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 MARCH
28, 2005 AT 7:30 P.M.
PRESENT: Chairman
Steve Hoglin, Dave Remington, John Merchant, Angelo Cimo, Patricia
Martonis, Richard Keefer, Kathy Hedstrand, 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 opened the public hearing for Jean
L. Holton for a renewal for a special use permit for a home occupation to
operate a real estate office at 3389 Old Fluvanna Rd., Jamestown, NY.
Jean Holton told the Board members that nothing had changed in
her operation.
Mr. Woodbury said he had no complaints concerning
this business and he said that from the outside evidence this seemed to be a
perfect example of a home occupation.
The neighbors were notified and there were no
comments made to the Town.
Mrs. Holton said her only employee was her
husband. She does not see any changes
to the business in the next two years. They want to keep the business small.
There were no neighbors present. Attorney Wright said this is exempt from
SEQR.
Motion was made by Rick Keefer, seconded by Ang Cimo
to renew the special use permit for a home occupation for a real estate office
for Jean Holton at 3389 Old Fluvanna Road, Jamestown, NY.
Carried. Ayes-7 Noes-0 Absent-0
Mr. Hoglin opened the public hearing for William
Piazza for the renewal of a special use permit for a home occupation to operate
a gun servicing business at 129 Metcalf Ave., W.E., Jamestown, NY.
ZONING BOARD OF APPEALS
MARCH 28, 2005
PAGE TWO
Mr. Piazza told the Board members there were no
changes in the operation and will be no changes in the next two years.
Mr. Woodbury said his office has received no
complaints and he has driven by and it is quite. He asked Mr. Piazza if all his licenses were up to date. He said that the Bureau of Alcohol, Tobacco
and Firearms have inspected his business. Mr. Piazza said he does the repair in
his basement and said he has no signage.
The neighbors were notified.
Within a year Mr. Piazza said he might have six customers come to the
house but he normally picks the guns up.
He prefers that for security.
There were no neighbors present. Attorney Wright stated this is exempt from
SEQR.
Motion was made by Dave Remington, seconded by John
Merchant to renew this special use permit for Mr. William Piazza at 129 Metcalf
Ave., W.E., Jamestown, NY for his home occupation to operate his gun servicing
business. This renewal is good for two
years.
Carried. Ayes-7 Noes-0 Absent-0
Pat Martonis asked if the Board members could have a
few minutes to review the information that was received concerning the next
application. The Board members will not
consider any letters not signed.
Chairman Hoglin asked for the next public hearing
the audience direct all comments to
himself or the Board. He wants to keep
it orderly and move it along.
Chairman Hoglin opened the public hearing for John
and Madeline DeMarco for a use variance on property owned by Southshore
Mechanical at 119 Hunt Rd., W.E., Jamestown, NY for three businesses (a dance
center and soda fountain with eight months operations and a fitness center with
year round operation) and an apartment above the businesses and parking lot in
the rear for all three businesses.
Douglas Spoto, Esquire, attorney for the DeMarcos,
explained that 119 Hunt Rd., Jamestown,
NY was
built prior to zoning by the Town of Ellicott and was zoned out by the current
zoning law. It was built around 1930
and was operated as a donut shop and then Johnson Electronics, and then
Electronics Supply (Frank Peterson). In
1976 prior to the zoning law of Ellicott the property acquired and operated by
Cline’s TV and Service until August 1989.
It was then owned and operated by Tom and Sandy Young until May
2000. In May of 2000 pursuant to a
variance granted by the Town of Ellicott Zoning Board the property was sold to
Southshore Mechanical and they were granted a variance to operate a heating and
fabricating business in that facility.
They have operated that business continually since that date until the
present time.
The DeMarcos have made an offer for the building and
are requesting a use variance for a dance center and a fitness center. The soda fountain is in connection to the business
and will be available to the dance or fitness classes.
PAGE
THREE
The building has had continuing commercial businesses for the last 70 years. Mr. Spoto said it would be a hardship to do anything else with the building. The property has been marketed several times. Mr. Spoto provided the Board with a photo of the building. It is a large block building with parking in the front on Hunt Road and parking on the side along Homestead and a parking lot in the rear of the building.
