May 13, 1997

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 FEBRUARY 25, 2008 AT 7:00 PM.

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PRESENT:= Chairman Steve Hoglin, Dave Remington, Rick Keefer, John Merchant, Allan Hendrickson, Phillip Pratt, =

= Kathy Hedstrand, Attorney William Wright, Code Enforcement Officer <= st1:PersonName w:st=3D"on">Randy Woodbury

= and Secretary Valerie Pierce <= /span>

ABSENT: None

Chairman Hoglin opened= the meeting at 7:00 and led the Board in the Pledge of Allegiance. Secretary Pierce called the roll.<= o:p>

Motion m= ade by Rick Keefer, seconded by Dave Remington to approve the minutes of the Janua= ry 28, 2008 meeting.

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Carried.= = &nb= sp; Ayes – 7 &nb= sp; = Noes – 0 = &nb= sp; Absent - 0

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

Steve Hoglin had noted= a couple changes to the January minutes.

Motion made by Rick Keefer, seconded by Dave Rem= ington to approve the minutes of the January 28, 2008 minutes as amended.

Carried. = Ayes – 7 = &nb= sp; Noes – 0 = &nb= sp; Absent – 0

Chairman= Hoglin reopened the Public Hearing for Dunn Tire for a sign variance at the Fairmount Plaza, 685 Fairmount Ave., W.E., Jame= stown, NY. <= /p>

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Randy Woodbury= said that the Town had received a letter from Dunn Tire withdrawing their application with thanks = to all Boards in the Town for the help they received moving into the Town. They do not think they need a seco= nd sign at this time but if conditions change they will reapply.

Motion m= ade by Allan Hendrickson, seconded by John Merchant to accept the letter of withdr= awal from Dunn Tire.

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Carried.= = &nb= sp; Ayes – 7 = &nb= sp; Noes – 0 = Absent – 0

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Mr. Hoglin asked all of the residents that wante= d to speak to wait until the presentation is done and then they will have a chan= ce to comment.

Chairman Hoglin opened the Public Hearing for Trinity Electric Inc. for a Special Use Permit to use the building ow= ned by Celoron Hose Company at 315 Hunt Rd., W.E., Jamestown, NY as an office and = to store vehicles and supplies. The company also has applied for a Variance to= use a commercial building to house an electric firm.

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R. Micha= el Goldman, Attorney for Brad Martin, gave copies of his remarks to the Board members.

Attorney Wright stated that there are two applications before the Board, an application for a Special Use Permit and = one for a Use Variance. They are two completely different and distinct things t= hat have different tests applicable to them.&n= bsp; Attorney Goldman said they would withdraw the Special Use Permit and= request the Use Variance. =

Mr. Goldman said that the fire station on Hunt Road i= s owned by the Celoron Hose Company and they have been attempting to sell it for a significant amount of time. In October of 1981 a Special Use Variance was granted to them to build the fire station. Based on the needs o= f the community the Fire Department has decided to operate out of their other fire station so this station is no longer needed. His client, Brad Martin, sole owne= r of Trinity Electric, has put in an offer for the building.

The applicant has submitted in support of the application: an architectural report, a financial analysis, the contract for sale of the real property, a broker’s letter and a fair market value analysis.

Mr. Goldman stated that in a Use Variance the Board’s determination is guided by section 267 B of the Town Law. He went through the four criteria = in the law and explained why they think they meet that criteria

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>1) the first criterion is= that there can not be a substantial or a reasonable return on the

investment – the= y need to show that any permitted use in the zone is not financially feasible R= 11; the cost of converting this into a single family dwelling would cost over $200,000, with the purchase price added – the comparables show that t= he highest value comparable is $169,000, therefore the conversion would create= a cost that would be almost 1/3 higher than the highest comparable – the financial analysis also showed that a two family dwelling, multi family dwelling or a bed and breakfast were not financially feasible, the income w= ould not support the debt

Chairman Hoglin told Mr. Goldman that the Board would like to address questions on each one of the criterion. Attorney Wright asked they had any evidence of what the Fire Department paid for the property and investments costs in 1981.

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Mr. Ron = Brown, Chief of the Celoron Hose Company, told the Board that they purchased the property = for $39,000 and the building and renovation of the property cost close to $200,= 000 in 1980-1981.

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>2) the second criterion i= s that the hardship must be unique and can not apply to a substantial <= /span>

= portion of the neighborhood – there is no other building simular to this building and is

= unique because it was built as a fire station

Mr. Hendrickson asked if the implication was tha= t if they were to put in $200,000 into the building to make it a residence that = it would be well above what the surrounding residences are worth and if they h= ave been up in Cobbe Circle. Mr. Goldman said that the comparables that were submitted were actua= lly taken from Hunt Road which is more comparable than Cobbe Circle. Mr. Hendri= ckson said he thought it was the surrounding area. Mr. Goldman said the financial dat= a he submitted was from a licensed real estate appraiser.

