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 NOVEMBER 9, 2007 AT 7:00 PM.

PRESENT: Chairman Steve Hoglin, Dave Remington, John Merchant, Angelo Came, Pat Martonis,

Rick Keefer, Kathy Hedstrand, Attorney William Wright, Code Enforcement Officer

Randy Woodbury and Secretary Valerie Pierce

ABSENT: None

Secretary Pierce called the roll.

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

Chairman Hoglin reopened the Public Hearing for Dunn Tire for a sign variance at the Fairmount Plaza, 685 Fairmount Ave., W.E., Jamestown, NY.

Randy Woodbury said that the representative from Dunn Tire had called and they want to downsize their sign request as much as possible. They will not know the absolute minimum until they do the building conversion and move in. That should happen sometime in December. They are requesting this be tabled until the January meeting. The application is already on the table but at the applicants request will be tabled until January.

Mr. Hoglin reopened the Public Hearing for Christopher Swanson, 2365 Camay Lane. Jamestown, NY for a variance to construct a second garage.

Mr. Swanson submitted the items that the Board requested at the last meeting. He provided a survey and plot plan and a sample of the material that will be used to construct the garage. He told the Board the garage would be burgundy with white trim. He is using this material because it is much safer because of fireproofing. It is the same material that Fastenal and Cusimano have on their buildings on South Work Street, Falconer, NY.

Mr. Swanson has downsized the garage by two feet. He will remove the existing shed. There will be no driveway to the additional garage and the doors will be on the opposite side of Mr. Vine’s property line.

Attorney Wright reviewed the criteria for this application and told the Board this is an area variance under 267 B for the number of garages as well as the overall size of the garages. By right in a residential district you are allowed one garage for up to three cars with a total of 1000 SF. Attorney Wright stated that this is exempt from SEQR as a Type II action.

Secretary Pierce reported there was no correspondence on this application. There were no neighbors present.

Mr. Swanson listed other second garages similar in size in his close neighborhood:

1) Brian Butera on Marlow

2) John Greenwald on Buffalo Street Ext.

3) Steve Madonia at Buffalo and Willard Streets

He also listed approved second garages from previous minutes that the Board has approved:

1) Kevin Saff

2) Russell Cusimano

3) James Huckelbery

Motion made by Pat Martonis, seconded by John Merchant to approve a second garage for Christopher Swanson at 2365 Camay Lane, Jamestown, NY that is 26 feet by 38 feet made of a fireproof material and a tin roof.

Carried. Ayes – 5 Noes – 2 (Remington and Hedstrand) Absent – 0

Chairman Hoglin opened the Public Hearing for Michael Corey, 3100 Oak Ridge Circle, Jamestown, NY for a variance to construct a second attached garage.

Mr. Corey gave the members a hand out that showed the current residence. He plans to build a 20’ by 28’ garage that would be equivalent to a one and one half car garage. He wants to use it for equipment (a tractor and some smaller equipment). The garage will match the garage and will look just like the current garage except where the down stairs window is the door will go in. It will match the vinyl siding and architectural roof shingles. It will have a simple interior and will have a block foundation, a concrete floor with a floor drain and fully pipe drainage. Mr. Corey stated he was well inside the required boundaries for the area. He said that his original two-car garage is small (21’8” by 24’) and he said it is hard to get two vehicles in that garage. Mr. Corey provided correspondence from his neighbors, John Short, Mark Tarbrake and Don Vanstrom. He got a verbal approval from the other neighbor that adjoins his property.

Rick Keefer said that the size of the property makes a difference. Mr. Corey owns over 10 acres. Randy stated that if Mr. Corey was to reduce the size of this garage too much he might have to consider a shed in addition to the second garage and he would not have to appear before the Zoning Board. The Board can put in a condition that an additional shed would not be added. Mr. Corey said that would be acceptable to him.

Attorney Wright stated the Board is looking at the same law (267 B of the Town Law) for this variance that they looked at with Mr. Swanson. It is an area variance for the second garage and the total square footage and is exempt from SEQR as a Type II action.

There were no neighbors present at the meeting and no other correspondence directly to the Town.

Motion made by Ang Cimo, seconded by Pat Martonis to approve the variance for Michael Corey, 3100 Oak Ridge Circle for a second garage that matches the house with the condition that an additional shed will not be added to the property based on the granting of this variance.

Carried. Ayes – 7 Noes – 0 Absent – 0

Mr. Hoglin opened the Public Hearing for Robert Holcomb, 31 Frederick Blvd., W.E., Jamestown, NY for a backyard setback variance for a replacement garage.

Mr. Holcomb told the Board that his old garage that was built in the early 1900’s is in disrepair. It is leaning and his homeowners insurance has approached him and stated that because of its disrepair they would no longer cover it.

