PRELIMINARY DRAFT/UNAPPROVED
MINUTES
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 JUNE
27, 2005 AT 7:30 P.M.
PRESENT: Chairman
Steve Hoglin, Dave Remington, John Merchant, Angelo Cimo, Patricia
Martonis, Kathy Hedstrand, Rick 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 opened the
public hearing for Kathleen Hofgren, 2680 Horton Rd., Jamestown, NY, for the
renewal of her special use permit for a home occupation to operate a beauty
shop.
Mrs. Hofgren told the Board that nothing has changed in the past two years. She stated she had no other employees and has up to three customers at a time but they have room in their driveway for the cars and have no on street parking.
Secretary Pierce reported the neighbors were notified and there were no comments received by the Town. Mr. Hoglin asked and there were no neighbors present. Mr. Woodbury told the Board he has had no complaints.
Attorney Wright stated as a renewal of a special use permit this is exempt from SEQR and is renewable every two years.
Motion made by Ang Cimo,
seconded by Dave Remington to approve the renewal of the special use permit for
Kathleen Hofgren, 2680 Horton Rd., Jamestown, NY for a home occupation to
operate a beauty shop.
Carried. Ayes-7 Noes-0 Absent-0
Mr. Hoglin opened the public
hearing for Michael Darroch, 1 Westminster Circle, Jamestown, NY for a
special use permit for a home occupation to operate a professional consulting
business.
Mr. Darroch told the Board he did not anticipate having anybody at the home. All the work will be done out of the County or whatever business he will be doing the consulting for.
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JUNE 27, 2005
PAGE TWO
Secretary Pierce reported that the neighbors were notified. Mr. Woodbury said he had received comments.
Sharon Terwilliger, 85
Warwick Rd., W.E., Jamestown, NY, read a letter from Arthur and Vicki
Laury, 79 Columbia Ave., W.E., Jamestown, NY that they are strongly against
the application for a special
use permit of 1 Westminster Circle. They want the area kept as a residential
area.
Mr. Tom Terwilliger said
that he was concerned with rezoning of the area.
Attorney Wright explained to the Terwilligers this is not a request for rezoning and the code has very strict rules so a home occupation does not become a burden for the neighbors.
Mr. Darroch said he would be consulting on environmental issues and deregulation of the electric industry. He will have an office in his home and will need a physical address connected to the business permit. He will have no sign and no employees. If he ever grows to a point of having clients come to the office he would not have it as a home occupation but will have an office outside his home. He will have no clients coming to the house.
Mr. Woodbury received a call from an area resident and had a question for Mr. Darroch. He said there are provisions about acting on zoning issues if there are current violations. The person that called indicated there was a new development. Mr. Woodbury asked if he had an RV or mobile camper in the driveway. Mr. Darroch said he has an RV that he loads and unloads at the house but he keeps it stored on property in the Town of Ellery. He said no one camps at his location. Mr. Woodbury was satisfied.
Mr. Darroch has talked to three of his neighbors and they have no problem with the permit.
Attorney Wright reviewed the provisions with the Board members. Home occupations are covered in the code in 146-5 (in the definition section) and in 146-71 that states the Board shall not issue a special use permit unless it first determines the home occupation is customary and will be conducted exclusively by the person residing in the dwelling unit. No home occupation may occupy more than 25% of the dwelling space or 500 SF, whatever is less. Mr. Woodbury stated the building and fire code is the same. There would be issues if Mr. Darroch would ever have clients come to the home. If he ever has clients in the home he would have to come back to the Town.
Pat Martonis explained to the Terwilligers that if the area were ever to be rezoned it would be a Town Board issue. The Zoning Board does not decide rezoning. The Terwilligers did not have any other concerns. A special use permit for a home occupation is renewable every two years.
Attorney Wright stated this is exempt from SEQR as a type II action.
ZONING BOARD OF APPEALS
JUNE 27, 2005
PAGE THREE
Motion made by Rick Keefer,
seconded by John Merchant to approve a special use permit for a home occupation
for Michael Darroch, 1 Westminster Circle, W.E., Jamestown, NY for a
professional consulting business renewable every two years.
Carried. Ayes-7 Noes-0 Absent-0
Chairman Hoglin opened the
public hearing for Winfield Densmore for an appeal of the decision of the
Code Enforcement Officer’s determination that drive-through sales of cooked
farm meat sandwiches at 3484 Baker Street Ext., is a restaurant and not allowed
by section 146-13 E of the Town of Ellicott code.
