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Home My WebLink About2019-10-29 ZBA Minutes FinalPage 1 of 9 TOWN OF CORTLANDVILLE ZONING BOARD OF APPEALS Public Hearing/Meeting Minutes - Tuesday, 29 October 2019 – 5:30 PM Town Hall Court Room – 3577 Terrace Road – Cortland, NY Board Members (*absent) Others Present John Finn, Chairman Bruce Weber, Planning/Zoning Officer Thomas Bilodeau Joan E. Fitch, Board Secretary Joanne Aloi John DelVecchio, Town Attorney Bernice Potter-Masler Vacancy Applicants & Public Present Justin Seales, Applicant; Daniel King for UCK Three, Applicant; Thomas Fucillo, Greg & Barb Leach, Brian Bouchard, Andrea Rankin, Doug Withey, Kelly Gregory, Pam Jenkins, Bob Martin, Pat Leach, Sarah Leach, Katie Vanbureun; Colin Spencer, Reporter. The Public Hearing was opened at 5:30 p.m. by Chairman John Finn, who read aloud the Legal Notice as published in the Cortland Standard on 14 August 2019, as follows: NOTICE IS HEREBY GIVEN that a public hearing before the Zoning Board of Appeals of the Town of Cortlandville will be held Tuesday, October 29, 2019 at 5:30 p.m. at the Raymond G. Thorpe Municipal Building, 3577 Terrace Road, in the Town of Cortlandville, New York, to consider the following applications pursuant to the 1986 Zoning Law: 1. In the matter of the application of Justin Seales for property located at 3420 Walden Oaks Blvd., Tax Map No. 96.17-02-01.000, for a variance in the terms and conditions of Section 178-21A(1), to allow for a single-family dwelling with a height greater than allowed. 2. In the matter of the application of UCK Three (Sun Auto) for property located at 3845 NYS Route 281, Tax Map No. 86.17-02-03.000, for a variance in the terms and conditions of Section 178 -113, Table 2, to allow for a building- mounted sign with an area greater than allowed. 3. Pamela Jenkins to appear the determination of Cortlandville’s Zoning Officer. 4. In the matter of the application of UCK Three for property located at 3845 & 3861 NYS Route 281, Tax Map Nos. 86.17-02-03.000 & 86.17-01-11.100, for a variance in the terms and conditions of Section 178-2.2, 111B & 113 & 90 C (1), to allow for less than 50% green space, signs closer to property line than allowed, a greater number of signs with a height greater than allowed & exemption from Stormwater regulations. 5. In the matter of the application of McLean Solar 1 for property located at 500 McLean Road, Tax Map No. 95.00-01-33.100, for a variance in the terms and conditions of Section 178-123 D (3) (a), to allow for a ground-mounted, large- scale Solar Energy System in an R1 District. The above applications are on our website at www.cortlandville.org or at the office of Bruce A. Weber, Planning & Zoning Officer, Raymond G. Thorpe Municipal Building, 3577 Terrace Road, Cortland, New York, call (607) 756-7052 or (607) 423-7490. Persons wishing to appear at such hearing may do so in person, by Attorney, or other representative. Communications in writing in relation thereto may be filed with the Board or at such hearing. John Finn, Chairman Zoning Board of Appeals (Note: Proof of Publication has been placed on file for the record.) Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 2 of 9 PUBLIC HEARING #1 McLean Solar 1 LLC, Applicant/Farm East LLC, Reputed Owner – 415 McLean Road – TM #95.00-01-33.100 – Area Variance – Large-Scale Solar Energy System in R1 District Chairman Finn recognized Town Attorney John DelVecchio who said he had talked with Mark Sweeney, the applicant’s attorney, and explained the procedure pertaining to this appeal. The Town Board, he said, has already delegated the Planning Board as Lead Agency under SEQRA, and he suggested to the ZBA that they not act on this appeal at this meeting, but also delegate that authority to the Planning Board. Once the SEQRA determination has been made, this Agenda item should be postponed. It would also allow time to determine whether or not there is a public utility exception. He provided additional information regarding this to Board members. At the conclusion of Town Attorney DelVecchio’s statement, a motion was made by Member Potter-Masler that the Town of Cortlandville Zoning Board of Appeals requests that the Town Planning Board act as Lead Agency with respect to SEQRA. The motion was seconded by Member Tom Bilodeau, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #27 of 2019. A motion was then made by Member Joanne Aloi that the variance requested be postponed until the Town Planning Board has completed their SEQRA review. The motion was seconded by Member Bilodeau, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #28 of 2019. PUBLIC HEARING #2 Justin Seales, Applicant/Reputed Owner – 3420 Walden Oaks – TM #96.17-02-01.000 – Area Variance – Single-Family Dwelling with Height Greater than Allowed Chairman Finn recognized the applicant who explained that he was seeking an area variance to allow for a height greater than allowed on one of the peaks of his new home. The Code requires a maximum 35 feet in height, and the subject peak, as calculated, exceeds that by two feet. The home, he stated, is not visible from the road. Chairman Finn asked if there was anyone present from the public who wished to comment on the matter; there was no one. With everyone being heard who wished to be heard, Chairman Finn closed the Public Hearing at 5:45 p.m. Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 3 of 9 DISCUSSION/DECISION As requested by Chairman Finn, Member Joanne Aloi proceeded with the required questions (balancing test) for an area variance; the responses given by the ZBA members, were as follows: 1. Would there be an undesirable change in neighborhood character or to nearby property? Finding: No. All Board members present agreed. 2. Can the benefit be achieved by other means feasible to the applicant? Finding: No. All Board members present agreed. 3. Is the requested variance substantial? Finding: No. All Board members present agreed. 4. Would the variance have an adverse impact on the physical or environmental conditions in the neighborhood? Finding: No. All Board members present agreed. 5. Has the alleged difficulty been self-created? Finding: No. All Board members present agreed. At the conclusion of the test and with no further discussion, a motion was made by Member Aloi to grant the area variance for a single-family dwelling with a height greater than allowed, as requested. The motion was seconded by Member Bilodeau, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #29 of 2019. PUBLIC HEARING #3 UCK Three LLC, Applicant/Reputed Owner – 3845 NYS Route 281 – TM #86.17-02-03.000 – Area Variance – Building-Mounted Sign w/Area Greater than Allowed Chairman Finn recognized Daniel King, representing the applicant who was seeking an area variance to allow for a temporary building-mounted sign which has an area greater than allowed. The sign has already been placed on the building by the sign contractor, and he apologized for that. The actual sign is a vinyl banner which they would like to use for a period of twelve months while they complete the consolidation of the two parcels, this one and an adjacent one just purchased. A photo of the sign was attached to the application. He also advised that the two pylon signs along Route 281 have been removed; the pylons will eventually be removed. PZO Bruce Weber explained that a sign size of two square feet per lineal foot of the building is allowed, and the proposed sign is six square feet per lineal foot. Chairman Finn asked if there was anyone present from the public who wished to comment on the matter; there was no one. Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 4 of 9 With everyone being heard who wished to be heard, Chairman Finn closed the Public Hearing at 5:59 p.m. DISCUSSION/DECISION As requested by Chairman Finn, Member Joanne Aloi proceeded with the required questions (balancing test) for an area variance; the responses given by the ZBA members, were as follows: 1. Would there be an undesirable change in neighborhood character or to nearby property? Finding: No. All Board members present agreed. 2. Can the benefit be achieved by other means feasible to the applicant? Finding: No. All Board members present agreed. 3. Is the requested variance substantial? Finding: Yes. All Board members present agreed. 4. Would the variance have an adverse impact on the physical or environmental conditions in the neighborhood? Finding: No. All Board members present agreed. 5. Has the alleged difficulty been self-created? Finding: No. All Board members present agreed. At the conclusion of the test and with no further discussion, a motion was made by Member Aloi to grant the area variance for a temporary building-mounted sign with an area greater than allowed for a period of twelve (12) months, as requested. The motion was seconded by Member Bilodeau, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #30 of 2019. APPEAL DETERMINATION OF PLANNING/ZONING OFFICER Pamela Jenkins, Appellant – Re: Gregory Leach Application – Leach Properties, LLC – 1834 NYS Route 13 – TM #77.00-13-11.000 Chairman Finn recognized Pamela Jenkins who advised everyone present that she was requesting an annulment of PZO Bruce Weber’s determination that Mr. Leach’s 9/12/19 application did not require a Use Variance, and she was also requesting an “interpretation under the Zoning Law that a commercial garage excludes truck bay for equipment storage, including garbage hauling trucks and equipment for operations related to Leach’s Truck Service/Trash Service. . .” Ms. Jenkins’ comments appear as Attachment A to these Minutes. All referenced documents (19 pages) by Ms. Jenkins have been placed on file for the record. Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 5 of 9 At the completion of Ms. Jenkins’ comments, Town Attorney DelVecchio explained that Ms. Jenkins is asking this Board to overturn PZZO Weber’s determinations: (1) is an additional Use Variance necessary and (2) is Mr. Leach’s proposed use a commercial garage or not, under the Code. PZO Weber, he stated, has concluded that his prior position in 2017 was that no additional Use Variance was necessary and that his position remains the same. PZO Weber submitted his comments, dated 30 September 2019, to the Board Members, a copy of which has been placed on file for the record. Attorney DelVecchio continued that the Board needs to determine whether or not “Ms. Jenkins has standing to be before you tonight. Typically when an appeal of this nature is brought before the ZBA it is brought by the property owner in question; that is Mr. Leach. That question of whether or not Ms. Jenkins has standing is a legal issue—it’s not a legal issue in my mind that’s before you, but it is a legal issue. Just wanted to make that clear, put it on the record.” Attorney DelVecchio stated he had talked with Mr. Leach’s attorney, Thomas Fucillo, who provided him with a letter that has been provided to Board members and placed on file for the record. He also advised the Board that (1) the Chairman should ask Attorney Fucillo to speak (he was present), and (2) given the complexity of the legal issues and logistics involved, that this Board postpone this appeal/decision until such time as the Board can receive and review additional background information to be provided to them by Attorney DelVecchio. Chairman Finn then recognized Mr. Leach’s attorney, Thomas J. Fucillo (Partner, Barclay Damon, Syracuse, NY) who addressed those present. Attorney Fucillo commented that he believes the appeal should be “thrown out for a number of different reasons” which were included in the letter he submitted to the Board. “He (Mr. Leach) doesn’t need another Use Variance.” Mr. Fucillo has provided a number of cases in support of this while, he stated, Ms. Jenkins’ attorney has not provided one case. He countered Ms. Jenkins’ comments by Attorney James Coon and those of Cortland County Planning Department’s Director, Dan Dineen. Attorney Fucillo stated, “You don’t need to require another Use Variance once you’ve already issued one for that same use.” He then added, “It’s clearly a commercial business, it’s indoor, and it’s going to be for storage of their vehicle.” Also, he stated, “if there’s any question, you’ve got to go in favor of the property owner.” Attorney DelVecchio advised the Board that he will provide them with legal principles that apply. With no further discussion, a motion was made by Member Aloi to postpone this appeal until further documentation is reviewed. The motion was seconded by Member Potter-Masler, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #31 of 2019. PUBLIC HEARING #4 UCK Three LLC, Applicant/Reputed Owner – 3845 NYS Route 281 – TM #86.17-02-03.000 and 3861 NYS Route 281 – TM #86.17-01-11.100 – Multiple Variances Chairman Finn recognized Brian Bouchard, PE, of CHA, Syracuse, NY, representing the applicant who was seeking variances for allowing less than 50% green space, signs closer to property line than allowed, a greater number of signs with a height greater than allowed, and exemption from the Stormwater Regulations. Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 6 of 9 PZO Weber stated that this matter will also require that the Town Planning Board should act as Lead Agency under SEQRA. Chairman Finn added that there was really no reason for this Board to consider this appeal until after the SEQRA has been completed. PZO Weber agreed in that, as he stated, the project may change between now and when the Planning Board does their SEQRA review With no further discussion, a motion was made by Member Bilodeau that the Town Planning Board act as Lead Agency under SEQRA regarding variances to allow less than 50% green space, signs closer to the property line than allowed, a greater number of signs with a height greater than allowed, and exemption from the Stormwater Regulations. The motion was seconded by Member Aloi, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #32 of 2019. With no further discussion, a motion was then made by Member Bilodeau to postpone this appeal until the Town Planning Board has completed their SEQRA review. The motion was seconded by Member Potter-Masler, with the vote recorded as follows: Ayes: Chairman Finn Nays: None Member Bilodeau Member Aloi Member Potter-Masler Motion passed. This becomes Action #33 of 2019. ADJOURNMENT At 6:35 p.m., on a motion by Member Aloi, seconded by Member Potter-Masler, with everyone present voting in the affirmative, the meeting was adjourned. __ _________________ Joan E. Fitch, Board Secretary Draft emailed to KRP, PR, Bd. Members, JD, BW, DD, DC, KM on 11/27/19. Approved 12/3/19. Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 7 of 9 ATTACHMENT A Leach 2019 PJ to ZBA on 10 29 2019 Board members, As you know I am asking for annulment of the Cortlandville ZEO Weber’s determination that Gregory Leach’s September 12 2019 application does not require a use variance from the ZBA; and for an interpretation of ‘commercial garage’ to exclude a truck bay for equipment storage including garbage hauling trucks and equipment for operation of Leach’s trash business as conceded in Leach’s September 12, 2019 application materials. Let's keep this simple. The precedent has been set. Each and every time since 2003 when Leach received his first use variance, and when he built or expanded his trash business on that 3.11 acres: he was required to seek a use variance. This expansion of his trash business is no different and Leach must be required to seek a use variance. The precedent has been set by Cortlandville’s own ZBA, and by New York State Town Law. This Dept of State, James Coon document instructs on page 33 that the ZBA should follow its own prior precedent. That precedent was set by this ZBA and supported by Town Law Law 267- B(2)(c)...meaning that each variance was granted for what Leach built then...not for what he would build in 2017 or 2019. The granting of a use variance does not change the underlying existing zoning of a parcel…it just grants that specific variance for that project which is applied for. On page 8 of the Jenkins PDF in your agenda …you can read how Mr Folmer unfortunately testified at the public hearing and advised the ZBA wrongly…he was unfortunately relying upon a 1975 court decision…BUT everything has changed since 1975…the laws and statutes have been updated since then. Since the 1990’s use variance are required to be granted only for the minimum VARIANCE requested…..not for what one might want to build 10 or 20 years in the future. See Exhibit C re: Town Law 267-b (2)(c), also see Exhibit E, Dan Dineen’s October 8, 2019 memo. “I agree with Mr Zamelis’ assertions that a use variance is required for any expansions of a use that was previously granted a use variance.” Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 8 of 9 The Cortlandville code officer, therefore, abused his authority and discretion by failing to require a use variance for this trash business building which Mr Leach concedes is for his trash and recycling business equipment and trucks. It is therefore another building for his trash business. It is a 1300 square foot expansion of his trash business which is a prohibited use in B2. Again, the fact that Leach received previous use variances did not change the underlying zoning prohibitions on that 3.11 acre parcel. I do not think that anyone in this room could provide a reasonable or logical explanation for why this 1300 square foot building on Leach’s trash business 3.11 acre parcel, is anything but an expansion of his trash business. See Exhibit B. Leach concedes this building is to be used for his trash and recycling business. Leach’s trash and recycling business is not a Garage, Commercial as defined by Cortlandville ecodes. An additional trash business building does not become anything but a trash business building when you park trash business trucks and recycling equipment in it. It does not become a Garage, commercial per CV ecodes. It becomes a trash business expansion. A use variance is required to expand a prohibited use. Plain language reading comprehension is called upon here: reading from Cortlandville ecodes definitions: Garage, commercial: An enclosed building used as a business for the indoor storage or repair of motor vehicles including painting and the sale of parts and accessories. A junkyard or auto salvage yard is not to be construed as a garage. Leach’s is not “a business for the indoor storage or repair of motor vehicles.” Nor is Leach in the business of “painting and sale of parts and accessories.” And by the way he was originally permitted as a junkyard. And reading again from ecodes definitions: “a junkyard …is not to be construed as a garage.” Mr Zamelis wrote on 10/3/2019 "Given the current statutory scheme and Town Law section 267-b(2)(c)(under which the Leach use variance was granted in 2003), any argument that the 2003 use variance granted to Leach is now an unlimited license to expand his solid waste transfer station is unsupported and strained." Dan Dineen wrote on 10/8/2019 " I agree with Mr Zamelis' assertions that a use variance is required for any expansions of a use that was previously granted a use variance. I am not an attorney, but this is my professional opinion." ~~~~~ Minutes – Public Hearings - (T) Cortlandville Zoning Board of Appeals 29 October 2019 Page 9 of 9 Leach’s 2017 application was withdrawn by the applicant’s attorney in September of 2019. This board is not required to again violate Town Law by failing to require to a use variance for this trash business expansion application, now that you know that a use variance is required. Citizens expect this ZBA and Planning Board to comply with current NYS laws. Expansion of a use which required a use variance, requires another use variance to be applied for. This may not have been how Cortlandville practiced in numerous cases in the past, but this is what NYS Law requires. Thank you. Pam Jenkins