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HomeMy WebLinkAbout2003-07-23 BZATOWN OF ULYSSES BOARD OF ZONNG APPEALS MEETING & PUBLIC HEARING 7/23/2003 PRESENT: Chairman George Tselekis, Board Members Ken Christianson, Jim Hickey, Carl Mann, and Joel Warren, Code Enforcement Officer Alex Rachun, and Zoning Clerk Karin Lanning. ALSO PRESENT: Frank Palmer, Lynn Palmer, Alexander Solla, Nancy Solla, Attorney Bill Shaw, Michael Addicott, Kate Sinko, John Benedict, Lawrence Hardesty, Tony DeLaurentiis, Ron Gladstone, Timothy Maguire, Attorney Michael May, Carl Keith, Marsha Keith, Steve Krause, Danielle Carr, and Gladys Sirvent. Chairman Tselekis called the meeting and public hearing to hear comments on a variance requested by Frank Palmer for his property located on Cold Springs Road and known as tax parcel number 20. -3-12.12 to order at 7:30 pm, proof of notice having been furnished. Mr. Tselekis asked Mr. Palmer to describe his proposed project. Mr. Palmer explained he wishes to build a garage to store his equipment. A variance is requested because the peak of the roof will exceed the 20-foot maximum allowed by the Zoning Ordinance by about 2 feet. Mr. Palmer explained this additional height is needed because he needs the structure to have a 14-foot door and a 16-foot ceiling in order to accommodate his equipment. The floor was opened for comments from the public. Alexander Solla spoke in favor of the construction. Mr. Mann moved the following resolution: Whereas the variation in regards to the requirement is not substantial, and Whereas there will be no or minimal impact on population density and, therefore no or minimal increased demand on available governmental services, and Whereas there will be no or minimal change in the character of the neighborhood and no or minimal detriment to adjoining properties, and Whereas there is no alternative feasible means of obviating his difficulty available to the applicant, and Whereas, it would appear considering all of the above factors, that the interests of justice will be served by the granting of this variance, NOW THEREFORE BE IT RESOLVED that the variance be granted. Mr. Christianson aye Mr. Hickey aye Mr. Mann aye Mr. Tselekis aye Mr. Warren aye The variance was granted. The next order of business was approval of minutes. Mr. Hickey moved to approve the minutes of June 18th, 2003 with corrections consisting of adding the date on the first page and adding a statement on the same page declaring the public hearing scheduled for 7:30 pm that evening had been cancelled due to the withdrawing of the application by the applicant. Mr. Mann seconded the motion. Mr. Christianson aye Mr. Hickey aye Mr. Mann aye Mr. Tselekis aye Mr. Warren aye Adopted. Chairman Tselekis called the public hearing to hear comments on a variance requested by the Trumansburg Golf Association for its property, known as tax parcel number 12.-1-1.2 to order at 7:45 pm, proof of notice having been furnished. Mr. Tselekis asked representatives of the Golf Association to describe the proposed project. Attorney Bill Shaw, counsel for the Golf Association explained this is a new application, the first being declared withdrawn, though he did not intend to do so when canceling the hearing scheduled for June 18th. Mr. Shaw explained the application before the board this evening is the same as the most recent application, with the selected building site being 50-feet from an adjoining property line, excepting that the Golf Association has further researched the feasibility of building along NYS Route 227, as was requested. Mr. Shaw asked if the Board members have all read the application materials submitted in the two previous variance applications, have visited the proposed building site, and have visited the proposed alternative site on NYS Route 227. The Board members unanimously answered yes to all of the above with the exception of the viewing of the Route 227 site. Mr. Shaw asked if all the Board members had looked at photos and maps submitted with the application of the Route 227 site, and the Board members answered they all have seen the photos. The maps were not mailed out and were distributed at this time. Mr. Shaw explained one map is a close-up of a portion of the other, and indicated the area owned by the Golf Association, noting these maps are intended to meet the request of the Board to provide an official map of the area owned by the Golf Association along NYS Route 227, in answer to questions raised at a previous hearing on May 20th, 2003. Mr. Shaw asked if all the Board members had read documents submitted by Michael Addicott, manager of the Golf Course and by Attorney Michael May for his client and a neighbor of the Golf Course, Timothy Maguire. The Board members stated they had read these documents. Mr. Shaw concluded by asking the Board to listen to Michael Addicott and consider why construction along NYS Route 227 would involve practical difficulties for the Golf Association, and stating the variation requested is a minor deviance, consisting of 50 feet of setback when 100 feet is required the Golf Course is unique in having so large a setback requirement, most other properties having only 15-35 feet setback requirements, and also that the Golf Association has made many