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 AUGUST 25, 2008 AT 7:00 PM.

PRESENT:= Chairman Steve Hoglin, Dave Remington, John Merchant, Phillip Pratt, Allan

= Hendrickson, Jean Holton, Attorney Willi= am Wright, Code Enforcement Officer

= Randy Woodbury and Secr= etary Valerie Pierce

ABSENT: Kathy Hedstrand=

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

Motion m= ade by Jean Holton, seconded by Phil Pratt to approve the minutes of the July 28, = 2008 meeting.

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

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

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Chairman Hoglin reopened the Public Hearing for = New Hope Community Church for a S= pecial Use Permit to convert the Celoron Hose Company # 2 station at 315 Hunt Rd., W.E., Jamestown, NY pursuant to Section 146-9 D of the Town of Ellicott Zoning and Planning Code. Mr. Woodbury and Secretary Pierce reported that they had no heard from the Church.

Attorney Wright did update the Zoning Board about the Planning Board meeting. At the August meeting the Church brought in a survey rather than a site plan document.&n= bsp; The Planning Board did direct the Church to obtain some the items th= at were missing and to reappear in September.= The Board did not think that is was sufficient at that time. Mr. Wright said that they did expr= ess they would be at this meeting but may have thought they would need to finish with the Planning Board first. The applicant had added more parking that they thought they might need at the direction of the Zoning Board. They did a build-out of parking on every inch conceivable on the high and dry pa= rt of the property and came up with 29 additional spaces. There was conversation on that they should give this some real consideration because they have even talked about running a bus from Southw= estern School.<= /span>

This application remains on the table.

Carl Lisciandro, 290 Hunt Rd., W.E., Jamestown, NY requested that he be notified of the next meeting. He was informed that the Zoning Board meets the last Monday of the month and the Planning Board meets the second Wednesday of each month.

Mr. Hoglin opened the Public Hearing for New York Wireless RSA No. 3 Cellular Partners= hip d/b/a Verizon Wireless, for the renewal of a Special Use Permit for the existing wireless telecommunications facility at <= st1:Street w:st=3D"on">500 Orchard Rd., Jamestown, NY that was originally granted January 7, 1991 pursuant to Section 146-72 = of the Town of Ellicott Planning<= /st1:place> and Zoning Code. <= /span>

Jared Lu= sk, Attorney with Nixon Peabody, LLP, representing Verizon Wireless in their application dated August 19, 2008 to renew the Special Use Permit for the existing tower located between Idle= wood and Orchard roads in the Town of Ellicott.

Mr. Lusk reviewed the four initial conditions of= the approval:

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>· the permit must be renewed every two years

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>· adequate landscaping must be provided and has not changed

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>· the tower must by used solely for cellular telephone transmissions – that remains accurate except for the County emergency services

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>· the demolition bond was increased to $70,000 in 2006 and with this application the estimated demolition cost remains the same

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>· the only outstanding item with the application was the certificatio= n of structural compliance and Mr. Lusk submitted a certification letter from Armor Tower.

Arm= or Tower stated that they had = done a structural analysis. Attorney Wright said that the code calls for an actual physical inspection. Mr= . Lusk said that a structural inspection was done after the structural improvement= s in 2006 but he could not say that an actual structural inspection was done this year. Mr. Lusk said that he could confirm that before the next meeting.

Attorney Wright reviewed the renewal policy for towers for the new members. He explained that the Zoning Board of Appeals must make sure that the conditio= ns which caused them to grant the Special “Use Permit in the first place exist. He reviewed the standards in Section 146-64 and stated additionally there is in Section 146-72 conditions that are imposed on cell towers. On a bi-annual basis the applicant= has to have a structural inspection, a radio emissions inspection and get a val= ue of the demolition costs so the Zoning Board can make a determine that the demolition bond that was posted with the Town is still appropriate. Mr. Wright said that he thought th= e only issue is the structural inspection. Randy said in 2004 there was a modification to the site plan. In 2006 it was determined that the drainage improvements did not work and Verizon was supposed to address the drainage problem. Mr. Lusk sa= id that according to his notes that he understood that in 2004 they put $5,000= in an escrow account for a drainage study.&nb= sp; He stated that he would have to speak to Mr. Bu= rgdorf concerning their agreement with the Town to have the Planning Board review = the drainage in 2006. Mr. Lusk di= d not have a problem with reviewing to drainage if that was what was they agreed = to but did not think they should have to go through site plan review. Randy said that he did advise Veri= zon there were drainage issues and received a letter from Nixon Peabody (8/14/0= 8) disagreeing with his analysis and telling him he was wrong. Randy’s e-mail to Verizon wa= s on July 30, 2008.

