the one year approval was a test to make a determination as to whether or not the property could meet the criteria of a special use permit – and if the operation conducted for the special permit use was no more objectionable to nearby properties then would be the operations of any permitted use

Mr. Wright said that th= e Board has

<= span style=3D'mso-list:Ignore'>1)&n= bsp;     determine that the conditions of the original permit were not complied with – the permit is

        =           expired so if they do not do anything Dawn is done – Randy cou= ld start enforcement

        =           action

<= span style=3D'mso-list:Ignore'>2)&n= bsp;     the Board could decide, even though there is a fail= ure of a condition, to table this for one

        =           more month on the basis that the property exchange will actually take place – Attorney

        =           Goodell stated in his letter that the property exchange will not take place unless the Zoning

        =           Board and Planning Board approves this – that is unacceptable = and will not happen –

                 = Mr. Goodell said they did not want a property exchange if they were not going t= o be

        =           able to proceed - if they do not proceed Dawn has already licensed t= he dogs in her name

        =           and the Zoning ordinance in the Town of Ellicott does not limit the number of p= ets a

        =           private owner can have – Dawn would stop the rescue but would = not be limited to the

        =           number of dogs she could have – Attorney Goodell said they wou= ld have no problem if the

        =           Board wanted to make the permit approval conditioned on the property transfer so her

        =           permit would not become effective until the property transfer took p= lace – He would

        =           suggest that Dawn cease any rescue work until the permit kicks in
<= span style=3D'mso-list:Ignore'>3)&n= bsp;     the Board could determination that this was a good = try but despite the efforts it cannot be a special permitted use because it can= not be made to be less objectionable to nearby properties by reason of noise, f= umes and lights then would be any permitted use – that would be the ration= al for not granting the extension of the special use permit

Attorney Goodell said t= hat this is a residential-agricultural zone so when you consider what other things a= re allowable (any agricultural use is allowable) this would be less objectionable.

Dawn said that she has = done the noise control by investing approximately $5,000.00 in material including the anti-barking devices and soundproofing on the fence. She feels she has done everything possible and met every thing the Board has asked her to do except the deed. She did not realize she= would have to remortgage. She would= ask the Board to approve the special use permit for three months and have her b= ring in her deed and then approve the permit for two years.

Al Hendrickson asked Da= wn if she was going out of business. Dawn stated that she would be going out of the rescue business within the next t= wo to three years. It would take that long to find homes for the dogs. She will not recoup her monetary investment but wants to find good homes for the dogs. She has no intention of taking in any more rescue dogs. She would take dogs that people specifically request and she is able to find bu= t that would be just a quick in and out with enough time for Dawn to get shots for= the dogs. Attorney Goodell stated the land transfer can be completed within 30 days.

Randy told the Board th= at Dawn has not met the condition of the roof and she has to go to the Planning Boa= rd to get approval. She has made= a stockade fence that she soundproofed to put the rescue dogs in and does hav= e a quarantined area. Dawn has ch= anged her mind about what would be best for the roof over the rescue dogs. A year ago the pavilion roof was approved but the roof that she wants to do now is contrary to what she said would be there at this point.

Randy said that he does= not necessarily agree with Mr. Goodell’s opinion about the number of pets= a person can have in the Town of Ellicott. He has court cases to prove that the Town of Ellicott code does in fact restrict the number of pets you can have. The code states you can have customary accesso= ry uses and the court defines that.

Mr. Hendrickson asked i= f the permit could be approved with conditions.&= nbsp; Kathy said she was concerned if the land transfer will actually solve the situation. She did not th= ink that it would because the dogs are still going to bark. The reason the Board approved the = permit for a year was they had concerns with the neighbors. Dawn said she agreed a= nd that is why she invested in the anti-barking devices. Kathy said that she has no doubt t= hat Dawn has done everything she can but the Board has a responsibility to both Dawn and the neighbors. Dawn = said that all the other neighbors have no issue. It is the closest neighbors with t= he issues.

Mrs. White said that 15= months ago they came to the Board in support of Dawn and were willing to give her = land and willing to give her money. This morning she received a call from her lawyer and was told that they did not = have a signed registered deed and was being told that if Dawn did not like what = the Planning Board had to say to her the Thompsons would not go through with the land transfer. Dawn would put= her dogs behind the barn and fence. The Whites are tired of 15 months of being slandered and months of lawyer fees.

