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 NOVEMBER
29, 2004 AT 7:30 P.M.
PRESENT: Chairman
Steve Hoglin, Dave Remington, Kevin Saff, Angelo Cimo,
Patricia Martonis, Richard Keefer, Attorney William Wright, Code
Enforcement Officer
Randy Woodbury and Secretary Valerie Pierce.
ABSENT: John Merchant
Chairman Hoglin called the meeting to order at 7:30
P.M. Secretary Pierce called the roll.
Attorney Wright swore in everyone that would be testifying at this public hearing.
Chairman Hoglin reopened the public hearing for New
York RSA No.3 Cellular Partnership d/b/a Verizon Wireless to renew their
special use permit for the wireless tower west of Jamestown between Idlewood
Drive and Orchard Road.
Robert Burgdorf, an attorney with the law firm Nixon
Peabody, addressed the Board on behalf of Verizon Wireless. Sandra Brooks, the
project manager and David Weisenreder, the civil engineer for Verizon Wireless were
in attendance.
Mr. Burgdorf gave a brief history of the special use
permit and stated they had submitted the necessary information to the Town
pursuant to the code. He understood that except for the drainage issue the
materials were satisfactory. The Town
asked Verizon to investigate the drainage issue and try to determine the cause
and to what extent that Verizon might be responsible. They prepared, using the civil engineering firm of Costich
Engineering, a drainage report and drainage improvements plan. They found that they needed to do some
remediation work that needed to be done.
One of the drainage culverts had been crushed and some of the drainage
ditches were filled in.Verizon submitted the drainage improvement plan and they
will perform the recommendations in the plan. They will return the flow to the
pre-development flow. The Town has
indicated they might want to remediate even more than that but Verizon does not
recognize any responsibility beyond the condition that existed before the
construction. They have agreed to help
out. Should the Town want to continue
to investigate the drainage, Verizon has offered to pay for the civil
engineering that would be involved in a drainage pond. They hope to get the approval tonight
because they are running out of time for the remediation work that needs to be
done prior to the spring thaw.
Mr. Burdorf asked if the Board had any
questions. Kevin Saff asked if there
were problems before the pre-development conditions. Attorney Wright said that Mr. Gerace stated at a prior meeting
that the water flow on Idlewood Drive increased to the point of being a problem
at the approximate time that
NOVEMBER 29, 2004
PAGE TWO
the tower was put in. Kevin asked how the Town assisted in this. David Weisenreder said there was a meeting
between Verizon civil engineers and the Town engineer and the County engineer
to look over the plan. The remediation plan
will take it back to pre-development levels.
Pat Martonis asked why the retention pond was not
built. Mr. Weisenreder said that the
Town might want to build the pond but it would not be Verizon’s
responsibility. If the Town or
residents want to go beyond that Verizon is willing to pay for the civil
engineering.
Discussion followed on the drainage, contours, water
flow levels, the ravine, and the calculations.
Mr. Woodbury said that the Town and County engineers
had some reservations with this solution.
Mr. Weisenreder told them he had to solve the problem within the
easement rights that Verizon has from Media One. The pond would have had to be built on someone else’s property.
Mr. Weisenreder had told Mr. Woodbury that if he were not constrained by
available property he would build a detention pond just west of the north end
of the Verizon driveway. That is still
a possibility if the Town talks to Media One and get them to donate some of
that land to the Town and/or County.
Sandra Brooks said that Verizon had no rights to do improvements on
someone else’s parcel but they could find a way to pay for the engineering
services as an offer of good faith. That way they can contribute and not get
involved in ownership. Mr. Burdorf said
that it is important to point out that the drainage pond is the Cadillac of
jobs. The engineer’s conclusion is they can still return it within the easement
area to pre-development levels. Verizon
would like to get this drainage plan started now. The Geraces have received copies of the plans.
Steve Hoglin asked what improvements above and
beyond the culverts already in there would be proposed. Mr. Weisenreder said that they are proposing
regrading the drainage soil along the upgrade side; currently the culverts have
been filled with sediment and are relatively shallow. They have rip rap line
channels along the steeper sections to prevent erosion through those areas, the
rip rap outlets sections on the culvert pipes to help dissipate the flow in
storm water energy to help spread it out in to more sheet flow. They picked up some of the drainage closer
to the west end bringing it over to an existing drainage soil that is almost
immediately north of the tower, trying to keep as much flow to the west as
possible and away from the Idlewood Drive right-of-way.
