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 OCTOBER
27, 2003 AT 7:30 P.M.
PRESENT: Chairman Al Suchar, David
Remington, John Merchant, Steve Hoglin, Angelo Cimo,
Patricia Martonis, Attorney William Wright and Code Enforcement Officer
Randy
Woodbury
ABSENT: Kevin Saff
Chairman Suchar called the meeting to order at 7:30
P.M. Secretary Pierce called the roll.
Mr. Suchar reopened the public hearing for Elizabeth
Nord for a use variance to operate a ballet studio at 29 S. Chicago Ave., W.E.,
Jamestown, NY.
Attorney Wright reminded
Ms. Nord that she had been sworn in before and that would continue.
Ms. Nord told the Board
she now owns the property but it is not livable and she is trying to secure the outside before bad weather and than
work on the inside.
She understood from the
last meeting she attended there was a possibility if she could limit the number
of students and classes she could be granted a special use permit instead of
applying for a use variance for the ballet studio. She would like to be granted the special use permit limiting the
number of students and classes and if needed she could return to the Board for
a use variance next year.
Chairman Suchar told Ms.
Nord that the ballet studio just doesn’t fit into the definition of a home
occupation. He said she needs a use
variance and that is very hard to get.
Mr. Suchar said he did not think Ms. Nord was prepared for that type of
application and asked if she would like to go ahead with the special use
permit.
Mr. Suchar asked how many classes a day, how many days a week and
how many students per class. Ms. Nord stated she would have two classes, two
days per week with 2 to 3 students.
Dave Remington was
concerned about parking. He said the parking would be on the highway
right-of-way. Ms. Nord said she feels
in the beginning she could fill her classes with students from the neighborhood.
OCTOBER 27,
2003
PAGE TWO
Attorney Wright addressed
the sections of the code that pertain to this application. He stated this is a residential zoned
dwelling. Under section 146-9 of the code you can have a special use permit for
a home occupation. Home occupations are referred to in two places in the code.
The first is section 146-5, which defines home occupation. Home occupations are
further addressed in section 146-71 which states that the Zoning Board of
Appeals shall not issue a special use permit for a home occupation unless it
first determines if it is a customary use and will be conducted exclusively by
the persons residing in the dwelling unit. It lists examples and states that no
home occupation may occupy more than 25% of the total dwelling space, or 500
square feet, whichever is less. Attorney asked Mr. Woodbury is the Fire and
Building code is more or less restrictive concerning the percentage or square
footage than the Town code. Mr.
Woodbury stated they are the same.
Attorney Wright recalls
the Board members did not feel they could consider this a home occupation if
the number of students and classes were what she first asked for. The Board would consider a limited use as a
home occupation if Ms. Nord would be willing to cut the number of students and
classes.
Mr. Suchar asked the
square footage of the house and the store.
Ms. Nord stated there was 1500 square feet in the house and 1300 square
feet in the store. Ms. Nord said the dilemma
was that the business is not really a home occupation within a house and no one
will buy the store front as a residential dwelling.
Mr. Remington asked if she
was living in the house and Ms. Nord said it needs so many repairs she is not
living there at the present time but will live in the house.
Steve Hoglin asked what
had been in the storefront previously. There had been print shop and a home
grocery and an ice cream shop. Attorney
Wright stated it had a lapse for many years.
Mr. Wright said the Board
had discussion staggering the classes to help with the traffic. Mr. Remington said the Board has in the past
specified no on street parking.
Discussion followed and Ms. Nord said she could get the cars off the
street and park them in the driveway and in front of the storefront.
Pat Martonis asked how the
limitations could be enforced. Attorney
Wright explained that it becomes self enforced by the neighbors. The permit is renewal able every two years
and if there is anything wrong the neighbors will come in and let the Town
know. If there are complaints mid-year the code enforcement officer will take
care of them.
Attorney Wright told the
Board they needed to determine if this would be a customary use. This is not
exempt from SEQR so Mr. Wright suggested that the Board read in the EAF
comments made on the form done for the Photography Studio and determine this
does not change the environmental review.
OCTOBER 27,
2003
PAGE THREE
The EAF was not available
so the Board filled out Part IIC of the EAF for the ballet studio noting this
project would not have any significant environmental impacts.
Motion made by
Pat Martonis, seconded by Dave Remington to make the declaration that there are
no significant adverse environmental impacts and authorizing Chairman Suchar to
sign the form.