Mr. Holcomb said that with the new garages being a standard depth of 24 feet, in order to stay five feet away from the property line, it would put the garage into his deck and limit rear access into his house. Mr. Woodbury had asked him if could move it further to the north. Mr. Holcomb said he could but the reason he does not want to do that is because he would have to redesign his whole property. He would have to fill in the section of property that is to the north of the driveway. There is a two-foot drop off and he would have to install a new driveway and the cost would be very prohibitive.

Mr. Holcomb handled out an outline of what his plans are and why he feels the Board should grant the variance. There are power lines directly behind the current garage and so there is already a fire hazard. If he is granted the variance it will move the garage an additional 6’ to 8’ away from the power lines. Mr. Holcomb stated the existing shed that is sitting on another lot that he owns would be removed. Attorney Wright said that is not a problem and happens all the time where buildings are built across the original lot lines. The new garage will be 24’ by 40’ and will be used as a two-car garage, a small workshop and storage area. It will have two overhead doors, one will be 18’ by 7’ and the other will be 8’ by 7’. Mr. Holcomb said they have no storage in the house.

Kathy Hedstrand asked if he had considered reducing the size of the garage to possibly 24’ by 36’. Mr. Holcomb said the distance left to right is not an issue. If he were to eliminate a portion on the one end he would not be in line with the driveway.

Mr. Holcomb provided letters signed by his neighbors, the Smiths and Lori Barrett, stating they were in favor of the new garage. He said that he did not talk to the neighbor to the north of him because it is a rental property. Mr. Holcomb said if he had to fill, the drainage might flood the neighbor’s property.

Randy stated that the letters of approval from the neighbors in the rear are important because they are accepting a restriction on their land for setbacks.

Attorney Wright brought up maintenance of the utility poles because there would not be enough room to get to the utility poles for any repair. The Board has discussed a policy on maintenance easements to be two feet plus one foot for every four foot on building height from the property line in order to erect a ladder.

The Board requested:

1) something in writing from the neighbors saying that they consent that however far from the

property line Mr. Holcomb is, any building that they put there would have to be ten feet minus Mr. Holcomb’s distance

2) a maintenance easement from the neighbor, which is a recorded instrument that allows Mr.

Holcomb to go unto their property in perpetuity

Mr. Holcomb stated the insurance company did renew his policy but in another year he would have to have this garage done. He plans to start in the spring and so if the Board tabled this for another month it would not be a problem. Mr. Holcomb will notify Mr. Woodbury when he has his items completed.

Motion made by Pat Martonis, seconded by Rick Keefer to table the application for Robert Holcomb, 31 Frederick Blvd., W.E., Jamestown, NY, for his request for a backyard setback for a replacement garage based on the need for more information, including the maintenance easement and the neighbor’s letters of consent.

Carried. Ayes –7 Noes – 0 Absent - 0

Chairman Hoglin opened the Public Hearing for Dawn Thompson (Dawn’s Canine Rescue), 3710 Ross Mills Rd., Falconer, NY 14733 for a renewal of her Special Use Permit to operate a canine rescue.

Attorney Wright stated this was a one-year renewal of the Special Use Permit that was granted under Section 146-15, which permits a kennel in a residential agricultural district by Special Use Permit. The permit was done in accordance with the criteria in Section 146-64. The criterion for renewing a Special Use Permit is the same for granting the permit.

Pat Martonis requested that the Board review the original motion that was approved for this Special Use Permit. Pat read the original motion from the minutes of the Zoning Board meeting of October 30, 2006.

The Board went through the conditions as were stated in the motion:

1) the land agreement (as identified on the map by Steven Carlson, licensed land surveyor)

between Margaret Young, Mr. & Mrs. David White and Mr. & Mrs. Wayne Thompson

goes through – the Town has a copy of the survey map that was presented a year ago – Both

Dawn Thompson and Margaret Young were present but Mrs. White did not have any

representation - Attorney Wright said that he spoke to Attorney Doug Spoto (Attorney of

the Whites) this morning and the property agreement that was contemplated last year has

not gone through and there has been no recording of deeds - Dawn Thompson told the

Board that agreement had not been signed because it had been changed so many times –

Dawn did provide a copy of a new land agreement from Attorney Goodell that all parties

had agreed to –

Marilyn Nelson, Willard St. Ext., Jamestown, NY, asked Attorney Wright is she could be sworn in. Pat Martonis said that she would like to hear from the people involved in the land agreement first.

Margaret Young, 3722 Ross Mills Road, Falconer, NY, told the Board that she did not have anything to do with the land agreement.

Kathy Hedstrand asked if there was anything in writing that explained the land transfer. Dawn said that it would all be on the deed.