Sandra Brooks told the Board that the County was
supposed to be helping maintain it as part of their agreement with Verizon but
with snow removal and bad weather and co-locaters going up there with their
equipment the trucks or snowplow goes off causing damage. It needed to be replaced. Steve Hoglin asked
if the culverts were being reinforced to take care of future truck traffic or
heavy equipment. Mr. Weisenrader said
they could take a look at that. Steve asked about the elevation of the drain.
Mr. Weisenreder showed the Board the contours on the plans.
NOVEMBER 29, 2004
PAGE THREE
Attorney Wright asked Mr. Burdorf what the level of
commitment for the engineering would be.
Mr. Burdorf said that the quote from Costich Engineering was $4542.00
and Verizon is committed to that amount.
They would like a time limit on the commitment perhaps a year’s
expiration.
Attorney Wright said Mr. Woodbury recommended a
one-year renewal (due again in July 2005) for this special use permit. That
would put the Town in a better position to make a determination whether
additional detention was needed. Mr.
Burdorf said that would depend what the end result would be. If the levels were back to pre-development
levels, Verizon would not see any responsibility for any flooding still
occurring. Randy said he suggested a one-year permit to postpone some of the
details and the application for July 2005 would be a regular application. Meanwhile, the Board could continue to work
on this drainage issue. Ms. Brooks
asked what the Town is planning to do for their part of the drainage. She remembers that the neighbors thought it
was part of the Town’s responsibility for the drainage. The county’s
responsibility was to maintain the road.
She said Verizon has acted in good faith and are willing to do the
improvements and are willing to pay over $4500 so the Town can pursue the
pond. She would like to get the
two-year approval. Mr. Woodbury said
that he would be looking for a piece of land that someone would donate to the
Town or County so they can build the retention pond. Discussion followed on a one or two year permit. Ms. Brooks asked
what if they made the offer for the engineering cost good for two years. The
Board could make it a condition of the two-year approval to hold the money for
two years.
Kevin Saff said the Board was really looking at an
eighteen-month renewal at this point.
He had concerns about the maintenance.
Verizon does not have any problem with a condition that requires it be
properly maintained. Kevin asked if there could still be a water problem even
if the levels were at pre-development levels. Mr. Weisenreder said there could
and they will look at other options.
Ang Cimo asked how they know the pre-development levels. Mr. Weisenreder
explained how they figure the levels.
Ang Cimo asked if the culverts would be larger. There will be six instead of three culverts
and they will be 12 inches.
There were no neighbors present. Attorney Wright asked Rex Tolman, the Town
engineer if he wanted to add anything.
Mr. Tolman said that he thought that they had agreed that this was not
the design that would work. The
upstream culverts they have will do the same thing they are doing now. There is no protection and the culverts will
fill up.
Rick Keefer asked what the maintenance schedule is
for Verizon. Ms. Brooks said she did not think it is a set schedule but done as
needed. David Weisenreder told Rex they
were going to have rip rap at the end sections. Rex said that would help but he feels it did not work well even
before there was not good maintenance.
He does not think this is a good design for the area if you have to
check it after every storm. Ms. Brooks
asked what they could do to improve the plan.
Mr. Woodbury asked about upsizing the pipes. Changing the 12” to a 24”
pipe they could get four times the capacity at about the same cost. Mr. Weisenreder said they would look at the
watersheds that are tributary to each pipe and size them accordingly. Mr. Tolman said he would like to see how the
flow north of Orchard Road impacts this project. Mr. Weisenreder said he would provide Mr. Tolman with the updated
drainage
NOVEMBER 29, 2004
PAGE FOUR
calculations, which include the Orchard Road area.
Attorney Wright said because of the changes they
should have a short form environmental form.
The Board continued with the next item on the agenda
so that the applicant could fill out the short form EAF.
Chairman Hoglin reopened the application for the
public hearing for Signs and Sales by Peterson for sign variances for Starbucks
at 944-956 Fairmount Ave., W.E., Jamestown, NY 14701 on property owned by
Lamparelli Properties, Inc.