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>3) the third criterion is= that it can not alter the character of the neighborhood – they do not

think it w= ill because there will be no exterior alterations of the building – there will be 5

employees = who will pick up their trucks in the morning and will come back in the evening-=

as busy as= Hunt Road i= s that should not affect the traffic – they will not get any traffic in the =

evenings o= r on Sunday – there will not be the sirens as there were with the Fire Sta= tion

Mr. Jose= ph Lisciandro, Hunt Rd., W.E., Jamestown, NY, informed the Board tha= t this property joins a property on Cobbe Circle.=

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>4)      the fourth criterion i= s that the hardship can not be self-created – the Celoron Hose Company =

        =           never anticipated that the building would not be used as a fire stat= ion or the changes in the

        =           last 25 years that would leave this building unnecessary – a hardship is self-created where

        =           an applicant acquired the property subject to the restrictions from which the relief is sought

        =           and could not reasonably foresee the events that created the hardshi= p

Attorney Goldman said there are two parts; the f= irst is the reasonable ability to foresee the hardship – there was no way = the Celoron Hose Company could have reasonably foreseen that they would not need this as a fire station, the second thing is that when the fire station was built they did get a Special Use Variance. It is not self-created because t= hey came in and asked. Mr. Goldman believes that the self-created hardship condition was placed in the law by = the legislature in order to avoid the situation where an individual would build= a single family home in a residential zone and then want to turn it into a commercial building. This bui= lding was built knowing that it did not conform to the restrictions of the residential zone.

Rick Keefer asked if this property was zoned residential at the time the fire station was built. Mr. Goldman stated he believed tha= t it was.

Steve Hoglin said it was his understanding that = the fire station was started before the Special Use Permit was granted and was discontinued until the permit was granted.= Mr. Brown said that there was no construction started but there might have been some site work done.

Kathy Hedstrand asked when the Celoron Hose Comp= any determined that there was no need for that fire station and why. Mr. Brown said that it was origina= lly built because they were landlocked where they were and they needed more space. At that time they had = 7 or 8 members that lived up in the West Ellicott area. Now they have no member= s in that area. Having equipment i= n the fire station on Hunt Road<= /st1:address> creates a timely process to get the equipment out. Kathy stated that there might be a time in the future that there would be members in that residenti= al area that might be available to respond to that station again. <= /span>

Mr. Brown said that the property behind the fire= hall and on one side of the station became available so they bought the property= . If they were to expand that is where they would expand because it is much bett= er to have it all under one roof.

John Merchant asked what year they stopped using= the fire station on Hunt Road<= /st1:address>. They built an addition on the pres= ent fire hall in 2003. There was = a fire truck that was in the building a couple days ago, which was a new fire truck that has not gone into service.

Kurt Kel= ley, owner of a business on Fairmount Ave., W.E., Jamestown, NY, told the Board that he= had an interest in this building at one time.&= nbsp; He asked if the Fire Department could still use the building as a fi= re station. Mr. Kelley said that it was his understanding that the neighbors d= id not want anything to go in there. Mr. Brown said they spent the money to pu= t an addition on the building on Dunham Avenue because that was where the members were= .

Attorney Wright reviewed the law for the members. He said this is in a residential zone that is under section 146-6 through 11 of the code. The fire station was built in 1981= and a copy of the Zoning Board of Appeals minutes state it was built on as Special Use Permit under 146-9, which allows by Special Use Permit, police and fire stations, under section D. Th= at was approved by the ZBA on October 5, 1981 meeting, and approved with certain restrictions. The restrictions were:

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>1)      there would be no use = of the building until proper parking lot lighting and buffer plan had been present= ed and approved by the Board

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>2)      no activities in the building or the surroundings of any nature except that which provides fire protection for the neighborhood to be served

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>3)      no social or business meetings of any kind except normal training drills, maintenance and fire re= scue operations

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>4)      the landscaping, light= ing and parking facilities to be approved by the Board should be completed no l= ater than September 1, 1982

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>5)      there shall be no sire= ns on the building

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>6)      it shall be permitted = to have such “open houses” to show the operations of the departmen= t to neighbors

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>7)      no additions or materi= al alterations without the consent of the Zoning Board of Appeals

Mr. Wright said the issue now is that the use th= at the purchaser is looking to make of the building is a commercial use and an excluded use under the residential section. It can not be done without a Use Variance. The use variance is covered under 267B of the Town Law, which is the test the applicant must me= et. There are the four criteria to be considered by the Board. Thos= e are the points that Attorney Goldman has covered.

Attorney Wright stated that all questions and comments by the neighbors should be directed at those four points.

Secretary Pierce reported the Town received a le= tter from Mr. Gary Moynihan, who ow= ns a 4-unit apartment complex at 24 Cobbe Circle, stating he= was adamantly opposed to any commercial use of this property. He had concerns a= bout the increase in traffic and the potential for accidents with the school traffic.

Gary Marowski, Wicks Ave., W.E., Jamestown, NY, stated he was also on = the trustees of the fire hall. He addressed John Merchant’s comment.&n= bsp; He said the Fire Department was anticipating selling the building. They moved all the equipment in th= ere along with the radios and telephones. They do leave the gas and electric on. To put this fire station back to a= fire hall right now would take substantial time and equipment and more money.