accommodations, and has explored many alternatives, finding alternative sites too costly, posing engineering obstacles, or impractical in light of the layout of the golf course. Michael Addicott noted it is difficult to describe the NYS Route 227 site without being there, but stated it is very wet and often covered with standing water. Mr. Addicott stated the access to the site consists of a 20-foot area that is under water much of the year, making travel by equipment impossible. Woods and a popular playing stop area nearby make movement of equipment from the site in other directions impossible much of the time. The Board members and Mr. Addicott looked at photos submitted with the Golf Association’s application. Mr. Shaw asked the Board and the assembled to bear in mind that a building site needs to accommodate more than just a building-it must be accessible and needs to have adequate parking. Mr. Shaw also noted this site abuts a state highway, and there are regulations governing road cuts onto a state highway. Mr. Shaw stated construction in this site would just be shifting the project from a site that is a bother for Mr. Maguire to a site that is a bother for other residents, and noted that part of the field visible from the highway is actually owned by the NYS DOT, and is merely mowed and maintained by the Golf Association. Mr. Shaw concluded by stating he believes the Golf Association has responded to legitimate concerns brought forth, and has shown practical difficulty with regards to construction along NYS Route 227. Mr. Tselekis asked Mr. Shaw to describe the differences between the Golf Association’s first application, heard in March of 2003 and the current application. Mr. Shaw explained the new application, as well as the previous one, include movement of the building back another 10 feet from the nearest property line, discussion of more and taller trees, and removal of gasoline tanks from the site. Attorney Michael May spoke as attorney for Timothy Maguire and noted he submitted a new memorandum, number two, this evening, to go with the application before the board tonight. Mr. May stated he would like to point out the fact that, in the description of the project, the Golf Association states in answer to the question, “how will the project fit into the neighborhood” that it is very difficult to make a large building like this fit into a residential area…other than this, the building would probably not be very noticeable to nearby residents other than the Keith’s.” Mr. May noted the Golf Association later states the building “will have 1-10 staff vehicles coming and going on a daily basis, including holidays, weekends and at various times during the night,” and “vehicles other than employees’ will be entering and exiting on scheduled and unscheduled basis.” Mr. May also noted Attachment A of the Golf Association’s application is a schedule of activities that covers all 24 hours of the day, excepting a period in the late afternoon. Mr. May stated he reads the State law to call for a balancing between benefits and detriments both to an applicant and its surrounding neighbors. Mr. May stated the Golf Association owns some 142 acres and noted a 30-foot by 90-foot building could go in any number of places throughout this much acreage. Mr. May specifically identified two sites that he feels would be suitable for such a building and would not be detrimental to the Pennsylvania Avenue neighborhood. Mr. May indicated on a map one site near the new parking lot and another site within the Village of Trumansburg, near the present buildings and stated there are probably other sites that would not violate the Zoning law. Mr. Christianson asked if these sites are accessible. Mr. May stated they are, the first site mentioned is accessible via a drive leading to the parking lot and the second site is accessible via the old parking lot, located off Halsey Street in the Village of Trumansburg. Mr. Hickey noted while a 30-foot by 90-foot building could indeed fit in many places over the space of the Golf Course property, constraints such as playing area do make a lot of potential sites impractical. Mr. May stated if the benefit of having this building outweighs the detriments it will cause, other sites should be researched. Mr. Hickey asked if Mr. May is of the opinion the Golf Association should disprove the feasibility of every site suggested by him and others before the board should grant a variance. Mr. May stated he is and the Golf Association has the burden of proving it cannot build anywhere but on the proposed site. Mr. Hickey noted the Golf Association has returned to the board with an explanation of why every site thus far proposed by Mr. May and others is not a feasible alternative for the proposed building, and asked if the board is to continue putting off a decision every time Mr. May or another individual suggests a site. Mr. May stated the board has the duty to make a decision as to whether or not there is another feasible site. Mr. May noted he did suggest two sites at the last hearing, and the Golf Association has not addressed these. Mr. Shaw began by commenting on Mr. May’s proposed alternative sites. Shaw noted first that a variance would also be necessary for the site indicated by May that is near the