The Town received a letter that advised them that
Starbucks has been put on hold and they withdrew their application and
requested a refund of the $200.00 fee. Attorney Wright said it is not the job
of the ZBA to deal with fee issues. The
Town Board takes care of the fees. The
initial publications and mailings were done but the applicant has not appeared
before the Board. He does not feel the ZBA needs to make any
recommendation.
Mr. Hoglin reopened the public hearing for The
Rotary Club of Jamestown for a sign variance on property owned by Yaw
Oil Co., Inc., on North Main Street Ext., Jamestown, NY.
Mr. Mark Olson, representing the Rotary Club, told the Board they are
interested building and donating to the City of Jamestown a “Welcome to
Jamestown” sign. They are looking for a
centennial project and thought it would be a nice thing to promote the City as
well as other areas outside the City.
There are still other obstacles but they would like the approval of the
Town. The sign will be only about 10 feet from the City of Jamestown. They had investigated and there is no place
in the City of Jamestown for this sign.
Mr. Woodbury said the Board has to determine what
kind of sign this is. It might be
considered an off-premises sign. Mr. Olson said they discussed this two months
ago and there will be no advertising of any type on the sign. There will be one number that people can
call and they will be happy to make it just not-for-profit community events. There will be no commercial advertising.
Ang Cimo asked the size of the sign. Mr. Olson said the sign will not exceed the
general dimensions that are on the application (16 feet long, 6 feet high and 2 feet wide). They would turn the sign over to the City of
Jamestown because they have agreed to maintain it. Yaw Oil will grant a right-of-way agreement to the Rotary Club of
Jamestown.
Pat Martonis asked about the problem with the
possible new motel. Mr. Olson said if
the Patals put the motel there and want an access road they would have to
remove the sign. Pat feels that the
sign would be advertising for other clubs. They would like to put the Rotary
emblem on the sign but are willing to leave it off it is an issue.
NOVEMBER 29, 2004
PAGE FIVE
Rick Keefer asked if the Rotary has a standing
before this Board. Attorney Wright stated the Town has a letter from Ted
Bogdan, owner of the property on North Main Street Ext. stating there is a
proposed right-of–way agreement. Rick asked if the application was sent to the
County Planning. Mr. Woodbury said he
did not sent the application to the County but it just involves a phone call to
the County Planning.
Mr. Woodbury suggested Mr. Olson talk to the Town
Board and partner with them. If Ted Bogdan grants an easement to the Town of Ellicott
instead of the Rotary Club the Town could allow a sign to be built. It could be a three-way partnership between
the Town of Ellicott, the Rotary Club and the City of Jamestown. Mr. Olson said he saw no advantage to the
Town. Mr. Woodbury said that just defeated his solution.
Attorney Wright went over the legal issues. This application is for an area variance on
Mr. Bogdan’s property due to the number of signs. It comes in under section 146-67(4) E of the code which talks
about permitted signs in mercantile and shopping districts. There are already variances for the number
of signs and the height and square footage of signs on this property. If you go to the definition section of the
code it describes off premises advertising as a service or activity that is
offered or conducted elsewhere other than the premises upon which the sign is
located. Mr. Olson did not think this
“Welcome to Jamestown” sign falls within those parameters. Mr. Wright said the Board has to determine
is if they are inclined to grant additional area variances for both the number
and square footage for the parcel and they need to determine if this is an
off-premises advertising sign. Mr.
Olson said they are not still sure they will put the sign there but they wanted
to have things in place if they decide to spend the thousands of dollars it
could take to construct the sign. They
have sized it back because of the possibility they might have to move the sign. Attorney Wright stated section 146-67 (3)
states that all signs not expressly permitted are prohibited. Mr. Olson said the Rotary Club helps many
different municipalities in southern Chautauqua County. He hopes there is a 65% chance the sign will
be put on this property but there are many obstacles.
Pat Matronis asked if the Board already made Mr.
Bodgan go from three signs to two. She cannot approve the Rotary Club emblem on
the sign. Mr. Olson said they were
willing to leave the Rotary emblem or informational phone number off the sign.
Mr. Olson said the sign will be
approximately 10 feet from the property line.
Chairman Hoglin requested a motion to approve or
deny this application based on the determination if this is an off-premises
advertising sign. Attorney Wright
stated the sections of code that are applicable are 146-67 (3) A, which talks
about prohibited signs and then the definition of an off-premises sign under
146-66.