Mr. Spoto asked Rick Zahn, of Zahn Realty, to
addressed the Board and advise them of their efforts in trying to market this
building so the Board can determine from a broker the inability to market the
property for residential purposes.
Mr. Zahn told the Board that they put this property
on the market on April 28, 1999. It was on the market for 311 days. Southshore Mechanical purchased the property
and was granted a variance for their business.
They have now had the property on the market for 203 days. They have had lots of interest in the
property. He did an appraisal and did
not have a problem with appraising it for $125,000 but because it needs a use
variance nothing has come of it. Mr.
Zahn said the cost of the renovations to make it a three family home would be
too costly and he feels that they need parking somewhere except in the front on
Hunt Road. He has had about 15 showings
on the property. The sale price is
$95,000 and if you add the cost of renovations for a four apartment house in the cost would be ridicules. He has sent many letters to furnace
companies and electricians. Mr. Zahn
said they have had no other offers on this property through this listing and
only the one from Southshore Mechanical through the last listing. He can provide a list of the showings and
the advertising for the Board . The bulk of the showings have been interested
in commercial use.
There is a contract of sale for this property on
file with the Town of Ellicott. Mr. Zahn said his office did represent the
current owners when they purchased this property. The selling price at that time was $60,000. The current owners also purchased another
lot separate of that purchase.
Mr. Spoto said that Mr. DeMarco was here basically
to explain to the Board what the businesses would consist of. There are no plans to do any renovations to
the exterior only to the interior of the building. He said he was sure they were planning on some type of
soundproofing for the dance studio.
Mr. DeMarco explained that their dance studio was presently down
on Forest Avenue. They have classes
five days a week with an average of 4 to 4 ˝ classes per day. The number of students in the classes
varies. They will teach tap and ballet
and the students’ start at 3 years and go up to their senior year. They have
had a couple of classes for adults but normally do not have adult classes. The music is either tape or disc. They are licensed through Dance Educator of
America. The student’s parents usually
drop off them off. Mr. DeMArco said
there are 8 to 10 parking spaces in the front of the building and then parking
on the side. He put the variance in for
the parking lot in case it is needed for the future. The entrance will be in
the front but parents will probably drop off their children on the side. They will insulate the building but there
is not loud noise or music because you cannot teach over loud noise. The fitness center is currently on Third and
McDaniel and is for only woman only.
MARCH 28, 2005
PAGE FOUR
Victoria Haskell was sworn in and stated she is the owner of
Pretty Woman Fitness Center, 1635 West Third St., Jamestown, NY. It is for
woman only and they are only there for ˝ hour and do a circuit workout with
eight machines usually three days a week.
Mrs. Haskell would like to relocate so that the Moms can work out while
the children go to dance class. She can
get eight women in the center at one time. The hours for the fitness center and
dance studio are not the same. The hours for the dance studio are from 3:00 PM
to 7:00 PM. The fitness center hours
are from 8:00 am to 12:00 PM and then reopen from 3:00 PM to 7:00 PM. There are a total of four employees for the
dance studio and the fitness center.
Mr. DeMarco said they did not have any plans for the
renovation of the inside of the building to show the Board. This was not their
only location option but some of the others are too far away and one by the
skating rink needed more renovations. The upstairs apartment on this property
is currently rented with an income of
$400.00 per month.
Mr. Hoglin asked the current owners if the special
use permit would apply to the extra lots they own. Mr. Spoto showed the Board on a survey of what property was
included in this sale. Chairman Hoglin asked for Mr. Woodbury’s comments.
Mr. Woodbury said that his first observation is that
any conversion requires a set of plans by a registered design professional to convert
it from mercantile or business as it is now to either a residential type
apartment or business for public assembly, which is the dance studio’s type of
use. The conversion from a business to public assembly is one of the most
protected types of use that NYS recognizes because the whole idea of the
building code is for safety. There are
many requirements that have to be designed by a registered design professional
and installed by an installer that is licensed by the Department of State for
alarm systems. The conversion of that
space that has been used for business or mercantile to either assembly or
residential would be approximately the same.