Carried. Ayes-6 Noes-0 Absent-1
Motion made by
John Merchant, seconded by Steve Hoglin to approve the special use permit for
Elizabeth Nord for a dance studio at 29 S. Chicago Ave., W.E., Jamestown , NY
limiting the parking to two off street vehicles and limiting the students to a
maximum of three students per class with two classes per day for two days a
week. Ms. Nord will stagger the time between
classes by at least thirty minutes.
Carried. Ayes-6 Noes-0 Absent-1
Chairman Suchar reopened
the public hearing for Mark and Leslie Ferraro
(Jamestown DairyQueen) 870 Fairmount Ave., Jamestown, NY for a use variance for
a wall sign and area variances for signs and setbacks.
Randy Woodbury reminded
the Board members he had received a phone call requesting this application be
tabled for two months and the applicant would be ready for the November
meeting.
Mr. Suchar reopened the
public hearing for Forecon, LLC, 1890 E Main
St, Falconer, NY for a variance for set back for a garage.
Mr. Ron
Johnson said they needed setback variances for the storage
building they are constructing. The neighbors had attended the last meeting and
objected to the setbacks but were now satisfied and had no objections with the
building.
Mr. Johnson had attended
the Planning Board meeting and they determined that this project would be
exempt from site plan review.
The County Planning has
reviewed this project and determined there should be little adverse countywide
of inter-municipal effects. There were
no neighbors present.
The property is zoned
mercantile and the building is less than 7,000 square feet. Attorney Wright
stated under 16NYCRR 617.5 individual lot line variances are exempted from
SEQR.
Motion made by
Steve Hoglin, seconded by Pat Martonis to grant the area variance for Forecon
LLC for a setback down to 4 feet on the east side and 8 feet on the north side.
Carried. Ayes-6 Noes-0 Absent-1
ZONING BOARD
OF APPEALS
OCTOBER 27,
2003
PAGE FOUR
Chairman
Suchar opened the public hearing for Dr. Bill Toms and Dr. Richard Lisaciandro
(Jamestown Pediatrics) for a setback variance for a parking lot at 816
Fairmount Ave., W.E., Jamestown , NY.
Charles Hall, Esquire, Attorney for the Doctors, told the Board they are requesting a setback variance in that the requirement is for a 30 foot setback from the property line to allow for paving of the parking lot. They are asking that the setback requirement be reduced to 8 feet on the northerly boundary of the parking area. They have appeared before the Planning Board and will go back on November 5th for the final approval in hopes of getting it done before the asphalt plant closes so they can have it in before the winter.
Mr. Hall told the Board members that there have been concerns from the neighbors. Mike and Sharon Giambelluca have concerns with the drainage. Rex Tolman is the engineer for this project and has banked the drainage away from the Giambelluca property and there will be an 8 foot landscaped area that will be banked away and the water will go into the catch basin in the middle of the parking lot.
The Planning Board suggested a “STOP” sign be put on the Alleghany Street side of the parking lot. The Doctors have no objection to that. The paking lot will be 200 feet long. There are woods on the north end of the paper street protecting the Giambelluca property.
Chairman Suchar asked Mr. Hall if he had any plans to present that would give the Zoning Board a visual presentation. Mr. Hall had a sketch of the property that the Board reviewed. Mr. Wright asked if the parking lot would be 25 feet from Alleghany Ave. Mr. Hall did not know what Mr. Tolman had planned. Mr. Woodbury had not received any plans from Mr. Tolman.
The property is zoned neighborhood business. Attorney Wright reviewed section 146-24 F, which states the parking lot shall be at least 30 feet from the front property line and 25 feet from the side and rear property lines. Mr. Tolman is showing the westerly line of the parking lot a couple feet from the property line. They are asking for a variance for the northerly line to be reduced from 25 feet to 8 feet. Mr. Wright also reviewed section 146-24 C concerning buffer zones. The buffer zone shall be 20 feet deep from the adjacent property line and consist of trees, shrubs, and hedges or a combination thereof. The Board can vary those distances to something less.
Mike Giambelluca, 30 N Alleghany Ave., Jamestown, NY, told the Board members he had a problem with the water that goes into the road and comes back into his driveway and washes it out. Mr. Wright told Mr. Giambelluca that would be a Planning Board issue and asked if the Planning Board could intercept that water and put it into the ditch would it remedy the situation.
Sharon Giambelluca told the Board they received notice that 30 feet of their property would be used for a buffer area and that they had never agreed to that. They have a problem if the paving goes right up to their property. They also asked where the dumpster would be because it gets emptied at 5:30AM
ZONING BOARD OF APPEALS
OCTOBER 27, 2003
PAGE FIVE
Attorney Wright told the Giambellucas that was also an issue for the Planning Board.