Mr. Olson said there is already a City of Jamestown
sign located in the Town of Ellicott and did not know if there was an issue with
that sign. Mr. Woodbury said that was a sign placed by the Department of
Transportation within their right-of-way and not subject to the Town’s
jurisdiction. Attorney Wright said
there are exempt signs under the Town code.
Mr. Olson said there is no commercial gain for
anyone and it helps the community overall.
Chairman Hoglin returned to the application for Verizon.
Attorney Burdorf said the short form EAF had been
completed and they want to offer potential conditions that would take into
account the Town engineer’s concerns.
1)
Verizon
Wireless implement the drainage improvement plan as submitted to the Town
with
the following additions
a)
the
pipes be an 18 inch minimum and perhaps larger if water shed warrants ( this
would be at the discretion of the Town engineer)
b)
the
plan be modified so that pipe # 3 coming up Idlewood (that collects the bulk of
the water) definitely be 24 inches and have a trash rack
2)
regular
maintenance be preformed to keep the newly implemented system as designed
3)
the
engineering condition as e-mailed to the Town attorney be changed from one year to two years.
The Board continued with the short form EAF. Attorney Wright stated this project does not
exceed any Type I threshold in 6 NYCRR, Part 617.4 and will not receive
coordinated review.
The Board reviewed Part II C noting:
1)
the
primary intention of the action is to resolve drainage and flooding problems
2)
this
project will not have an impact on the environmental characteristics that
caused the
establishment of a critical environmental area.
3)
there
could likely be controversy related to the potential adverse environmental
impacts if
the conditions are not met
Motion made by Kevin Saff, seconded by Rick Keefer
to approve the renewal of the special use permit for Verizon Wireless to expire
July 2006 with the conditions listed above.
ZONING BOARD OF APPEALS
NOVEMBER 29, 2004
PAGE SEVEN
Carried. Ayes-6 Noes-0 Absent-1
Chairman Hoglin opened the public hearing for Gerald
A. & Lois S. McConnell, 60 School St., W.E., Jamestown, NY for a special
use permit for a home occupation.
Mr. McConnell told the Board they operate a
home-based business for Echo Quest. It
is similar to Shakee or Pampered Chef or Avon.
Their product (air and water purifiers, vitamins and enzymes) is for
improving the health of the person.
Most of their business is done over the phone or occasional parties at
their home. There is no signage except
for a magnetic sign on his car. They
have a small office space in their home with a computer and have some products
displayed. They do not bring people in
as a general rule to show them their products.
They will take the unit out and display it for about seven days.
Mr. Hoglin asked Mr. Woodbury for some history. Randy said that his opinion was this is a
home occupation based on the code. He
found out about the business from a newspaper announcement that the McConnells
were to receive some award and the address for the business was listed as
School Avenue. He called and told them
they needed some action of the Zoning Board.
It was his understanding that they understood the process, the reason
why and that they were willing to apply for the special use permit.
Attorney Wright asked if he had made a home
visit. Mr. Woodbury said he has not for
this instance but would like to see the home office. Mr. McConnell stated there is not any part of the home that is
designated strictly to this business. There would be 5 to 10 people at their
occasional home parties. There would be
no more cars then for any other meeting at their house. Their products promote their business,
Solutions for a Healthy Living. They
have been involved with this business for three years and have not had more
than two or three parties. Rick Keefer
asked if there was anyone else running the business out of his or her
home. There will not be any other
people running the business. The
office space is 68” x 68”. Ang Cimo
asked if they store the products. They
stated they do not keep a big inventory because they get them delivered within
a week. They have products delivered UPS once or twice a month.
Kevin Saff told the McConnells that the Board
received a letter that has been signed by 24 residents of School Ave. He wanted to know what would cause 24
neighbors to sign a letter that they would not like this home occupation.
Mrs. McConnell stated that Echo Quest is a national
company and a top company with air and water purification. The only way they
sell is a home-based business and there are thousands of people across the
country selling Echo Quest. It is not a
storefront business. Mrs. McConnell
does not understand why people that sell Pampered Chef or Avon do not have to
get a home occupation permit.