Mr. Densmore said that he
disagrees with Mr. Woodbury about what he is doing and what they are
classifying it as. They have a farm on
Baker Street in the Town of Busti where they raise beef and chickens and
goats. He told the Board they have the OK
to do what they want to do up there just past Winch Road but he has concerns about
the traffic. The property at 3484
Baker St. Ext. is agricultural and he wants to market to the public what he
produces. He does not want any signs or a restaurant. He does not think what he
wants to do is a restaurant and that is his disagreement with Mr. Woodbury. It
will simply be a drive-thru. There will not be any public restrooms, sit down
space or parking lot. Mr. Densmore would be trying to get the Cummins traffic
in the morning and most of the morning traffic would be on the other side of the
road at his current location. They have
not purchased the property. and only have a verbal agreement to purchase the
property. They will put up a building but just have a drive-thru. His son would live on this property he were
to purchase it.
Attorney Wright explained there is a standing issue. In order for the applicant to obtain permission of anything that is specific to property the applicant would have to be the owner or have rights to purchase the property under contract.
Randy explained to the Board what his determination was that Mr. Densmore is objecting to. It is not necessarily specific to this parcel but has to do with residential-agricultural zone. He determined based on the description of what Mr. Densmore wants to do, it falls under the classification of a restaurant and would only be allowed by right in a mercantile zone and not allowed by right in a residential-agricultural zone.
Pat Martonis told the Board that she found a definition of a restaurant in Article 20 C under food processing establishments from the NYS Department of Agricultural and Markets. It included heating foods and sandwich making. She asked Mr. Densmore what the name of the license he would obtain would be. He said it would be under food processing or food serving. He does not call it a restaurant because it is not a place where you sit down and are waited on. It is simply a drive-thru. He would be preparing the sandwiches there. Kathy Hedstand also looked up the definition of a restaurant and it said it was a place where meals and drinks are sold and served to customers. She said she believes that Mr. Densmore’s business fits that classification. Mr. Densmore said that the farm bureau said a person
ZONING BOARD OF APPEALS
JUNE 27, 2005
PAGE FOUR
has the right to market what they produce on the farm. John Merchant said he did not think that included processed foods. Mr. Densmore said he wants the right to sell what he produces there. Attorney Wright said Mr. Densmore stated he would not be producing there but up the street at a different farm. Mrs. Densmore told the Board they will be producing there and all the animals they would be selling to the public would be on that farm. Mrs. Densmore stated they would even produce their own wheat for bread and they have farmed organically for the last 35 years.
Attorney Wright said the Board must determine if the Code Enforcement Officer’s decision that the use proposed by the applicant is a restaurant or anything else that cannot be performed in the agricultural-residential district.
Rick Keefer asked about a meat
slaughterhouse. He said that Gary Wick
is going through a similar issue in the Randolph area. Rick said that Mr. Wick is trying get it
rezoned in the area to make a farming industrial location. The Densmores would have to work with the
Town Board for that. Mr. Densmore feels
the Board was telling him they did not want this in their County but the Board
was trying to explain it is not allowed in an agricultural-residential district
but they could set up a store in a
mercantile district. Mrs. Densmore
said there is no farming left because the middleman makes the money. Rick said
what makes this an attractive site is because there are no competitors there,
but the reason there are no competitors is because the Town has kept other
businesses out. Mr. Densmore asked if
anyone has come and asked to sell what they have raised. Rick said that he looks at this is if it were
a home occupation and if this is incidental to what they are already doing there.
Mrs. Densmore told the Board the only employees would be family.
Kathy Hedstrand asked what type of business permit Mr. Densmore would be applying for. Mr. Densmore did not know. He said he already had the OK to do this on his property but the simple thing is he will create a traffic problem. Mrs. Densmore said a certain person told him to go ahead and open it and don’t worry about it. If there are accidents it is their fault for not paying attention. Mrs. Densmore had not been sworn in so Attorney Wright swore her in. John Merchant said that he had a hard time envisioning how he could handle all the Cummins traffic. Kathy suggested a sandwich trunk or possibly a small stand within the company. He will not consider that because he has catered for years and there is no substitute for fresh food. He wants to produce and sell the very best product for the money. He contends that this is not a restaurant because you do not go in and sit down.
Rick Keefer made a motion,
seconded by Ang Cimo to uphold the decision of the Code Enforcement Officer in
the matter of Mr. Winfield Densmore that drive-through sales of cooked farm
sandwiches at 3484 Baker Street Ext., Jamestown, NY, is a restaurant not
allowed by Section 146-13 E of the Town of Ellicott Planning and Zoning Code.
Carried. Ayes-7 Noes-0 Absent-0
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JUNE 27, 2005
PAGE FIVE
Chairman Hoglin opened the
public hearing for Sam’s Real Estate Business Trust, 720 Fairmount Ave.,
W.E., Jamestown, NY for a variance for excess signage.
Mr. Paul Webb, attorney for Sam’s Club and Tom Thill, Core States Engineering, presented plans for the signs that are going to be on the gas station. Sam’s Club has exceeded the allowed signage.
Attorney Wright asked Mr. Woodbury if Sam’s Club already have variances for excess signage. Randy said they did and Mr. Webb said they were not familiar with those. Randy said they were not only maxed out by right but also maxed out on variances already granted. It is not an out parcel so the signage has to be considered in addition to the signs already there.
