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 27, 2007 AT 7:00 PM.
PRESENT: Chairman
Steve Hoglin, John
Merchant, Pat Martonis, Angelo Cimo, Rich Keefer,
Kathy Hedstrand, Attorney
William Wright, Code Enforcement Officer Randy Woodbury
ABSENT: David
Remington
Chairman
Hoglin opened the meeting at 7:00 PM and Secretary Pierce called the roll.
Motion made by
Kathy Hedstrand seconded by Ang Cimo to approve the minutes as amended of the
July 30, 2007 meeting.
Carried. Ayes – 6 Noes – 0 Absent – 1
Attorney
Wright swore in all in attendance that might be giving
testimony before the Board.
Chairman
Hoglin opened the meeting for the continuance of a public hearing for Falconer
Enterprises (Harley Davidson), 1951-1959 E. Main St., Falconer for sign
variances.
David Reid,
Falconer Enterprises, presented new drawing with changes to the signs. They eliminated one of the
Bar and Shield signs on the tower and eliminated the circle that was around the
sign because it added to the total square footage. He showed the Board members new renderings of what the signs look
like now along with some information on the signs they are requesting.
Mr. Reid told the Board
that according to Randy the total square footage of the signs is now 162 SF,
which does not exceed the limit.
Randy explained to the
Board that Mr. Reid’s allowable square footage of 180 SF is based on 1 ½ times
his 120+ foot frontage. Randy reviewed
Section 146-67(4) E (1) that states they are allowed one wall sign. They will require a variance because they
are requesting two signs. The second wall sign is unusual because it is on a
structure that itself has a height variance.
The height restriction for ground signs is 30 feet so it appears to
Randy that the legislative intend for the height of signs in a mercantile zone
would be 30 feet. The code does not
address the unusual circumstance where there is a wall higher than 30
feet. The sign is 45 feet to the top of
the sign. Randy addressed the need for
two variances and suggested the height of the sign be addressed in the motion
as well as the number of signs.
Discussion followed on the
height of the sign and some of the Board members thought that had been
addressed. John Merchant asked about
the clock they were going to have and Mr. Reid said they left that side of the
tower totally blank. Harley Davison
would not allow them to put the emblem in the back of the clock because if they
ever moved the clock would still be there and they would not want Harley
Davison left on the building.
Kathy Hedstrand referred
back to the minutes of October 30, 2006.
The motion was made and seconded to approve the variance for three signs
from the allowed one sign, the total SF not to exceed 308 SF and at a height
not to exceed 40 feet. That motion was denied.
Pat Martonis referred to
the minutes of November 2006 that said Attorney Wright had stated while there
are no height restrictions on the wall sign under the code, there is a height
restriction on the ground sign of 30 feet.
There is no restriction on the wall sign because there is no restriction
on the height of the wall. In this case an area variance was granted for the
height of the building. Mr. Wright thought it was significant consideration of
the Board because the signs proposed were to be on the portion of the building,
which has a variance regarding height.
Attorney Wright said there
was discussion at the time the variance was granted for the height of the
building, which provided the applicant did not want the height just to come in
and put signs on it. Mr. Reid said he
did not remember it was provided they would not put signs on it but it was not
the only reason they put the building that high. The architect wanted the tower there to draw attention to the
building. Mr. Reid did not believe it
was stated they would not put a sign on the tower.
Kathy said she made the
assumption at the time the Board approved the height of the wall that a sign
would go on the tower. Ang Cimo
agreed. Kathy said they could add the
height to the motion.
Pat Martonis reviewed the
minutes of September 25, 2006. Even
though the Board was considering the height of the building and not the signs
at that meeting, the sign was discussed.
Attorney Wright said the signs will be an issue and if the reason for
the height of the tower is for the sign they might want to reconsider the tower
height.
The Board agreed that Mr.
Reid would need two variances, one for the second sign and one for the height
of the sign. Randy said that they can
mitigate having two signs with the fact the total square footage of both signs
does not exceed the code.
Mr. Hoglin asked if there
were any neighbors and there were none present. There was no correspondence to the Town concerning this
application.