Al Suchar, 26 School Ave., W.E., Jamestown, NY, addressed the Board and said
he was alarmed because they wanted to run a home office. Their history in the neighborhood of doing
things that upset
NOVEMBER 29, 2004
PAGE EIGHT
other neighbors is well documented. The neighbors signed a petition to attest to
that. They do not want any kind of
business in the neighborhood. Their
primary concern is the frequency of vehicles that would be in the area. When the McConnells ran their garage sales,
that were quite frequent, the neighborhood was filled with vehicles and it
posed quite a problem. They are afraid that is going to reoccur with this
business. Mr. Suchar said he believes
that the office space is small but the garage is full of product that adds to
the home office usage. He feels they
are using more than 25% or 500 square feet.
Mrs. McConnell said they have lived on School Avenue
for 29 years and at the most have had 2 garage sales a year. This past summer they did not have any
garage sales. Attorney Wright said this
is not about garage sales and will direct the Board not to consider anything
regarding garage sales. This hearing is
about the home occupation.
Ken Lasker, 49
School Ave., W.E., Jamestown, NY, stated he lives across the
street and diagonally from the McConnells.
He said that only reason Mr. Suchar brought up the garage sale issue is
an issue of credibility. He has lived
in the neighborhood for 12 years and it is a terrific neighborhood with a large
number of children living there.
Generally all the neighbors get along great and this is a tight
community. It is a great area to raise
a family. They moved there because they
wanted a quite street to raise their kids.
The only reason the McConnells are not having garage sales is because
the Town put a stop to them. It was not
an easy thing to stop. When the
neighbors got the notice for this hearing people were upset. They do not want to have businesses or home
occupation business on School Avenue.
They do not want extra traffic. People are upset because of the history
and they do not want to establish a precedent on that street to allow a home
occupation. Mr. Lasker said that they are operating without a permit. Mr.
Lasker stated that the only reason this came about is because of an ad in the
paper that listed their home address as the business address. He does not know what this Board’s position
is if people are in violation of code.
The neighborhood is united in not wanting to open this door and allow a
home business on School Avenue.
Attorney Wright asked Mr.
Lasker if the first time he learned of this activity going on in the house was
the ad in the paper and when he received notice from the Town for the Zoning
Board. He asked if he could tell before
receiving the notice that they were conducting a home occupation. Mr. Lasker said there always seem to be more
cars than usual in their driveway and when the garage door is up there are
always boxes piled up.
John Johnson,
Homestead Ave., W.E., Jamestown, NY, does not feel they need
a home occupation in this neighborhood.
He would like to see a stop to this before there are others that want
home occupation businesses in the neighborhood.
Evelyn Suchar,
26 School Ave., W.E., Jamestown, NY, has raised two children on
the street and always felt comfortable that they could play in the
neighborhood. She feels that the
business will increase the traffic on the street. The traffic is predictable
for the most part. If you have business
traffic you introduce a whole new element into the neighborhood with people who
are not from the area.
They had a break-in at
their house a few years ago. If you
introduce outside traffic you show them a neighborhood that has possessions
that are worth checking out. She
reiterated what the others have said about past history. She has questions
about the products, how many there are. She feels it was dishonest not calling
the neighbors and telling them what they are doing and ask how they feel about
it.
Mr. McConnell asked if
they were selling Avon would they be here.
They are not going to get more than two trucks a month. The neighbors refer to the garage sales and
Mr. McConnell stated it is an absolute lie that they had more than two at a
time for two days each, one in the spring and one in the fall. They did have
some flea market stuff. The code
enforcement officer (before Randy) came out and checked out the garage sales
and did not see a problem with them.
They did not know they were doing anything wrong. When Randy brought up they were doing
something wrong, they talked to a lawyer and reached an agreement that as long
as they did it in conjunction with the street sale it was not a problem. They
were concerned with the traffic.
Mrs. McConnell said she
feels their names are being besmirched.
Mr. McConnell said they did not know they needed a permit. They know of eight or nine people in West
Ellicott that are Echo Quest dealers.
They must also be in violation.
Pat Martonis said that she
would like to see this tabled until next month and have Randy go out and check
the site. Ang Cimo asked if this is the
McConnells only income. They are retired
teachers and enjoy selling and feel that are doing a service because of the product
that they sell. That is why they list
their business as “Solutions for Healthy Living”.
