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 JULY 30, 2007 AT 7:00 PM.
PRESENT: Chairman
Steve Hoglin, David
Remington, Pat Martonis, Angelo Cimo, Rich Keefer,
Kathy Hedstrand, Attorney
William Wright, Code Enforcement Officer Randy Woodbury
Pat Martonis, serving as
secretary
ABSENT: John
Merchant
Chairman
Hoglin opened the meeting at 7:00 PM and Secretary Martonis called the roll.
Motion made by
Ang Cimo, seconded by David Remington to approve the minutes of the March 26,
2007 meeting.
Carried. Ayes – 6 Noes – 0 Absent – 1
Atty. Wright swore
in all in attendance that might be giving testimony before the Board.
Chairman
Hoglin opened the meeting for continuance of a public hearing for Falconer
Enterprises (Harley Davidson), 1951-1959 E. Main St., Falconer for sign
variances.
Randy Woodbury reported
that there were some financing delays and they are now back on track. They were given a foundation permit
today. They will come with their
modified sign request at the next meeting and they are working with the
architect to minimize the variance requirement.
Tabled.
Continuance of
a public hearing for the renewal of the Special Use Permit for SBA Properties,
Inc., 3108 Eckman Rd. Jamestown, NY.
Two letters were presented
from SBA addressing two of the outstanding items. One regarding a bond for the full amount and an engineers report,
as our code requires. The second letter
asks for additional time to do a radio frequency analysis study. Randy Woodbury requested a conference with Atty.
Wright and he wishes to send a letter to SBA and/or the bonding company, to let
the bonding company know they are at risk.
SBL has not provided a radio analysis by a NYS licensed radio engineer.
Motion made by Rich Keefer
and seconded by Kathy Hedstrand that the Code Enforcement Officer, with the
assistance of Atty. Wright, write a letter to the bonding company and if
compliance isn’t received within 60 days or we will start enforcement to take
the tower down.
Public Hearing
for Jerome and Ruth DeLong, 20 South Hanford Ave. WE, Jamestown NY for a front
yard setback variance for a proposed replacement of a porch. Right now, from the center
of the road to the top of the step coming out from the door is only 48
feet. Neighbors have been shown
plans. It is presently 4x4 and it will
come out 8 feet and follow the edge of his driveway 15 feet. He only needs a variance for the front. The house was built in 1924.
Randy Woodbury stated that
the actual variance requested would be for 12 feet to be 50 feet from the
center of the road. He requested the
applicant have their property professionally surveyed, and they have not yet
had it done. It was done when they
purchased the property. Atty. Wright
requested they bring that survey in for the next meeting. The referral has come back from the
county. No neighbors have come to the
meeting. No correspondence other than
that from the county
Motion by Rich
Keefer to table the application until a survey is completed and presented to
the board at the next meeting. Seconded
by Ang Cimo.
Public Hearing for Calvert Baker, 2053 Buffalo St.
Ext., Jamestown, NY for appeal of the Code Enforcement Officer’s determination that
Mr. Baker violated Section 146-7 of the Town Code covering accessory uses.
Atty. Paul Webb stated Mr. Baker had an issue regarding his
fence and Mr. Baker was cited for having the kennel and has a wolf-dog hybrid,
goat and a miniature horse located in the pen.
Their contention is that the kennel and the goats are not accessory uses
and therefore violate the ordinance.
Mr. Baker has resided at that same property for 42 years. He has had the kennel at that property for
42 years. The fence has existed since
that time. The property has been used
to house and train animals. If the
kennel is not allowed in the residential zone, the use of his property existed
before the ordinance. It should be
considered a nonconforming use and be allowed to continue. The kennel itself is not specifically listed
as an accessory use for a residence.
The kennel should be an accessory use to the present use that he is
using that property, and has used as such for the last 42 years. The kennel should be either an accessory use
to the main building or a nonconforming use.
The kennels are located 300 feet from the road, in the woods. You can’t see them from the road. He replaced the older fence, and it is
stated to be a nuisance and doesn’t conform with the character of the
neighborhood. He received the proper
permit for the wooden fence and also the chain link portion of the fence. One part of the fence was made to be 8 feet
tall to prevent kids from throwing things over the fence. He has a license for the wolf dog. Atty. Webb wants the board to determine that
either if your zoning code officer wants to say it is not an accessory use and
it’s a violation, I am asking you to say it is an accessory use to the existing
residence or that it is a nonconforming usage that has been in existence since
1965 and nothing has to be done. A
variance for the higher portion of the fence is still pending. A permit for the kennel was issued in 1965. The use of the building has not changed
since 1965.
Atty. Wright: The Code
Enforcement Officer has interpreted the code to read is that the keeping of a
wolf is in violation of 14657 C, which is the residential portion of the zoning
code that talks about permitted, specifically accessory uses. The keeping of these animals is a customary
accessory use. The original determination was made Nov. 14, 2006.
Mrs. Kinnis stated that she and her father (who lives next door
to Calvert Baker) have no problem with the animals.
Randy Woodbury: The
residential zoning was put in place in that area before 1949. The zoning was extended to the east to the
intersection of Willard and Buffalo prior to 1976. Mr. Baker’s property has been in the residential zone since at
least the 1940’s and perhaps since the 1920’s.
Atty. Wright: Under Town Law 267 A 5B, appeals under
determination from Code Enforcement Officer have to be brought to the Zoning
Board of Appeals within 60 days. It has
been seven months.
Atty. Webb: Someone
could have objected to it, but no one did.
He questions that Atty. Webb is stating that the board can’t hear
it. There is a 60-day time period, but
that doesn’t bar someone from coming back and asking the board to interpret its
ordinances.