Attorney Wright said he
agreed that the Board is looking at two area variances: one for the number of
signs and one for the height. He
reviewed section 267 B of the Town Law, which is the balancing test of the
benefit to the applicant if granted versus the detriment to the health, safety
and welfare of the community in general.
There are five factors to consider.
Mr. Reid said the
eliminated one Bar and Shield, the clock and the circle around the signs
reduced the square footage.
The Board decided to
address the variances separately.
Motion made by
Pat Martonis, seconded by Kathy Hedstrand to approve the variance for Falconer
Enterprises, 951 East Main Street Extension, Falconer, NY, for two signs which
would total 162 SF.
Carried. Ayes – 6 Noes – 0 Absent – 1
Motion made by
Pat Martonis, seconded by Kathy Hedstrand to approve a variance of a sign for
Falconer Enterprises, 951 East Main Street Extension, Falconer, NY, for a sign
which is 41 feet high to the center and 45 feet high to the top of the sign
based on the fact that it is on a wall and is not a ground sign. The applicant
has eliminated some concerns of the Board such as an additional sign and a
clock with the Bar and Shield.
Carried. Ayes – 6 Noes – 0 Absent - 1
Mr. Reid asked
for a copy of the variance to be sent to Harley Davison. Randy said he would take care of that for
Mr. Reid.
Chairman
Hoglin reopened the Public Hearing for a renewal of a Special Use Permit for
SBA Properties Inc., 3108 Eckman Road, Jamestown, NY.
Attorney Wright told the Board they would draft a letter as was directed by the Board at the last meeting and have it prepared and ready to go. This application is still on the table.
Mr. DeLong provided a survey of the property for the
Board, which was requested at the last meeting. He stated it was the original survey from when they purchased the
house. Mr. DeLong agreed that the porch
as existing is 23 feet from the property line.
Randy told the Board that this is a pre-existing,
non-conforming structure.
Mr. DeLong refreshed the Board on what they wanted
to do. They want to extend the porch out 8 feet and to the right 2 feet. He provided pictures and a sketch of the
existing house and porch. Mrs. DeLong
explained that they would just be extending the porch out to about where the
steps now end.
Attorney Wright asked if the stairs are exempt from
setbacks. Randy stated that he would
not count the steps.
Discussion followed on the
extension of the porch and where the steps could be placed. The roof will be extended to cover the
porch. Mr. DeLong stated the steps come
out not more than 5 feet and if they were given an area variance to extend the
porch 8 feet the steps would go out 5 feet from that. Randy said that would
change his answer about the steps. He
thought the steps were incorporated into the requested variance. Mr. DeLong said that Randy had told him the
steps had nothing to do with the distance; it was the top of the porch to the
center of the street. Mr. DeLong said
he could make the steps come to the side.
Attorney Wright said the porch is currently at 19.83 feet and they are
required to be 25 feet so that is already 5.17 feet closer and they want to add
8 feet so that would be 11.83 feet or a 13.17 foot variance. If the steps went out another 5 feet it
would require an 18.17-foot variance.
If the steps could be moved they would require a variance of a little
over 50% of the required setback.
Attorney Wright asked
Randy if he knew if any of the neighbors are currently closer to the front than
required. Randy said there was an
aerial photo that shows that. He said the
one on the corner to the south sits fairly close to the road. There was discussion on if the steps could
go on the side where the driveway is.
Mrs. DeLong stated they would like to do this project this
year.
Pat asked about a
pre-existing non-conforming use.
Attorney Wright said it couldn’t be altered as of right without the
Zoning Board’s permission.
Rick Keefer asked about a
couple other instances where the Board had given a variance beyond the
pre-existing non-conforming. Mr. Wright
said the Board had let them continue the pre-existing non-conforming but not extent
beyond that. He said this has to be
treated as a true area variance and not consider the pre-existing
non-conforming use.
John asked if they would
like to look at moving the steps. The
DeLongs said they want to build the porch and could put the steps on the
side. They also said they could have
the steps cut into the porch.
There were no neighbors
present but the DeLongs had signed letters from the neighbors stating they were
not opposed to the porch.
Attorney Wright said the
Board is looking at an area variance that is covered in Section 146-11 (bulk
regulations), which require dwelling in any residential district to be at least
25 feet from the highway right-of-way.