Attorney Wright said he
would review the code unless Pat wanted to ask the Board to move her issue and
have Randy get additional information then there would be no reason to go over
the code. However, in going over the
code part of it is requirements for square footage and whatever. Pat would like the applicant to come back to
the next meeting with records that would show deliveries and that would clear
up that issue.
Motion made by
Pat Martonis, seconded by Rick Keefer to table this application until the next
meeting for a visit by Randy Woodbury and more information from the
McConnells.
Mr. Lasker wanted
to make a comment that the McConnells have made a lot of comments that were
flat out not true and he suggested the Board talk to Randy Woodbury about what
these people have done at this house.
They have tried to run a business for a decade and the Town finally shut
it down. They have run a business out
of their home and he cannot speak forcefully enough to ask the Board to deny
this tonight. The neighborhood is
universally opposed to these people running a business out of their house. There is no support. Everyone is upset and delaying it, if that is
what the Board chooses to do, he is not sure everyone is going to come back
again. He wants it on the record that
people are really upset about this. He
asked the Board to please deny this.
Mr. Woodbury said since this motion involved him he
informed the Board that the 27th of December and the 3rd
of January are Town holidays. He will
not be here on the 20th of December. He thought if he needed to give
the Board members a report he should be here.
Ang Cimo said he had not heard from the neighbors if there is an issue
with parking on the street. Mr. Suchar
said that was an issue in the past but it goes back to the garage sales. When you have large vehicles delivering it
limits severely what you can do. Mr. Suchar strongly urged the Board to
consider section 146-64 B and C in their decision as well as section 146-71
A.
Mr. McConnell admitted they did put flea market
stuff with their garage sale but did not know that was doing anything wrong. He said that no one would have known they
were doing anything with Echo Quest except for what was in the paper.
Rick Keefer said he would like to get the
information from Randy before they make a decision. Mr. Suchar said they should cease the business until the Board
makes a decision. Mrs. McConnell feels
that if they are asked to stop then the Town is discriminating against
them. There are a lot of people in West
Ellicott as well as people in Frewsburg.
Attorney Wright said they are welcome to turn in anyone in the Town of
Ellicott if they want to. It is their
desecration. Mrs. McConnell said she
would not do that.
Mr. Lasker asked if the neighbors would be notified
of the new date for the meeting. They
would not normally be notified again.
He asked if Mr. Suchar could be notified as to when the next meeting
will be. The Town Clerks office will
notify Mr. Suchar.
Kevin Saff asked how many residents occupy School
Avenue. On the notification list there
were 21 residents on School Avenue.
Dave Remington wanted to say you cannot compare
other municipalities with Town of Ellicott.
They have different laws and zoning laws. Other people in the Town of Ellicott who have come for home
occupations follow the guide lines of the Board with regards to the % of the
home and restricted parking. The Board is just following the code. Mrs.
McConnell checked on the Internet to see if anyone has been in for a home
occupation for Echo Quest, Avon or Pampered Chef. She found no one.
Carl Baggiano, 50 School Avenue, Jamestown, NY, stated that the garage is full and they have two cars that
are in their driveway and wanted to know how can anybody else park in their
driveway.
NOVEMBER 29, 2004
PAGE ELEVEN
Chairman Hoglin said he has a motion and second to
table so he wanted a vote.
Carried. Ayes-6 Noes-0 Absent-1
The Board still has to determine when the next
meeting will be.
The Zoning Board took a brief break at 10:00
P.M.
Chairman Hoglin opened the public hearing for J. B.
Crosby for a special use permit for a home occupation in his home at 2327 Camay
Lane, Jamestown, NY.
Mr. Crosby said he has filed with the County for a
business permit to start a business out of his home. He gave the Board a brief
background history and told them his business is PC Projects. It includes digital archiving, creative projects
and other computing services. He has a home office of about 100 square feet. He
intents to make house calls to clients but may have occasional client come to
the house. He has a long driveway and
parking in the front of the 2 ½ garage and in the turn around drive. His house
sits in the middle of 2 acres so the house is on a hill and there will be no on
street parking. He has talked to a
couple of neighbors since the notices went out and has not heard about any
issue with the neighbors. He would doubt
they would even know there is a business going on. He does not anticipate any increase of traffic flow of any
kind. He provided brochures for the
Board to look at. He will be the only
one running the business. He does not
have any signage and will comply with the code if he does put up a sign. He will advertise in the Penny Saver and
Post Journal. If it grows he will move
to a storefront. He will not sell any
items except custom-made items.