Rev. Msgr. Joseph M. Dowell, Pastor of Scared Heart Church, read a letter into the record that stated, as owners of properties boarding the paper streets known as First and Second Streets in West Ellicott, the Church objected to the easement granted to the Doctors. They are not waving their rights to have access for ingress and egress over any or all parts of First and Second Streets in West Ellicott. He showed the Board a property map showing the properties that the Church owns.
Attorney Wright explained that the applicants are building at their own peril because the Town can at any time come back and create a street. Attorney Hall said that there will be an 8 foot buffer on the northerly side and the other 42 feet will be paved.
Mr. Woodbury suggested that the Giambellucas meet with Mr. Shellhouse, Rex Tolman and himself before the Planning Board on the 5th of November.
Mr. Suchar stated that this is for a n area variance and the Board must satisfy the criteria for an area variance. They have also required a detailed drawing with the exact variances being requested. They would like to see how many parking spaces and the location of the spaces on the drawing.
Attorney Wright reviewed the criteria for an area variance. Under section 267 B of the Town Law the Board can grant a variance as long as the applicant meets the following criteria taking into consideration the benefit to the applicant as weighted against the health, safety and health of the neighborhood. The benefit to the applicant has been established as the ability to park more cars in order to facilitate patient traffic. There are five criteria that the applicant must meet:
1) whether there will be an undesirable change to the neighborhood
2) whether the benefit can be achieved by some other method
3) whether the requested area variance is substantial
4) whether the proposed variance will have an adverse effect on the neighborhood
5) whether the alleged difficulty was self-created
Pat Martonis asked if the project needed to go to the County. Mr. Woodbury stated it had gone to the County Planning and they determined this project is of primary local concern.
Mr. Suchar said that this could not go to vote because the west boundary was undetermined. Mr. Wright said they could request a west boundary and tell Mr. Tolman he would have to design to whatever variances have been granted. Attorney Wright said the Board would typically see plans and has the responsibility to grant the minimum variance needed.
Mr. Suchar asked if the applicant wanted the Board to carry this to vote with the information they have. Attorney Wright asked Mr. Hall what they wanted the west boundary variance to be. Mr. Hall said 2 feet.
ZONING BOARD OF APPEALS
OCTOBER 27, 2003
PAGE SIX
John Merchant asked if there is a deadline for the paving time. Attorney Hall said they have a date, which he thought to be around November 18th, but that could be checked on by calling the plant. There was a suggestion that maybe they could gravel instead of pave the parking lot until spring when the plant reopens. Attorney Wright stated that would give them time to provide the required plans knowing the plant would be closed and the Board could vote on it next month.
Attorney Wright swore in Dr. Bill Toms and Dr. Richard Lisciandro.
Dr. Toms told the Board that the new parking would be for office staff so the other areas of parking can be used for patient parking. It would be acceptable to have gravel since it will be for employee parking. He understands Mr. & Mrs. Giambelluca’s issues and would not do anything to hurt the community. They need to know the issues such as the dumpster in order to remedy them.
Ang Cimo asked how many parking spaces they designate for their office staff. Dr. Toms told the Board they have 30 employees. They currently have 55 spaces. Mr. Cimo asked if they could fit the parking spaces into a smaller space. Dr. Toms said he had not seen the drawing. Attorney Wright said this is the problem the Board has in not seeing the plans. They might not even have to come before the Zoning Board if they could change the setbacks. The applicant needs something more definitive.
Dr. Lisciandro said it is not only a problem with the closing of the plant but that the men have to be able to work on the parking lot.
Attorney Hall said the applicant prefers not to go to vote and will meet with the Planning Board on November 5th. In the meantime they will get drawings from Mr. Tolman.
Mrs. Giambelluca stated that they know the Drs. need more parking and do not want to make it difficult but just want to resolve some issues as property owners.
Mr. Suchar said this application would be tabled for one month. Attorney Wright suggested that they get in touch with Mr. Tolman and make sure he has the plans for the Planning Board on the 5th of November.
Mr. Giambelluca asked if he decided to build a garage at that end of his property would he have the right to access it off the paper street. Attorney Wright said he did not know the answer. Mr. Woodbury said they could probably get an easement from the Town but because of the conditions he might be more inclined to come in from Alleghany Avenue.
Chairman Suchar informed the Board that his term expires on December 31, 2003 and he will be resigning from the Board of Appeals as of that date. They will have to vote for the a Chairman at the next meeting.
Motion made by Steve Hoglin,
seconded by John Merchant to adjourn the meeting at 8:50 PM.
Carried. Ayes-6 Noes-0 Absent-1
_____________________________________
Valerie Pierce, Secretary