The Board has reviewed the numbers and looked at the survey map that
shows it is currently 19.83 feet and they are requesting a variance of 13.17
feet. The setback variance is an area variance under 267 B of the Town Law,
which is the balancing test. The Board
did not feel they needed to go over the 5 criteria for granting an area
variance.
Kathy asked if the DeLongs
had a back deck. They do not.
Motion made by
Kathy Hedstrand, seconded by Rick Keefer to approve the 13.17 area variance for
Jerome and Ruth DeLong, 20 S. Hanford Ave., W.E., Jamestown, NY, excluding the
stairs extending off the front of the porch for a front yard setback for a
proposed replacement porch
Mr. DeLong
stated the stairs would be within the 8-foot extension.
Carried. Ayes – 4 Noes – 2 Absent – 1
Steve Hoglin
and Pat Martonis voted no.
Chairman
Hoglin changed the agenda and opened the Public Hearing for Dunn Tire, Inc. for
a sign variance at 685 Fairmount Ave., W.E., and Jamestown, NY.
Mr. Gene
Aversa, Hanson Signs, presented a location map, sketches of the
requested sign and photos of the site.
Dunn Tire is requesting internal illuminated channel letters for the
side of the existing building. They
will be 22” X 442.635” or a total of 48.4 SF.
Mr. Aversa explained that
this sign would be in addition to the permitted sign that could be
approximately 150 SF. He did provide a
sketch that showed the letters that would be going on the front of the
building. The requested sign would be
in addition to that sign. He explained
the client is looking for the additional exposure and more visibility coming
down Fairmount Avenue. Mr. Aversa told the Board there is a current pylon sign
and they will change the sign face of that.
Where is says Fairmount Plaza it will say Dunn Tire.
Randy told the Board that
he arrived at the allowed square footage by taking 1 ½ square feet per linear
foot of the tenant footage use. They
are requesting an additional 48.4 SF second sign.
Steve asked they are
considering seeking a tenant for the other half of the building. Randy told the Board they would be “maxed
out” for signage in the front whether or not it is Dunn Tire or there is
another tenant. They could split the
sign and still keep the SF under the allowed amount so they would need only a
variance for the number and not the square footage. This request if for a
variance for the second sign and additional square footage.
Pat Martonis asked if the
enter and exit signs would have a logo on them and stated she would like to see
the complete sign package. Mr. Aversa
said he could tell the Board about the complete package but only what he knows
at this particular point of time. He
does not know if his client will agree to this even if the Board approves
it. They also have budget constraints.
Mr. Aversa said that the
complete package is:
1) the
one sign on top of the pylon – which is existing signage
2) there
are Enter and Exit signs – they will be replaced with new ones – they will have
a logo on them
3) the
sign that is on the front of the building meets code
4) the
requested sign for the side of the building is what they need the variance for
Pat said she would like to
see the complete set of site plans for the project. Randy said that all of
those issues are currently pending at the Planning Board.
Attorney Wright stated
that exempt traffic signs are not allowed to have any business logo on
them. If they do they are additional
advertising signs and part of what this Board would have to consider. Randy stated that is in 146-67 B of the Town
of Ellicott code. The size of the Enter and Exit signs is within code. Mr. Aversa said this building that is 250
feet back from the road can not be compared to buildings that are only 15’ to
20’ from the road.
Mr. Aversa stated he was
not aware the Enter and Exit signs could not contain any logos. They will have to either remove the logo or
request a variance.
Kathy Hedstrand said the
she realizes this building is unique but the signs of the other businesses
within the plaza are quite a bit smaller.
Mr. Aversa said they purposely designed the sign on the side of the
building to be smaller (22 inches) than the other business signs in the plaza
that are 2 feet tall.
Pat Martonis asked if the
Board had the option to table this application until they can review the plans
after it has been to the Planning Board.
Attorney Wright stated the Zoning Board has 62 days to act on the
application.
Mr. Wright asked Randy if
this project required a referral to the Chautauqua County Planning Board. Randy said it did. Mr. Aversa said he called
and got the timetable for this project from Randy. Randy tried to explain there is a step with the County Planning
Board and he did not have the site plan so he could not refer the project.