2) the second point was that the Planning Board session goes on – Attorney Wright stated the

Planning Board did meet and review the plan within the requirements that were imposed by the Zoning Board and approved the site plan – this was based on land transfers that did not take place - the drainage issues were to be addressed – Dawn said that was addressed by the

Health Department in a letter to the Town – Attorney Wright said that condition was

fulfilled

3) the third point was that all the roofed kennels contain all of the rescue animals – Dawn said

that they do except for the small ones in the house, which was agreed to

Mrs. Young asked what the ones were on the porch and by the swimming pool – Mr. Hoglin told Mrs. Young the Board would discuss that later.

Pat Martonis asked Randy Woodbury if he had been out there to check and see if the kennels contained all the rescue animals. Randy said that he was there before the last meeting and anything that appeared to be quarantined did not seem to be outside. He did not go inside of the fence but there were animals in the kennels and he did not go near the house so he did not know about any dogs there. He wanted to examine the two parcels that were going to be traded. There was one dog on the far side of the fence that appears to be not caged or fenced but tied to a chain with a doghouse. There were no dogs in the area that will be conveyed to the Whites.

Attorney Wright said the motion specifically referred to roofed kennels and asked what the ultimate resolution was concerning the roofs. Dawn said that each kennel has it’s own roof. The common area is not roofed. It is fiberglass roofing, the tarps are gone and you cannot see over the fence so there is no view from the Whites. Pat said she thought that there was to be one roof. Randy said that that was discussed at the Planning Board and stated that there was to be one roof. If there were a new plan Dawn would have to appear before the Planning Board to revise that plan. Randy said that they were hoping that Dawn could get a grant for the fence. Randy would not have granted a fence permit because Dawn does not yet own the property.

John Merchant asked Dawn were to build the one roof and if she eliminates doing rescue if the deed would go back to the Whites’? Dawn said that the property would still be hers.

4) the quarantine area is enclosed and out of the view of the neighbors

5) the animal free zone has stayed without dogs or kennels - Dawn stated there is nothing on

that property - Randy said that while he was making his inspection the animal free zone was

free of all animals

6) the soundproofing and fenced in walls that have been stated to be on three sides is to be

completed and contain reflective material - Dawn stated that has been done.

7) if one or both of the barns, which are sight barriers, were torn or burned down another barn

would be constructed in a timely fashion - Dawn stated that nothing has happened to either

barn

Motions made by Rick Keefer, seconded by Ang Cimo that the Board enters into executive session to seek advise of council pending possible future litigation at 8:25 PM

Carried. Ayes – 7 Noes – 0 Absent –0

The Zoning Board reconvened at 8:45 PM.

Chairman Hoglin stated that the Board would be directing questions to Dawn and neighbors directly impacted. He asked everyone else to refrain at this time.

Pat Martonis said that she wanted to address the items that specifically pertain to this renewal. She did not want get back into areas that have nothing to do with the items the Board has discussed.

Pat stated:

1) the barns are all there – all the neighbors agree

2) the sound proofing has been completed

3) the animal free zone that was agreed upon by Dawn, Mrs. Young and the Whites – both Dawn and Mrs. Young said that animal free zone does not have any animals

4) the quarantined area is enclosed and is out of the neighbors view – Mrs. Young said that is was not completed until 5/28/07 except one area in the back facing the Whites’ where they go in to feed the dogs – Dawn said they agreed to that because there is a door there – the door was to be keep open to clean the kennels – from Mrs. Young’s view there may be an area that might need to be closed in – Mrs. White was not there to ask

5) roofed kennels contain all rescue animals – Mrs. Young said there are animals tied up on Dawn’s porch, in the front of the house and between the porch and the swimming pool there has been one dog tied up all summer – Mrs. Young said there was an average of four dogs – Dawn stated that there are three dogs, one in the front of the house, one on the porch and one need the pool – Mrs. Young said that if any of the dogs outside bark all the dogs inside of the fence bark – Beryl Rhodes Emley stated that there are three dogs, one that someone tied to a tree and left there, one on their porch, which she thought was a pet and one by the back yard between the house and the pool – Beryl has been down to help Dawn with the dogs – Dawn stated the dog on the porch is hers, the one out front got tied there about three weeks and the one near the pool she can’t keep in a kennel and will be going to another rescue within two weeks

Dawn stated that it is typical that people leave dogs tied outside her house. There are no signs but people have either been to her rescue or get her address off the Internet. One day she had seven dogs tied to her front trees. She tries to get the dogs into the rescue area as soon as she can get their surgeries and shots done but she has been sick and had some setbacks that have not allowed her to get that done within five days. Dawn stated that you couldn’t put a dog in the quarantine area that are not neutered or spayed. Dawn said she has 17 dogs in the kennels now. That number is down from 37, which is what she had when she last appeared before the Board.