present buildings, this basically shoves the burden of a decision into another municipality, which is not typical practice. Shaw stated the Golf Association also looked at the other alternative site indicated by May, and this area would also necessitate a variance application. Shaw stated the Code Enforcement Officer confirmed this. Shaw stated there are other issues, but urged the board against passing the matter off onto another municipality. Shaw stated an alleged inference in May’s memorandum (whether the first memorandum or the second was not stated), that an applicant for a variance must first ask to purchase adjoining property in order to meet lot and setback requirements, was not part of the court’s decision in the case May refers to. So noting, Shaw stated he did ask Timothy Maguire, through his attorney, May if he would like to sell some property to the golf association, and he was not interested in doing so. Shaw stated the Golf Association has approached other adjoining property owners in the past and no interest has been expressed in selling property, and certainly not at a suitable price for the purpose of constructing a maintenance building. Shaw concluded by stating the Golf Association has exhausted their options, has found the proposed site to be the best one, and has minimized the impacts on neighboring properties. Shaw also noted if the building were to be fifty feet farther from the Maguire’s property line, no variance would be necessary. Noting the issue is concerning the setback requirement, only, and that if the building met the setback requirements and therefore required no variance, the issues of noise and traffic would be moot, Shaw requested the variance be granted. Carl Keith asked Mr. Shaw why the building couldn’t be built south of the new parking lot, near the number-one tee. Mr. Shaw answered the tee is too close, and stated while he was out with others looking at this site some golfers teed-off right there. Shaw stated again the Golf Association has looked at this site and at others. Carl Keith stated a Barbecue pit is on this site presently. Chairman Tselekis intervened and noted he was not sure where proposing one site after another and asking Mr. Shaw to have an answer about each would lead. Timothy Maguire stated he feels the Golf Association, apologizing if this seems too harsh a word, misled the Planning Board. Maguire stated the Golf Association told the Planning Board it had no alternative sites available and had no frontage on NYS Route 227. Maguire stated the planning board’s approval of this project in Site Plan Review proceedings was granted based on that understanding. Maguire stated he has spoke to some Planning Board members and they expressed shock that the Golf Association owns land along NYS Route 227, and stated he believes the Golf Association merely did not consider their acreage on Route 227, having chosen the proposed site instead. Maguire stated there has to be a reason for the Zoning Ordinance to require 100 feet of setback for buildings on a golf course, and noted the variation is one-half of the requirement-not a small difference. Maguire also stated the Pennsylvania Avenue neighborhood is a growing neighborhood, and noted the view of some seven feet of building and a planted berm will look like the devil. The building will be very visible to anyone driving by. Mr. Hickey asked Mr. Maguire what he would say to the argument that, if his house and property were not where they are, this argument would not matter at all? Mr. Maguire stated, in that case it would be in the terms of the law, which it is not. Mr. Hickey noted that was not what he meant, and asked if the fact that Mr. Maguire’s property is nearby, in his opinion, opens a Pandora’s box where the board must consider any issue or concern whatsoever, regardless of whether or not it affects his property? Mr. Maguire stated his position is: the proposed building will be a detriment to his property the proposed building will be a detriment to the community the law requires 100 feet of setback the application materials state there will be lawnmowers starting up early in the morning in a residential neighborhood, where a site on Route 227 or elsewhere would not be in a residential area. Mr. Hickey re-stated his question, asking if it is Mr. Maguire’s position that the board has to consider every objection that anyone may have. Mr. Maguire stated he wants to ask Mr. Hickey a question. Mr. May stated, as long as his client is being cross-examined, the job of the board is, indeed to weigh all impacts. If a variance is to be granted, there needs to be a reason to do so. Mr. Hickey stated he disagrees. Mr. Maguire stated his position is that he, the Keith’s and the greater Pennsylvania Avenue neighborhood would be impacted by the proposed project, and noted the board has had letters and comments from neighbors of the golf course against the project. Mr. Maguire noted again that the Golf Association did not admit at first to owning acreage along NYS Route 227. Mr. Maguire stated he feels there are other sites that have not been looked at, and the board has a responsibility to the good of the community. Mr. Christianson asked if the golf course is good for the community. Mr. Maguire stated it is. Mr. Christianson