Attorney Wright said that the map he had was dat= ed in 2004 and then there were improvements done. Then they came to the Zoning Board= in 2006 and were approved contingent on working out the water issues. Randy said the rip-rap was put in = after the 2004 renewal and before 2006. It was determined that there were still water issues after 2006 that needed to be dealt with. The applicant did not come back to the Planning Board after the contingent appr= oval of the Zoning Board in 2006. =

There was lengthy discussion on the site plan and Mr. Lusk said they would have been in to address the drainage had they been aware they there was an issue.

Attorney Wright said that he was not sure if the Board had indentified any issues other than the drainage issue. There was an agreement in 2006 that the applicant would come back in and address drainage. At a minimum that h= as to be done. The Zoning Board of Appeals’ job is to make a determination that the location and size of use, the nature and intent of the operations involved, size of the site in relation to it, the location of the site with respect to the existing or fu= ture streets giving access to it, the volume of traffic, the amount of off street parking, etc., shall be such that it will be harmony with the orderly development of the district and that the location, nature, height of buildings, walls and fen= ces, will not discourage they appropriate development and use of adjacent land a= nd buildings nor impair the value thereof.&nb= sp; Operations and connections with any Special Use Permit shall not be = more objectionable to nearby properties by reason of noise, fumes, vibrations and lights than would be any permitted use.&nb= sp; If there is a water issue there is a more objectionable use and the basses to deny a Special Use Permit renewal. Mr. Wright said he did not think t= hat they could go back and require Verizon do a complete site plan review. Because of the contingency on the = 2006 renewal that drainage plan with the Planning Board and Town Engineer is done to the satisfactory of the Planning Board. Mr. Wright stated that unless they could identify other issues that a site plan is pertinent to the applicant is required to determine they should focus just on the water issue.

Vince Ge= race, 381 Hunt Rd., W.E., Jamestown, NY 14701, had concerns with the water flow and the flooding of his property.<= span style=3D'mso-spacerun:yes'> He submitted a copy of a report he created in 2004. He gave a br= ief history of the water problems in this area. He thought that the purpose of this Zoning Board was to review this every two years and address the issues. He had put the Town on notice in 2004. Mr. Gerace stated that = when they put in the road to access the tower it changed the water flow. The only improvements changed the = water flow to drain in the back of the property and that saturated the woods and = so it still floods their property. The Town Highway Department put in some drainage pipe but there was no improvement. Mr. Gerace said = that the tower caused the problem when they put the tower in and they need to address the problem if they want to be a “good neighbor”. He requested that the Zoning Board deny the renewal of this Special Use Permit= .

Marilyn Gerace, 381 Hunt Rd., W.E., Jamestown, NY 14701, told the Board that the correspondence that Randy Woodbury received from Robert Burgdorf dated August 14, 2008. It stated that Verizon Wireless was willing to work with the Town in it’s roll as a responsible corporate citizen as evidenced in part by Verizon Wireless’= ;s voluntary agreement to contribute $5000.00 towards the engineering and construction of a retention pond to serve the area surrounding the tower si= te during it’s 2006 renewal process. Mrs. Gerace said that nothing has b= een done.

Lori Terenna, 369 Hunt Rd., W.E., Jamestown, NY 14701, told the Board members= the water flooded her backyard and almost reached her basement. She said that at least a quarter of Idlewood had washed out beca= use of the force of the water.

Attorney Wright said that in 2004 the ditches we= re filled with rip-rap. This Spring that resulted in Idle= wood having to be barricaded because the water diverted it’s way around and dug right through the road and made it’s own pathway right down and w= ent back into the ditch. They spe= nt several days taking the rip-rap out of the ditches and restoring the road.<= span style=3D'mso-spacerun:yes'> It still is not to its original condition. The improvements that were made in 2004 were not effective. Mr. Wright stated that he owns pro= perty on Idlewood.&n= bsp;

Allan Hendrickson asked why the detention pond w= as never constructed. Attorney W= right said that because attempts to contact the property owner where the detention pond would have to be were not successful.=

Mr. Lusk asked if a call had ever been made to Verizon. He will have an engi= neer review the drainage and complete a report and bring it back to the Zoning B= oard or to the Planning Board.