Randy said it was his request that they give an analysis of the entire Sam’s Club campus. Mr. Thill said there are two signs on the Sam’s Club building that are from 200 SF to 250 SF.
Pat Martonis asked if the gas station has already been accepted. They are on the agenda for July 13, 2005. Attorney Wright explained that the only variances that Sam’s Club needs are for the signs but will go through full site plan with the Planning Board.
Mr. Woodbury asked the Board to review section 146-67 (4) E that states all permitted sign uses may be identified by one wall, projecting or ground sign. Sam’s Club’s ground sign and two wall signs exceed the permitted number. The area of the wall signs is approximately 200 SF and the area of the ground sign is approximately 100 SF. They are proposing additional wall signs.
Mr. Thill provided a site plan for the Board members. They are proposing a gas station on the southeast corner of the parking lot with a canopy and a small 224 SF kiosk that has no drive-thru. There will be no sales out of the kiosk. There will be 6 gasoline pumps and three underground storage tanks. Mr. Thill told the Board members the Planning Board suggested they add more buffering. They are not moving the curb. The hours of operation will be one hour before till one hour after the store hours.
The application they presented is for the typical signage package, which is one sign on each of the four sides of the canopy. The price will only be on the pumps. They are not planning to put any signs on the existing pre-standing sign. Rick Keefer asked why they needed signs facing the trees and John Merchant said as you are entering Sam’s Club you would know it is the Sam’s Club gas station. Attorney Wright asked if a small reader sign on the main sign on Fairmount Avenue would be the most effective. Mr. Thill told the Board is not part of the package and they do not hang gas signs on the ID signs. They have signs in the club that has the price of the gas because the gas is sold to members only.
Ang Cimo asked if there were any regulations on how far from a home the gas tanks needs to be. There is nothing in the Town code and the State code requires less than five feet.
ZONING BOARD OF APPEALS
JUNE 27, 2005
PAGE SIX
Pat Martonis asked if there were any conditions on the variances granted before. Attorney Wright said the Board couldn’t say they could not come in again and ask for more signs. He said the sign variances are very property specific given the size of the property and location. Sam’s Club was allowed to greatly exceed what the code has because they have a sizable piece of property and building.
Rick Keefer asked if the signs would be illuminated. The sign lights and most of the lights under the canopy will go out at closing except for a few under the canopy for security.
Mr. Woodbury had one compliant. Sam’s Club had a condition on the site plan at its inception that they would create and maintain a berm to separate the residents on Louisa Avenue. Randy told Mr. Thill there is a berm but it has not been maintained. Randy explained that if they come in for the site plan review on July 13, 2005 he would recommend the Planning Board table it pending compliance with the former site plan. Mr. Thill said he would contact the right people and have the berm taken care of.
Attorney Wright said that the Board could weight the benefit of each of the signs against the determent to the area. Mr. Hoglin said that he feels one sign facing west would serve the entire gas station. That would be their most preferred sign. Each of the signs is 42.3 square feet and about 15 feet from the ground.
Attorney Wright reviewed the five criteria for an area variance in section 267B of the Town Law. The Board of Appeals shall grant the minimum variance it shall deem necessary and adequate while at the same time preserving and protecting the character of the neighborhood and the health, safety and welfare of the community. The Board has reviewed the variances granted for the signs that already exist on the property.
Randy Woodbury stated that the entrance and exit is by the west so that westerly sign is the most important.
Discussion followed on other properties and the uniqueness of certain properties. Mr. Thill said they do have a smaller sign that is 18 “ instead of 24”. Mr. Thill did not know if there would be a cost factor for a deviation from the standard sign package.
Attorney Wright stated this is exempt as a type II action under SEQR. He asked Mr. Thill if he wanted to act on the package they presented or take a few minutes and discuss with Attorney Webb as to whether or not some other variation of this would be acceptable and more palatable to the Board. The Board cannot give them direction or be part of presenting the package. They can only act on what they request. Mr. Webb and Mr. Thill took a few minutes to discuss this.
Attorney Webb said they are asking the Board to act on two 23.9 SF signs, one on the south face and on the west face. Randy said they do have a portable sign but follow the code for that.
ZONING BOARD OF APPEALS
JUNE 27, 2005
PAGE SEVEN
Motion made by Pat Martonis,
seconded by Dave Remington to approve the sign variances for Sam’s Club for two
23.9 SF signs on the canopy of the gas station on the south and west side that
are 18” by 191” and includes the continuance of the area variances for the two
wall signs and one ground sign at 720 Fairmount Ave., W.E., Jamestown, NY.
Carried. Ayes-7 Noes-0 Absent-0
Motion made by Kathy
Hedstrand, seconded by Pat Martonis to adjourn the meeting at 9:00 PM.
Carried. Ayes-7
Noes-0 Absent-0
____________________________________________
Valerie Pierce, Secretary