asked if what is good for the golf course is not then good for the community, also? Mr. Maguire stated it is not good for the neighbors. Mr. Maguire asked if the board has ever looked out a back window of the Keith’s’ house, noting if they had, they could imagine seeing a 90-foot long building from the window. Mr. Christianson asked if the Golf Association does not have plans to plant trees and shrubs to block the view. Mr. Maguire stated they couldn’t block the view. Asked by Mr. Maguire, Carl and Marsha Keith agreed the view couldn’t be blocked. Ronald Gladstone of the Golf Association noted he did quite a bit of work with NYS DOT when the property owned by that department was purchased. Mr. Gladstone stated the property was purchased for the purpose of addressing drainage issues. Mr. Gladstone noted he was aware that the Golf Association owned that area, but he discounted it because it is very wet, too small and the NYS DOT has an easement there. Mr. May stated, if the Golf Association built a seven-foot high berm, they can fill a wet area for construction, and it looks to him like the building could be built in a lot of different sites where no variance would be necessary. Mr. May mentioned again the sites he indicated previously this evening. Mr. May also noted the activities to go on at the building make it more like a use variance application, and stated a residential property owner could not get a variance to do the sort of activities that will go on at the proposed building on their residential property because the use is too intense. Mr. Christianson asked how the golf course could be run without lawn mowers running all over it? Mr. May answered this may be done either the way it has been for the past fifty years or by building where the new parking lot is. Mr. Christianson asked why the Golf Association does not find another place to build the building and build it. Mr. Hickey and Mr. Tselekis noted the Golf Association has stated they do not have any other sites where the building could be built. No other comments were heard from the public. Mr. Mann read an excerpt from the General Municipal Form Book, 2nd edition, which includes statement that a board of zoning appeals needs to consider and address in its findings of fact the benefit of the applicant as weighed against the health, safety and welfare of the community if a variance is granted in the terms a Board of Zoning Appeals must consider and address in acting on a variance request. Mr. Hickey noted that is what the board does. Mr. Mann agreed, but noted the time spent varies from one application to the next. Mr. Shaw stated he addressed all these items of consideration at the public hearing of May 20th and urged the board to consider all it has heard and follow the State law that calls for balancing of benefit to an applicant against detriment to the community as requested by Mr. May. Mr. Hickey stated he is prepared to consider the application per the weighing test requested by Mr. May. Mr. Tselekis asked if the board should consider the impact on all of Pennsylvania Avenue, as opposed to the impact on the neighbor nearest the building-the Maguire’s. Mr. Hickey stated the board should not account for the impact on all of Pennsylvania Avenue. Mr. Mann disagreed. Mr. Hickey stated the neighborhood arises in the context of consideration of the general rule, not the specific detriment. Asked to restate his comment, Mr. Hickey stated each application must be considered in regards to whether a project will result in an undesirable change in the character of the neighborhood, this does not mean everyone who dislikes a project may have their disagreement weighed. Mr. Hickey noted if the building was to be built fifty feet further into the Golf Association’s property, the building could be built, regardless of various complaints against it. The issue before the board is strictly a matter of fifty feet. Mr. Mann stated since the project will require a variance it has become the board’s responsibility to determine whether the granting of this variance will be in keeping with the health, safety, welfare, and character of the neighborhood. Mr. May asked if he could make a statement. Permission was granted. Mr. May stated if the law was that only the effect on the affected neighbors should be considered the State law would read that way, and it does not. Rather, the law calls for consideration of the detriment to nearby properties, not just the property whose nearness necessitates the variance. Carl Keith asked Mr. Hickey how he would feel about cars running at all hours sixty feet from his residence. Mr. Hickey declined to answer. Mr. Mann restated Mr. Keith’s question, asking Mr. Hickey if he considers cars running sixty feet from any residence at all hours to be a detriment to a residential neighborhood. Mr. Hickey stated he does. Mr. Tselekis noted he is not convinced traffic or the view resulting from this project will be big impacts; one impact that could be large is noise-the mowers running very early in the morning. Carl Keith stated he could hear the mowers now. Mr. Hickey asked what the difference would be. Mr. Keith stated the mowers would be closer. Mr. Tselekis noted if Mr. May and Mr. Maguire wish to attack the decision of the Planning