Mr. Woodbury said that Verizon’s own engin= eer agreed that the tower was built on a postage stamp lease. They control a lot of land around = the tower but there is only enough land around the road to enclose the road and not enough land to address any drainage the roadway causes. The rip-rap idea was within Verizon’s narrow leased right-of-way and the Town engineer agreed tha= t it would probably help, not that it would solve the problem. The rip-rap slowed the water down = but the water carved new channels.

Mrs. Gerace stated that they are the depository = of everything that comes off the hill. Mr. Gerace said they do have photos and will bring them to the next meeting. He said he thought that a requirement of the granting of a Special U= se Permit could not affect the value of surrounding properties. Mrs. Gerace sated that when this S= pecial Use Permit was granted it was contingent on all of the water issues being resolved and nothing has been done. She requested this permit not be renewe= d.

Mr. Lusk said that he is not requesting this be renewed now but that he has the opportunity to have their engineers review = this issue.

Attorney Wright recommended this application be tabled pending approval of a drainage plan by the Planning Board, Town engi= neer and Verizon’s engineer.

Roger Loewenheim, 434 Orchard Road, Jamestown, NY, <= /b>had concerns about the height of the trees. He asked= if the trees will interfere with the transmissions. The trees are higher than the firs= t two discs that are there now. Mr.= Lusk said that their antennas are high enough that is not an issue and explained= the reason for the discs. They ar= e a true line of sight. It is onl= y the trees that are where they are directly pointed that are an issue.

Secretary Pierce stated there was no other correspondence concerning this application.

Motion m= ade by Al Hendrickson to table this application pending the commitment to a draina= ge plan that is satisfactory to Planning Board and the Town Engineer and an ac= tual structural inspection.   =

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Jean Holton asked if there could be an end date = for the drainage plan. Attorney W= right said that if the Board tables this they have the opportunity to take it from the table and act on it. Randy would prefer to have this tabled because he feels he can work with Nixon Peabody and Verizon. Mr. Lusk= will have a drainage engineer and a drainage report done pending scheduling.

Jean Hol= ton seconded by motion made by Mr. Hendrickson.

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

Attorney Wright told Mr. Lusk that they should appear before the Planning Board before they come back to the Zoning Board = and if for any reason they want him to appear at the Zoning Board the Town will notify them. Mr. Wright said that he is not looking for an application for = the Planning Board but a letter to the Planning Board to be scheduled for this review as a referral from the Zoning Board. Mr. Wright said that Randy could h= elp with that. =

Chairman Hoglin opened the Public Hearing for Kevin Jensen, 3935 Ross Mills Rd., Falconer, NY, = 14733 to expand and modify one dwelling to make two dwellings on his lot and to r= eview the Code Enforcement Officer’s determination of pre-existing non-conforming buildings and associated limitations pursuant to Section 146= -7-A and 146-13-A of the Town of Ellicott Zoning and Planning code.

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Mr. Jensen told the Board that he had started to expand and the Code Enforcement Officer stopped him. He explained that he was building = a sun room with clear plastic roofing and did not know he needed a permit for a porch. The existing house is 24’ by 114’. The bedroom was brought in years a= go and is starting to settle. Mr. Je= nsen wants to move it out back for a guest room.

Discussion followed on what Mr. Jensen would lik= e to do. Attorney Wright asked if = the building he was moving would be a self-sufficient building with a bathroom, water and cooking facilities. Mr. Jensen said that it would be similar to a summer cottage. He has had the property for about 8 years and is trying to clean it up. &= nbsp;