Marilyn Nelson: 1922 Willard St. Ext., Jamestown, NY. is
Mr. Baker’s neighbor. She feels the
residential zone is only 250 feet deep.
Cal has dedicated his life to the care and training of animals and has
educated himself in that field. At one
time, he had a pure bred wolf and there were no problems. He has had horses, dogs and other kinds of
animals without problems. She feels Mr.
Baker has been harassed in this matter.
She is here in support of Mr. Baker.
Mr. Baker only has a problem with one neighbor.
Steve Hoglin asked for any further comments from the
neighbors.
Debbie Kinnis:
Feels that Mr. Baker is being harassed by the neighbor that has only
lived there for 4-5 years. No one had a
problem until they moved in. Mr. Baker
has done everything to be in compliance.
The animals are secure. There
has never been a problem. There is no
smell or noise.
Mrs. Nelson: He replaced
the fence that was there and made it nicer.
He had to have the fence for his federal permit.
Motion by Rich Keefer to deny the appeal based on
Section 267 A 5B of the NYS Town Law, which gives the applicant 60 days to
appeal. Because the 60 days have passed
we won’t be able to hear this. Motion
seconded by Ang Cimo.
Carried. Ayes-6 Noes-0 Absent-1
Public Hearing for Donald Spitz,
13 Howard Ave. WE, Jamestown NY for a variance to enlarge an existing garage to
1120 sq. ft., which is greater than the allowed 1000 sq. ft.
Mr. Spitz stated the structure would look like a barn. The current garage will not be changed at
all and that is 21’x19’. There would be
storage above the vehicles. It will be
a four-car garage plus storage.
Atty. Wright: The issue
the board is dealing with is that the garage is defined as a structure that
houses up to three cars and does not exceed 1000 sq ft. It is considered to be an area variance
under the NYS Town Law, section 267 B.
One of the things the board must consider is if the structure changes or
meets the character of the neighborhood.
The square footage of the property is a huge consideration of this
board.
Pat Martonis stated that this was submitted to the County
Planning Board and has come back stating they do not have any concerns.
Motion
by Dave Remington, seconded by Pat Martonis to approve Mr. Spitz’ application to build a garage of
1,120 sq. feet.
Denied: Ayes-2 Noes-4 Absent-1
Public Hearing for Anthony Payne, 3334 Fluvanna
Ave., Ext., Jamestown NY for an area variance for a side yard set-back for
construction of a three bay truck garage to replace the existing building. Atty. Crandall Myweide and Engineer Jerry
Erickson represent him.
Atty. Myweide: The current building hasn’t been in use for several years. Mr. Payne is proposing to tear down the building on the front of the lot along with some buildings behind that and build a pole barn in the center and side of the lot. The current building is 20 feet from the sideline, and the requirement is 50 feet. Some of the same footprint will be used and it will not infringe any further on the sideline.
Mr. Erickson: He would be able to store three trucks there, and most weekends, there would be only two trucks in town. Mr. Payne owns tanker trucks and he sells various materials.
Atty. Myweide: He hauls manufacturing petroleum products. Cutting oils and salt. He is not hauling gasoline, diesel fuel, or chemicals other than petroleum products. Mr. Payne resides in the Town of Ellery.
Mr. Erickson: The building will be somewhere less than 50 x 80 feet. There would be no trucks outside to abide by the code. He will use the current well to get water into the structure. There will be drainage requiring an oil separator and the water could be discharged to a ditch. When the trucks will be on Fluvanna Av, they will always be empty. The DOT and DEC both have regulations on this. The setback would be about 100 feet. They tried to position the building so that the house would be visible from the street. The owner of the bowling alley (John D. Waltersdorf, 3316 Fluvanna Av Ext) next door wrote a letter stating he is not in opposition to this project.
Atty. Mayweide: Mr. Payne would follow required State specifications for drainage. The structure is placed on the property so the trucks can drive thru the building and also for safety upon entering and exiting the street.
Karen Hedin, 3340 Fluvanna Ave., Jamestown, NY. She lives next door to the Am Vets and purchased the home in June 1991. The house is completely remodeled. She feels that to demolish the Am Vets building, which is a restaurant and building a truck garage is a violation of the code. It is not being replaced with the same type of building/business. She is concerned about the tankers. She stated that the tankers are not always empty. Former tenants, Richard and Nicole Martin, have seen Mr. Payne draw liquid out of a tanker and use it to start a fire to burn debris from the Am Vets building. That is a big issue to her and her husband. Her personal opinion is that the building is being positioned so that Mr. Payne can continue to park tankers on the property. He has parked the tankers there for 13 months. Randy Woodbury has told him he can’t and Mr. Payne continues to park the tankers there. She has started a petition and will not present it at this time. The neighbors on Old Fluvanna Rd. are concerned. They are especially concerned about well water issues.
Randy Woodbury: In a shopping center zone, any storage of vehicles must be inside the premises.
Mr. Payne has a Land Contract for this property.
Pat Martonis: The Chautauqua County Planning Board found there is no significant impact.
Atty. Wright: The building could fit on the property without an area variance.
Jerry Erickson: Moving the building is not impossible to do.
Atty. Wright: Would you like this board to act on this area variance you have presented, or do you want to take it back to the drawing board or pull your variance request and just go forward with the Planning Board?
Atty. Mayweide asked the board to suspend action.
Motion to suspend action at
the request of the applicant’s attorney made by Kathy Hedstrand and seconded by
Pat Martonis.
Carried. Ayes-6 Noes-0 Absent-1
Motion made to adjourn the meeting at 10:06 PM.
Carried. Ayes – 6 Noes – 0 Absent – 1
______________________________
Pat Martonis, Secretary