Board based on the misleading of said board by the Golf Association, this is not the venue to do so-the Zoning Board of Appeals must act based on the Planning Board’s decision as it stands today. Mr. Christianson asked if the Golf Association would be willing to try to find another site. Michael Addicott stated they have been trying to do so since November of 2002. Mr. Christianson asked if there is not any other site? Mr. Maguire asked when the proposed site was pre-loaded with stone. Mr. Addicott stated stone was brought in late in October. Mr. Tselekis noted the Golf Association owns a great deal of acreage, and stated it is not likely they would put themselves through this long process if there was another feasible site. In preface to a motion, Mr. Hickey noted the following: First, that he will use the balancing test of benefit to applicant versus detriments to neighborhood in considering the variance request presently before the board, and Secondly, that the detriment appears to be limited to specific property owners with no overall detrimental change to the neighborhood likely, given that he does not consider every expression of displeasure to conclusively indicate a detriment to the neighborhood, and Thirdly, while another site could have been better, it seems very unlikely the Golf Association would have pursued the proposed site if another feasible site was available to them, and Fourth, no expert analysis has been presented to suggest an alternative site that would be an equally suitable building site for the proposed building, and Fifthly, the applicant has done everything in its powers to eliminate issues and respond to all concerns that have been raised. So noting the above considerations, Mr. Hickey moved the following: Whereas, the variation in regards to the requirement is substantial as a percentage of the requirement, but not in terms of the actual distance from the nearest property line, fifty feet, and not in terms of the fact that there will not be any residential structures near the structure on said nearest property, and Whereas, while detriments to the neighborhood both real and speculative have been presented, the detriment to the neighborhood is outweighed by the benefits to the community that will result from granting the variance, and Whereas, there will be no increase in population density and thus no impact on available governmental services, and Whereas, there will be detrimental change in the character of the neighborhood, and Whereas, the difficulty is not self-imposed, but arose out of increased needs at the golf course, and Whereas, in consideration of the above, it does seem that the interests of justice dictate the variance should be granted, Be It Therefore Resolved that the variance is granted. No second was heard. The motion died. Mr. Mann moved the following: Whereas, the variance if granted would result in an undesirable change to the character of the neighborhood and a detriment to adjoining properties, and Whereas, it is not clear that the applicant has no alternative feasible means of obviating the difficulty, and Whereas, the variation in regards to the requirement is substantial-a 50% variation, and Whereas it may be said that the difficulty is self-created, Be It Therefore Resolved that the variance is denied. Mr. Christianson seconded. Mr. Christianson aye Mr. Hickey nay Mr. Mann aye Mr. Tselekis nay Mr. Warren aye The motion passed. The variance is denied. Chairman Tselekis called the meeting and public hearing to hear comments on a request from Cayuga Addiction Recovery Services to interpret the Zoning Ordinance as it pertains to the definition of sanitariums and rehabilitation centers to order at 8:55 pm. Steve Krause, architect for Cayuga Addiction Recovery Service stated they are looking to replace their present structure and Code Enforcement Officer Rachun finds that while rehabilitation centers are defined in the Ulysses Zoning Ordinance, they are not allowed anywhere by said Ordinance. Mr. Hickey noted there are several definitions under the general topic of medical, recovery and care facilities set out in the Zoning Ordinance. Mr. Rachun stated the draft revised Zoning Ordinance is set to allow recovery centers and also noted that the definition of sanitarium is “a hospital for the treatment of chronic diseases”, and alcoholism and drug addiction are considered to be chronic diseases. Mr. Krause noted addiction has been defined as a chronic and progressive illness by the American Medical Association since 1958. Mr. Hickey asked if this is still the holding of the Association, and Mr. Krause stated it is. Mr. Hickey asked if the Zoning Ordinance currently allows sanitariums. Mr. Rachun stated they are by special permit. Mr. Hickey moved to hereby include Cayuga Addiction Recovery Services as a sanitarium by definition. Mr. Mann seconded. Mr. Christianson aye Mr. Hickey aye Mr. Mann aye Mr. Tselekis aye Mr. Warren aye Adopted. Hearing no further business, Mr. Hickey moved to adjourn the meeting. Mr. Christianson seconded. Mr. Christianson aye Mr. Hickey aye Mr. Mann aye Mr. Tselekis aye Mr. Warren aye The meeting adjourned at 9:07 pm. Respectfully Submitted, Karin T. Lanning Ulysses Zoning Clerk KTL: kl Town of Ulysses Board of Zoning Appeals 7/23/2003 8