Mr. Aversa said there is
no remodeling being done other than a garage door put on the side of the
building. There are no major
alterations being done that would negate the Board from looking at this
request. Randy explained that no final
action could happen until site plan is done and the recommendation is received
from the County Planning Board.
Pat Martonis stated she
wanted to see the architect plans before she could make a decision. John Merchant stated that he feels that this
signage is excessive viewing other business under the same situations that the
Board has looked at. Mr. Aversa might want to take that imput back to Dunn
Tire. Mr. Aversa said the while driving
down Fairmount Avenue with the people from Dunn Tire they saw three or four
other locations that had similar signage on the side of their buildings.
Because of that they felt the opportunity of getting the approval was very
favorable. Another reason was that this building sets back so much further than
any other building that have the similar signage they decided to invest their
time and money to present this variance.
Pat Martonis said that the
Board looked at those on a case-by-case basis. It would be better if the Board had the full set of plans to see
exactly where everything is being placed.
The second tenant will also enter into the decision. Mr. Aversa said that a second tenant in not
in the plans at the present time.
Mr. Aversa asked:
1)
how
the initiate getting approval from the County – Randy said that he will do that
as soon as he gets the plans from R W Larson Architects
2)
if
the client decides to withdraw the application will they get a refund of the
fee -
Attorney Wright said there would be no refund – Mr. Aversa said they
would protest that because they were not given the appropriate information and
if they were they would not have been here – Attorney Wright said that
application for a refund would have to go to the Town Board
Mr. Scolton gave the Board some history on this
property.
1)
this
started in June 14, 2006 - A real estate agent presented a sketch plan to
convert the property to a trucking place of business, parking the company
trucks on weekends and making the residence into an office - there would be
four trucks and three employees - Mr. Woodbury stated at that time it would be
a “change of use” in the Shopping Center District and would at a minimum need a
site plan review and was not convinced that the use was permitted and it could
not be a warehouse - Mr. Woodbury said he would send a letter to Mr. Payne
stating this could not be a use by right and that the Zoning Board of Appeals
could hear his appeal
2)
at
the June 26, 2006 meeting of the Zoning Board there was indication that Mr.
Woodbury had presented a copy of the letter that he wrote to Mr. Payne stating
his use was not permissible because the truck storage is excluded from the
Shopping Center District - Attorney Wright said there were zoning issues since
the business was prohibited in a Shopping Center District and no application
for an appeal had been made by Mr. Payne
3)
on May 9, 2007 Mr. Jerry Erickson appeared
before the Planning Board and presented a sketch plan for a 40’ by 80’ pole
building with 3 bays and 12’ to 14’ high entrance doors- the house was to be
used for an office, tanker trucks hauling gasoline and fuel oil derivatives
were to be parked in the building - there would be 4 to 5 employees - Mr. Woodbury orally stated at that meeting
that this project did fall within the Shopping Center District because all uses
permitted in that district include uses permitted in a mercantile zone - the
trucks would be parked or stored inside of the building and a mercantile zone
permits motor vehicle repair and maintenance facilities - Mr. Scolton said they
disagree with the interpretation that a mercantile district permits motor
repair and maintenance facilities geared just to the applicant vehicles rather
then to the public - he said that the minutes were approved on June 13, 2007,
which is the date they measure the Hedin’s time period (60 days) to appeal.
4)
the
first meeting that Mr. Scolton attended was the Planning Board meeting of
August 8, 2007. Mr. Erickson was again
present with a formal set of plans but he again stated the intent was to have
an office in the residence, the storage of trucks and trailers in the building
and referred to Mr. Payne’s business as a trucking business with at least one
full time employee and the number of tractor-trailers was reduced to two. There would be a wash bay and some minor
repair of his trucks.
Mr. Scolton said it appeared to him that the only
difference between the initial determination by Mr. Woodbury that the use was
not permitted in the Shopping Center Zone and the determination of May 9, 2007
that it was permitted is the fact that the tractors and trailers would be under
cover rather then out in the open. He
thinks that is an improper interpretation.
He thinks it is the use of the entire property is the issue not whether
certain aspects of a permitted use or certain aspects of non-permitted use can
change character by putting a building around it.