6) if the original determination of the Planning Board was for one roof Dawn would have to

go back to the Planning Board for a modification to her site plan – Dawn said that

according to Randy she would not be able to build the roof until The Whites sign the deed -

Randy issued the fence permit with a co-application from the Whites and Dawn – Mrs.

Young said she understood that there was to be a pavilion type roof over the kennels –

Randy stated that was correct – Dawn said she would go back to the Planning Board for a

modification of the site plan – Pat asked if Dawn received any monetary support for the

fence or the roof – Dawn stated she did not receive any money

7) both barns are still there

8)

The property transfer has not been done – Dawn said that there was to be a written agreement between her and the Whites and she has not had an opportunity to meet that condition - she received the letter that she provided to the Board from Attorney Goodell just two days ago

Pat Martonis asked Dawn if she had come to see Randy about this deed. Randy said that he was aware that the deed had not been signed but also knew the parties were still negotiating and had not reached an impasse. Neither side indicated they were not going to sign the deed. Dawn stated that she has made the Town aware of everything that has gone on. Randy stated he has received communication from the Whites and from Dawn almost continuously. He has not tried to analylize that because both parties had Attorneys representing them.

Attorney Wright said at this point the Board has issues of non-compliance with the terms and conditions imposed on the original permit. They are at the one-year point so the original permit is expiring. The Board has to determine whether or not they will renew the permit. The items of non-compliance are:

1) the roof on the kennels

2) all the rescue dogs are not kept in the kennel area

3) there has not been a property transfer

Mr. Wright’s recommendation would be that the Board not renew the Special Use Permit without the property transfer. There are still other issues. It was specified in the Zoning Board’s motion that Dawn has a full roof over the kennels. The Planning Board tried to make sure she had a plan in compliance with the Zoning Board. Randy said that it was his recollection that the specification for the pavilion type roof was done at the Planning Board. Dawn said when the property was first brought in the roof was to be attached to the barn over the kennels. The diagrams that were provided to the Zoning Board from Attorney Goodell were pictures of a full size roof behind and attached to the barn. The individual roofs were shown when they had agreed to move the kennels into a fence. Dawn did not think that it would have made sense to propose a roof over a fence. She feels that she is in compliance by building $2500.00 worth of roofing. Dawn also told the Board that bringing the roof down to the kennels actually reduces the sound.

Mrs. Nelson asked the Board if they were going to allow anyone else to go on record in regards to this matter. Chairman Hoglin asked her to please wait one moment.

Randy said that in the minutes of the October 2007 meeting the Board talked about roofs. Dawn came back for the November 8, 2006 meeting and at that point she told the Board they were going to have individual roofs on the kennels. As that discussion pursued the resolution being that was not acceptable to the Board and a 30’ by 50’ pavilion style roof was agreed upon - Dawn said that she was waiting for the deed so that she could ask the Zoning Board for permission for the individual roofs and then she could take it back to the Planning Board for site plan. Randy stated if she were doing something other than the 30’ by 50’ pavilion style roof, Dawn would need permission from both the Zoning Board and the Planning Board.

Attorney Wright said that if Dawn was going to ask the Zoning Board for a modification to change from the single roof to multiple roofs she was going to have to provide information as to why - Dawn said that she could do that.

Dawn told the Board she did not think she should be responsible for someone coming and tying a dog to her tree. Attorney Wright suggested she call the animal control officer. Rick Keefer said the he thought that was what the quarantine area would be for. Dawn asked if once she calls the dog control officer her responsibility is done. The Board told her she should call if anyone ties dogs on her property without permission.

Attorney Wright said since it sounds like they are close on the deed, the Board could give it a two week adjournment or into the next month’s meeting so Dawn could be there the Board could do that.

There was a discussion on when the next meeting would be. The Board decided that they would postpone the November 26, 2007 meeting until December 10, 2007 and not have a meeting at the end of December because of the holidays.

Attorney Wright asked Dawn to get a copy of the deed to him as soon as it is recorded. Dawn was told that she could change her application for the Zoning Board and incorporate a proposed change but that she would need to submit a new application for the Planning Board. Randy suggested that she get that in for the December 12, 2007 meeting. Mr. Wright said that the Zoning Board approval always comes before the Planning Board.

John Merchant said that the other part of this for Dawn is to take care of the two dogs that are not in compliance and if anyone else drops dogs off she needs to call the dog control officer. Dawn stated she would call the Town’s dog control officer.

Motion made by Pat Martonis, seconded by Dave Remington to table this application until the December 10, 2007 meeting.

Carried. Ayes – 7 Noes – 0 Absent – 0

Motion made by Pat Martonis, seconded by Dave Remington to adjourn the meeting at 9:28 PM.

Carried. Ayes – 7 Noes – 0 Absent – 0

_____________________________________________

Valerie Pierce, Secretary