To convert either way will be substantial. The return on the investment should be considered rather than the
cost of conversions.
Attorney Wright asked Randy Woodbury if this would
be required to go before the Planning Board.
Randy said if were to be used for a commercial use of any type it would
be required to go before the Planning Board.
If converted to more then two apartments it would require a special use
permit from the Zoning Board.
Attorney Wright said that the Board is dealing with
is a use variance application and Town Law covers the criteria in 267B
(2b). He reviewed the criteria for the Board
and stated that before the Board of Appeals can grant a use variance it has to
show that the restrictions of the zoning have created an unnecessary
hardship.
The Board is required to look at the following
criteria:
1)
they
need to determine if the applicant
cannot realize a reasonable return provided
that the lack of return is
substantial and demonstrated by competent financial evidence.
MARCH 28, 2005
PAGE FIVE
2)
the
alleged hardship is unique and does not apply to a substantial portion of the
district or neighborhood
3)
that
the variance if granted will not alter the essential character of the
neighborhood
4)
they
need to demonstrate that the alleged hardship has not been self created.
Attorney Wright stated that the public comments
should be directed at those issues.
John “Duke” Johnson, 1 Homestead Ave., Jamestown,
NY, had
concerns about the drainage, the plowing and removal of snow, the condition of
the building in the back as well as concern for his handicapped son. He wants this area to stay residential. This is his retirement home and he has put a
lot of money in his home. The volume of
traffic is also a concern. Mr. Johnson
also sent a letter that is in file.
Pat Martonis asked if Mr. Johnson had talked to the
current about any of his concerns. He
has not. He did talk to Highway
Superintendent Shellhouse concerning the drainage. He stated his home is
assessed at $140,000.
Richard Keyes, 11 High St., Jamestown, NY, stated he would like to keep
this as a residential area. He also has
traffic and safety concerns. His
neighbor was almost killed at that intersection. He has no problem with the
dance studio or fitness center but does believe it should be at that
location.
Beverly Keyes, 11 High St., Jamestown, NY, said that her neighbor Ann
Peterson, 12 High St., was the person that was almost killed in November
1997 and because of her health and age was not able to attend this meeting.
Mrs. Keyes said they have lived here for 48 years and would like to see this remain
a residential area. She said that Mrs.
Peterson would also like it to remain a residential area. She said that a big concern is the traffic and the number of
accidents.
Don Almgren, 133 Hunt Rd., Jamestown, NY said that he agreed with the
Keyes. He said he sees all the traffic and with the additional businesses
proposed up by the mall, which will create more traffic. He foresees an additional traffic light
somewhere perhaps at Howard. It would
not be a good location for this business.
He wants it left as a residential area.
Debbie Latona, 26 Central Ave., Jamestown, NY, said that she counted the
possible number of cars. She counted up
to 20 parking spaces. She took her daughter to the DeMarco School of Dance and
was there when there is the overlap of the next class coming in and it is a
disaster zone trying to get in and out.
She does come off of Hunt Road unto Homestead because she refuses to go
through the Howard and Hunt Road intersection because of the number of
accidents. She worries about the
children getting out on Hunt Road. She
is in favor of the business but does not feel it is the right place for
it. She said the businesses that have
been there before you did not know they were there. They have lived there since
Cline’s had their business and you never knew any of the previous businesses
were there. She had went through the neighborhood and had people sign a
petition (which is on file) and some people were upset they did not receive a
notice of the meeting.
MARCH 28, 2005
PAGE SIX
Joe Pintagro, 69 Magnolia Ave., W.E., Jamestown, NY,
was sworn
in. He told the Board that his biggest
concern is safety. The traffic will be
increased significantly. There are bus
stops before the building on the corner and as you turn unto Homestead there is
a bus stop. He believes there is a bus
at 3:30 P.M. There will be congestion. It will not be safe. He agreed with Mr. Johnson about the snow
not being removed not being able to see. There will be more traffic because of
the super store going in Lakewood because they will use Hunt and Howard. This is a residential neighborhood and they
have invested money there. He is a
business owner and is for their project but there is plenty of buildings to
better suit them. He asked if the lots behind the building are going with the
building. Just one of the lots is being sold with the building. His main concern is safety.