Attorney Scolton asked the Board to look at Section
146-25 of the code, which is the purpose clause. It states that the principal use of the land is for commercial
and service uses to serve the surrounding residential districts. In Section 146-27 it says the permitted
uses in the Shopping Center District should be those now permitted in the
Mercantile District (Section 146-33) except those uses not in keeping with the
purpose of this section. Mr. Scolton said the permitted uses are geared
specifically to provide services to residents in the surrounding
community. Attorney Scolton does not
think it can be interpreted to mean that the uses are to benefit a business
that wants to go in there. The business must benefit the surrounding
residential community. He stated that
is the key element that makes the determination of May 9th
inaccurate. Motor vehicle repair and maintenance facilities that include car
washes but it should not be taken out of context because the uses must be for
public to use. Mr. Payne proposes to
wash and repair his own trucks. Mr.
Scolton said he thinks the issue that has to be decided on is whether the
general purpose clause of 146-25 limiting commercial service use to serve the
surrounding residential district governs the mercantile use of all these things
including motor vehicle repair and maintenance facilities. He feels that is the
overall determination the Board needs to make. The Zoning would mean nothing
and would be inconsistent with the purpose clause if they do not consider if
the intended use is for the public. There is a subsidiary issue. One of the reasons that Mr. Woodbury stated
that this was now a permissible use was because the vehicles would be in the
garage. Mr. Scolton read Section 146-28
and explained his interpretation of the section. He thinks the vehicles that
are under cover have to be used for a permitted use in the district.
Pat Martonis asked if the property on Strunk Road
was zoned Shopping Center District.
Attorney Wright stated it was.
Pat stated Boyles is there and they sell and repair trucks for the
public.
Attorney Wright asked to see a copy of the May 9,
2007 Planning Board minutes. He said
that the decision that is being appealed from was Randy’s determination at the
Planning Board on May 9, 2007. He read into the record from those minutes the
reasons for Randy’s determination that Mr. Payne’s project falls within the
Shopping Center District. (See Planning Board Minutes/May 9, 2007 file).
Pat asked what warehousing meant. Randy explained that Mr. Payne would not be
able to take anything out of the trucks and store it in the building. Attorney Wright said that the importance of
that is because warehousing is only allowed in the Industrial District. Mr. Scolton said he did not think it is the
use of the trucks but the use of the premises.
Randy said there were certain considerations. The first was that they wanted to park the
trucks outside and he told them that was not allowed. When Mr. Payne changed
his plan and put the trucks inside then Randy’s opinion addressed the second
plan so there was no inconsistency in his opinions. Plan one was not allowed but plan two as Mr. Payne described it
to Randy, based on his analysis of the code, is allowed. Randy said that it does not say public but
says serve the surrounding residential districts. He said if you interpret that strictly it means 100 feet from the
facility. If someone wanted to bowl at
the Fountain Bowl, would it be a violation if they came from Lakewood. Randy said the serve could be interpreted by
reading a little further. It serves the
district by protecting it, in which traffic and parking can be reduced to a
minimum in order to preserve residential values and promote the general welfare
of the surrounding residential district.
That is what Randy thinks the word serves the surrounding area
means. In section 146-28 of the code it
specifically list some exclusions but is modified in other sections to better
serve the residential surrounding areas.
Randy stated that Boyles just up the road is in a mercantile zone and
allowed stuff outside. If there were
residences nearby that would not be a good service or benefit for those
residences. Randy said his opinion is
if the code intended to completely exclude motor repair and maintenance
facilities it would have listed that in section 146-28 and it is not
listed. Randy said it was mentioned
that Mr. Payne might put hazardous waste in there. There are other laws that are covered by the NYS Uniform Fire
Prevention and Building Code. Mr. Payne
would have to comply with those.
Randy stated he wanted to clarify:
1)
permitted
uses
2)
interior
storage
3)
purposes
4)
the
word serve
5)
what
he thought the legislative intend was
Mr. Scolton said the he did not disagree on some of
Randy’s points but disagrees on the interpretation of serves the surrounding
districts. He stated that putting the
trucks under cover does not change the use of the property. The community does
not benefit by what Mr. Payne does. The purpose clause (section 146-25) governs
all uses in the Shopping Center District.
Jerry Johnson, Past Commander of the Am Vets, told the Board that Mr.