Mr. Hendrickson asked D= awn what happens if this permit is not granted and what she would do with the animals.   Dawn said that= she understood that she would be taken to court. She talked to Town Clerk Mike Erla= ndson and he told her the Town would have to pay for all the animals to be taken = to the Humane Society. Attorney Goodell said that is assuming the Town wanted to take Dawn to court and the= n they would find out if there is a limit on the number of pets a person can own.<= span style=3D'mso-spacerun:yes'>

Mr. White’s sugge= sted that a privacy fence being built between Mrs. Young and Dawn so the dogs co= uld not be seen. He would also as= k that her personal dogs be put into the rescue area. The White’s will continue wi= th the land transfer. Mr. White feel= s that two years is too long for the permit.

Al Hendrickson stated t= hat if the Board granted a one year permit and Dawn could get the dogs down 5, in = a year she could come back to the Board and ask for more time. Dawn does not want the Town to hav= e to pay for the dogs that they would have to take to the Humane Society.

Phil Pratt had a few questions. He stated he lives= in Ross Mills and he was confused about a couple of things. He was concerned about the fact th= at Dawn did not want Randy to go back into that area unless she or her husband= was there. His concern was that t= he property is not theirs. Dawn said Mrs. White signed a building permit for h= er to build the fence. Mrs. Whit= e said they signed the permit contingent on the fact they would do the land exchan= ge in a timely manner. Dawn said= the dogs are her responsibility and she does not want to be sued if someone gets bit. With Dawn or her husband= there the dogs do not bark so much and she was just asking for courtesy. She said that the whole thing is the liability and the dogs are Dawn’s liability.

Chairman Hoglin propose= d that this be tabled for one month and in that month’s time both sides woul= d bring back proof that the property exchange is ready. The deed has to be in recordable form. Attorney Goodell said t= hat they have all of that now on their side but the deed has not been signed by Whites. Mrs. White stated the= re is still a mortgage on the property so they are unable to sign the deed.

Phil said that he did g= o to the neighbors and there are people that are opposed to this. He reviewed the comments he receiv= ed from the neighbors for Dawn and the Board.

<= span style=3D'mso-list:Ignore'>1)&n= bsp;     they are concerned about noise of the dogs

<= span style=3D'mso-list:Ignore'>2)&n= bsp;     they feel that Dawn does a shift of dogs when she k= nows someone is coming

<= span style=3D'mso-list:Ignore'>3)&n= bsp;     when he went to the Eskeli’s house the dogs a= ll started barking so he said it is obvious they can see in that direction

<= span style=3D'mso-list:Ignore'>4)&n= bsp;     he does not walk his personal dogs that way because once he hits the White’s property all the Dawn’s dogs start bar= king – once the dogs that can see start barking then all the dogs start – Mrs. White said that any place they go in their yard all the dogs s= tart barking

Phil asked Dawn to expl= ain about the quarantine area. Da= wn said that it was primarily used when new dogs came in so she has time to get their shots. The dog she has in there now has to be in because of the fungu= s.

Rick Keefer made a motion, seconded by Al Hendrickson to move into executive session to seek advice from council at 8:45 PM.

Carried.        =             =        Ayes –6        =             &nb= sp;         Noes – 0                 =             &nb= sp; Absent – 1

The Board reconvened at 8:58 PM.

Chairman Hoglin stated the public comment was closed. He asked = if there were any more questions from the Board. There were none.

Motion made by Al Hendrickson, seconded by Dave Remington to deny t= he application for Dawn Thompson for the renewal of her Special Use Permit bas= ed upon the fact that she has not met the criteria set forth by the Board for = the original one year permit in that the property transfer has not been complet= ed and even though serious attempts were made to prevent the objectionable noi= se, etc. to the nearby properties it was not possible to do.

Mr. Hendrickson wanted = to clarify the reason he was making the motion. He did not see any reason for = the Board to table this for another month not knowing if there were going to be= a land transfer or not. They can continue with the land transfer and Dawn can have the dogs licensed individually until the Code Enforcement Officer does what he has to do.

Carried.        Ayes – 4        =       Noes – 0        =    Abstain – 2 (Hedstrand and Pratt)     Absent -1

Motion made by Rick Keefer, seconded by Kathy Hedstrand to adjourn = the meeting at 9:00 PM.

Carried.    =         =            Ay= es – 6        =             &nb= sp;      Noes -0    &nbs= p;            &= nbsp;            Absent – 0

_______________________=

Valerie Pierce, Secreta= ry