Randy stated that this was a pre-existing non-conforming building built around 1875.= He told the Board Mr. Jensen would require two variances. One variance needed for the two dwellings on the property and one for the setback in the front. Mr. Wright asked if an unheated, no plumbing, not cooking facility shed is a dwelling. The bedroom is currently connected= to the house. If separated the r= oom he wants to move is 16’ by 12’.&n= bsp; Randy stated that without a bathroom it could not be occupied. Randy also said that if the bedroom was removed from the house the minimum square footage under the code is 900 SF. The front porch was enclosed a couple years ago because of the snow. Attorney Wright said th= at the addition would not meet the setbacks. Randy said that he could only issue a permit for the addition if the Board granted an area variance for the pre-existing as well, but because it= is in the right-of-way the Board cannot grant a variance. Randy had a highway map that he estimates to be from about 1940 but could be as old as 1920. The front porch is in the right-of= -way on that map. When the County = appropriated more land and changed the road they acquired land from Mr. Jensen’s predecessors. The road is onl= y a 49 ½ foot.

Phil Pratt told the Board that Mr. Jensen has do= ne tremendous work on the property and has put a lot of time and effort into i= t.

Attorney Wright said they should look at the iss= ues and see how they can solve them.

the issue of modification to a building that is prior non-conforming – in the code it under 146-63 – if there is= a use of property that has been legal at one time and something happens = to change the use no longer acceptable it gets “grandfathered”= ;- the Town’s rule is if that if it continues to be used for that non-conforming use and does not have a break in use for more than one = year it is allowed to continue – there are several ways to break a nonconforming use – one is if you fail to continually use it for= a period of a year and another is if there is some loss or damage to the property you cannot rebuild it – you can maintain a nonconforming use (put on a roof – new walls) but cannot expand it – sin= ce this house is in the right-of-way you cannot add to it – Mr. Wri= ght does not think the Board can resolve the non-conforming use issue and = are without authority to say they can expand it – if Mr. Jensen takes off the part of the house that is in the right-of-way (that would requ= ire a survey) and then the B= oard could give an area variance (setback variance) and Randy could grant a building permit – the Board should make a decision as to whether they would be inclined to grant a variance for the structure if the po= rch was removed – Mr. Jensen would have to get a survey

Randy asked if Mr. Jensen could made a foundation out back and moved the whole thing – he also suggested to Mr. Jensen to build= a completely new house –

moving the bedroom will make the whole residence under the allowable size of 900 SF – the Board can grant an area variance = to allow that but as soon as you separate the bedroom from the rest of the house it cannot be occupied without facilities – Mr. Wright woul= d suggest leaving it where it is and Mr. Jensen agreed

Attorney Wright said the only issue would then be if the Board would consider granting a retrospective area variance for front line setback if Mr. Jensen were to bring in a survey map that shows that th= ere was anything between the line and the actual base part of the dwelling – He asked if Mr. Jensen were willing to go out and get a survey – there should be records in the search if the County actually t= ook property – Mr. Wright said the issue is what is there today regardless of if the County moved the road or not
this is a County road and there was a referral made to the Cou= nty Planning Board but the Town did not receive a response as of today

Jean suggested that a survey might be available through the Co= unty that Mr. Jensen would be able to find and have to go and get a new sur= vey - Randy has a copy of a copy map that is dated 1986 done by Don Long - Mike Masters has now taken over his business – Mr. Jensen might = be able to get a copy of the survey that was done then<= /li>
Attorney Wright said if the property line is in the front of t= he house the Board cannot grant a variance – if it is 3 feet he ask= ed the Board members if they were willing to grant a 27 foot variance and open this up for additional building

Mr. Jensen was going to try to get a copy of the 1986 survey <= o:p>

the Board needs a referral from the County Plannin= g

Attorney Wright said that the Board is no longer considering t= he area variance for two dwellings

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Motion m= ade by Al Hendrickson, seconded by John Merchant to accept the withdrawal of the a= rea variance for two dwellings on the property.

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

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Motion m= ade by Jean Holton, seconded by Al Hendrickson to table the setback variance pendi= ng the referral from the County Planning Board and the survey from Mr. Jensen.=

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

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Randy told Mr. Jensen if he were going to hire M= ike Masters that he could sent a copy of the County map to him as it would be helpful.

John suggested that Mr. Jensen have conversation with Randy about the structure. There have been a lot of issues about snow load. He should find out = if the building will be feasible.

Motion m= ade by Phil Pratt, seconded by Dave Remington to adjourn the meeting at 8:55 PM.

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

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Valerie Pierce, Secretary

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