Payne does benefit the area. He is employing people and the products that he
brings to the area do come to the County.
There are no placards on the trucks that say “Flammable” or
“Dangerous”. Mr. Payne mostly hauls
salad oil. He said that Cornell
Building Products should not be there either because we don’t know where they
deliver their products. There is also
Noco Trucking where trucks are parked outside all the time. The truck storage place that is right
next-door with the trucks outside in the back.
This property has set vacant ling before the Am Vets bought it and now
has set vacant for five or six years before they were able to find a buyer. Mr.
Payne asked Mr. Johnson to come because he was on the road and unable to attend
the meeting. He said he did not understand
why other businesses such as the Humane Society are allowed in this
district. Next to that is a garage that
is at least 40’ by 60’ and has been there for years. He does not see that this will be a determent to the Town but
will be an asset to the Town. Mr. Payne
owns three trucks and if the trucks are setting he is losing money so he
certainly does not want the trucks setting.
Attorney Scolton gave the Board members Mrs. Hedin’s
log of when the trucks were parked on the property and 5 photos they had taken
showing the tanker truck and a pickup truck parked outside right up against the
Hedin property.
Attorney Wright advised the Board that the log and
photos, while maybe it gives them insight into the character of the developer,
are not relevant to the determination as to whether or not the Code Enforcement
Officer error in his determination that this business, as described to the
Board, is permitted. Randy said that the one thing that he wanted to point out
was that it was brought to his attention was an activity that allegedly appeared
to be criminal and he advised Mrs. Hedin to made a police report on that. Mrs. Hedin stated that there was not police
report filed.
Mrs.
Karen Hedin, Fluvanna Avenue Ext., Jamestown, NY, said she did not think
when the property sold this would become such an issue. Mr. Payne started to park tanker trucks
there immediately. She talked to Randy
quite often and she was told that the one thing that was excluded in the Shopping
Center District were vehicles being parked outside. Mrs. Hedin said that Mr. Payne had confronted them on February
22, 2007 when he had parked his truck at the end of their driveway and blocked
Mrs. Hedin’s path when she was trying to get out to go to work. He was extremely intimidating. Mr. Payne poked Mr. Hedin with his finger in
the chest and warned him that he would do anything he could to make sure his
business went in and he would do anything he wanted to do to get what he
needed. Mrs. Hedin said she had not
done anything because she was afraid.
Attorney Wright still does not think that is relevant to the issue. Attorney Scolton said that he thinks that
goes to the character of Mr. Payne.
Pat Martonis asked if this appeal was filed on
August 9, 2007. Mr. Scolton said it was
hand delivered to the Town Clerk’s Office on the date stamped (August 9, 2007
at 4:00 PM) on the Notice of Appeal.
Rick Keefer stated he goes by the property daily and
sees the tankers outside. Mr. Payne
admitted to him both on the phone and to this Board last time that this
business was not to serve the public but would be for his own use. Rick feels that the Shopping Center District
is there to be a buffer zone between the Mercantile and Residential. He feels the principal use of the land is
for commercial and service use of the surrounding districts. Personally he
would interpret the code that this business would not be allowed in the
Shopping Center District.
The
Board reconvened at 9:30 PM.
Mr. Johnson had left. Attorney Wright wanted to ask him what rights Mr. Payne had to the property. The Board had heard it was purchase contract and also land contract.
Attorney Wright said the Board is looking at an
appeal from a determination from the Code Enforcement Officer under Section 267
B (7) A of the Town Law. They had
determined that the appeal was made within 60 days of the determination.
Motion made by Rick Keefer, seconded by Kathy
Hedstrand that the decision of the Code Enforcement Officer made on May 9, 2007
that the business of Anthony Payne located at 3328 Fluvanna Avenue Ext.,
Jamestown, NY is a permitted use in the Shopping Center District is hereby
reversed because it does not fit the purpose clause in Section 146-25 of the
Town of Ellicott Planning and Zoning Code.
Carried. Ayes –6 Noes
– 0 Absent –1
Motion made by Rick Keefer, seconded by Kathy
Hedstrand to adjourn the meeting at 9:34 PM.
Carried. Aye – 6 Noes
– 0 Absent - 1
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