Rick Keefer asked how he found out he needed a special
use permit. Mr. Crosby said that in
his business reading it said to check with your Town. When he checked with Randy he found out he
needed a special use permit. There were
no comments from neighbors.
Attorney Wright reviewed the requirements under
section 146-64 C, which sets the standards and section 146-5 (definition) and
section 146-71 A that limits home occupations to customary uses and ones that
will be conducted exclusively by persons residing in the dwelling. It cannot
occupy more than 25% of the total dwelling space for 500 square feet. The Board must determine if the use do or
does not fit within the home occupation and the Board has the authority to
impose whatever conditions that they determine would be meaningful in order to
make a home occupation fit within the code.
Motion made by Dave Remington, seconded by Pat
Martonis to approve the application of J.B. Crosby, 2327 Camay Lane, Jamestown,
NY for a special use permit as outlined by the Board for two years.
Carried.
Ayes-6 Noes-0 Absent-1
Mr. Woodbury tries to remember to notify the
applicant but the applicant has the burden to come in for the renewal.
ZONING BOARD OF APPEALS
NOVEMBER 29, 2004
PAGE TWELVE
Chairman Hoglin opened the public hearing for H.H.
Rauh Paving, Inc. for a fence at 2209 Allen Street6 Ext., Falconer, NY.
Attorney Wright briefed the Board that the Planning
Board has been working H.H. Rauh a/k/a Kingsview for several months on the
permit approval for a asphalt plant which will be located on the corner of
Allen and Dow Streets (the old Sterlingworth site). The Planning Board picked up on that the fence will be 10 feet
high and the code limits the height of fences in the Town to 6 feet without a
variance. They want a 10-foot chain
link fence with a security wire on top. Mr. Rex Tolman, engineer for the
project, stated it will have 2 strands of wire on top. The Planning Board
advised them they would need Zoning Board approval for an area variance to
construct the fence.
Mr. Woodbury said the code also requires the fence
be in the character of the neighborhood.
He determined that 2 strands of barbed wire in an industrial zone met
with the character of the neighborhood.
Mr. Tolman showed the Zoning Board members plans of
the site and reviewed the project with them. He told the Board the fence is for
security because they are a non-union contractor. The fence will be around
the whole site. The fence is a standard
chain link fence with sliding gates ten feet high with 2 strands of barbed
wire.
Attorney Wright stated that taking the fence from 6
to 10 feet requires an area variance under 267 B of the Town Law. It is the balancing test with the five
criteria that weights the benefit of the applicant as opposed to the determent
of the health, safety and welfare of the community as a whole. He reviewed the five criteria for the Board
under 267 (B) 3. The area variance is exempt under SEQR.
Kevin Saff asked if the barbed wire is concertina
wire. Mr. Tolman said it is just barbed
wire. This is a safety issue as well. They do not want kids running in
there. The fence towers 30 feet off the
ground. Kevin Saff asked why the
concrete plant next to it does not need a fence. Mr. Woodbury said because of
the more competitive nature of their business a security fence was added.
Mr. Hoglin said the only condition he would like to
add is that it would be maintained.
Kevin Saff asked if this is a seasonal
operation. Mr. Tolman said they
anticipate 180 days of operation a year.
Attorney Wright asked if they had their DEC permit. Mr. Tolman said it had been publicly noticed
about three weeks so they have another week for the 30-day waiting period.
Motion made by Ang Cimo, seconded by Rick Keefer to
approve H.H. Rauh, 2209 Allen St. Ext., Falconer, NY to construct a 10 foot
fence exceeding the 6 foot limit.
Carried. Ayes-5 Noes-1 (Saff) Absent-0
ZONING BOARD OF APPEALS
NOVEMBER 29, 2004
PAGE THIRTEEN
Motion made by Rick Keefer, seconded by Dave
Remington to adjourn the meeting at 10:30 P.M.
Carried. Ayes-6 Noes-0 Absent-1
_______________________________________
Valerie Pierce, Secretary