Rick Keefer asked if this project had been sent to
the County Planning Board. Randy said
the Board could not make any final decision without the County comments. Rick
asked Mr. Spoto what the offer for this property. It is for $95,000.
Pat Martonis said that she couldn’t consider this
without financial evidence. She asked if a use variance went with the land. Attorney Wright stated that the Board could
impose conditions on a use variance. The previous applicant came in for an
additional variance to lease out the store front for a second business and it
was denied. The use variance is for a
particular use and would be worthless even if it did go with the land. Mr. Wright said that he believed it would be
a new situation for any new use and the Board could prevent locking the
property into a business that they could later have no control over.
Snow removal was discussed and what conditions could
be imposed on the owner.
Rick Keefer said that he also wants to see financial
evidence and the applicant needs to provide this information. If the procedure is not followed the
neighbors can appeal and it could be thrown out if the Board has gone through
the whole procedure. Rick said this is only the first criterion but they must
get through this before they can consider the others. The Board can table this or go to a vote.
Attorney Spoto said the information the Board is
asking for is not within his or his client’s scope. He felt if the sellers
wanted to put the information together he would be happy to come back.
Attorney Wright said that the Board has to consider
all the criteria. They should not send
them on a hunt for all the information if the Board is going to deny it because
of other criteria such as traffic and safety as well as the criteria that the
use variance cannot be self-created.
Mr. Spoto said in his introductory comments that the Cline’s owned the
business and then came zoning. They
were the ones that had the zoning thrust down on them and now will be difficult
to prove hardship.
Kathy Hedstrand said she has extreme concerns about
the parking and the traffic. She does not visualize parents dropping off
children off in the front of the building.
She said they would drop them off on the side or in the back. She said that this would change the
essential character of the neighborhood with the increased traffic and the
proposed parking.
MARCH 28, 2005
PAGE SEVEN
Rick Zahn asked if they were to pursue selling this
property as an apartment house two units would be allowed in the residential
zone without a permit but if they would run into a parking problem if it were
more. Attorney Wright said that any
more than that would require the special use permit and the criteria is
specific to the Town of Ellicott and would be less onerous than the use
variance criteria.
John Merchant did not realize that Southshore Mechanical
was operating under a use variance. He
asked if they turned this property into apartments would they need a use
variance. Randy told him that they
would need a special use permit for anything over two units. Attorney Wright said any other commercial
use would require a use variance.
Chairman Hoglin reminded everyone that all the four
criteria must be met. He asked Attorney
Spoto if he would put together more information to present to the Board next
month or would he like it to go to a vote.
Mr. DeMarco wanted the Board to know that he was
told the property was commercial and than was told he needed a variance.
Mrs. Keyes said that she did not think more than
four cars would fit in front of the building and the apartment should have one
space reserved for them. Mr. DeMarco
said that he had checked with a person that does striping for parking lots and
he said he should get at least six spaces.
Mr. Spoto said that the first element has not been
met and it would not be fair to go to the others. They did not have the information for the first criteria and that
should be the denial for this variance.
They would than have an opportunity to come back down the road. They have a business to sell and need to
come before this Board again.
Attorney Wright recommends that the Chairman seek a
motion denying the use variance application on the basis that the applicant has
failed to meet the criteria set forth in 267B including that they failed to
demonstrate by financial evidence that he applicant cannot realize a reasonable
rate of return on the property.
MARCH
28, 2005
PAGE
EIGHT
Carried. Ayes-7 Noes-0 Absent-0
Motion
made by Dave Remington, seconded by John Merchant to adjourn the meeting at
9:08 PM.
Carried. Ayes-7 Noes-0 Absent-0
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