Roger Loewenheim, Orchard Rd., W.E., Jamestown, NY, = had concerns about signs. Mr. Goldman stated that there will only be one sign on the face of the building. There will be no signs that would require a variance.

Randy Woodbury= stated that getting approval for this Use Variance would be only one of several steps. Another step would be appearing be= fore the Planning Board for site plan, where they would have to show traffic patterns, lighting and signage.

Rick asked Attorney Wright if the Board were to grant the Use Variance, because the variance runs with the land, would that change it from that point on into a business district. Attorney Wright said that it would continue to be a residential zone. Additionally, under 267 B of the Town Law the Board could impose additional conditions and restrictions that are consistent with the zoning code.

Kathy thought that the Board should keep in mind that the use being proposed is an excluded use. That is why they are applying for = a Use Variance, which is unlike something that would be allowed under a Special U= se Permit. She thinks that the b= urden of proving they should approve a Use Variance is substantial. Attorney Gold= man stated he agreed but if the conditions are met that in itself defines substantial. Kathy said that = she does have a concern that a business would not change the character of a nei= ghborhood. She has concerns about the traffic. Mr. Goldman said that if they do approve the Use Variance the Board = can restrict the use of the building.

Rob Heintzelman, Cobbe Circle, W.E., Jamestown, NY,= said they cannot deter= mine if it will change the neighborhood because they are not privy to the information that was given to the Board, such as the types of trucks and the hours of operation, etc. He s= aid that he feels that if the Celoron Hose co. had a usable building and went a= nd bought additional property and built an additional building to mothball this one he does think it is self-created. Basically they went out and created more property that they did not need.

Nancy Heintzelman, Cobbe Circle, W.E., Jamestown, NY,= had concerns about the traffic. She said that the ca= rs would be parked outside and there would be additional traffic on Cobbe Circ= le, which coming around the corner in the morning with all of the deer and the school buses is busy. She stated there are a lot of people living on Cobbe Circ= le and Nottingham, which is a residential a= rea and she feels that is would definitely change the area.

Mr. Brad Martin explained that their normal hours are 7:00 AM to 3:30 PM and the employees pick up the trucks in the morning and are done all day. Mrs. Martin would be doing office = work and he has one service employee and himself that is in and out during the day. They have one or two del= ivery trucks during a week.

Mr. Goldman stated that Brad’s objective i= s to make as little negative impact on the neighbors as possible. If the traffic is an issue they wo= uld be glad to address it and anything they can do to have the least effect on the neighborhood they will do. Mr= s. Heintzelman stated that she did not think they could solve the traffic issu= e.

Carl Lisciandro, Hunt Rd., W.E., Jamestown, stated he lives right = across the street and is a contractor himself and he would not ask the people in t= he neighborhood to let that be commercial property. He feels that there would be a lot= of noise and commotion that goes on. He feels that it would affect his property investment.

Mr. Lisciandro said that the Fire Department was granted a Spec= ial Use Permit and they built the fire station that was an improvement to the community. He does not feel t= hat a business in this neighborhood is fair to the people who live there. He wants to keep it residential. M= r. Lisciandro stated that Erma Fish, Hunt Rd., W.E., Jamestown, NY is also opposed to this varianc= e and could not be at the meeting.&nb= sp;

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Curt Kel= ley, owner of a business at 744 Fairmount Ave., asked if the building were turned into a residential building would it have to go through a permit change. He said t= hat he had a letter from Mr. Woodbury that stated a residential use would not b= e a permitted use for that because it is a community use for profit. Mr. Woodbury said that Mr. Kelley’s proposal was not to convert it to a residential use; his proposal was for an accessory residential use. Mr. Woodbury stated that Mr. Kelley could not have an accessory use without a main use. Kathy stated that was not an issue= for this meeting.

Mr. Ron = Brown said that he would lik= e to clarify a point that was made that the Fire Department imposed the hardship.   The only reas= on the Fire Department bought other property and built an addition was because they did not have any members in the Hunt Road area to respond and get the equipment to = the emergency that is required.

Chairman Hoglin said that the zoning was already= in place when the Fire Department built this station. Mr. Hoglin asked Mr. Brown if ther= e was any intent to market it at that time. Mr. Brown said they did not purchase the property and build the stat= ion thinking they would be where they are today. That was never their intent. He st= ated that by building this building they have put themselves in this position. <= o:p>

Richard = Plank, Jackson Ave, told the Board that they built this station originally to get members from the T= own of Ellicott to help in the Celoron Fire Department. They never got members so there was no sense in leaving a truck there.

Al Hendrickson said he would assume that the wor= kers would be in and out of the building to get materials. Mr. Martin said he has just one se= rvice employee that would be in and out.

Mr. Loewenheim asked= if the proceeds go back to the Celoron Fire Department. Attorney Goodell said they would a= nd the sale price for the property is $110,000. They are a volunteer fire departme= nt and the money will go back to them for the fighting of fires and calls and other reasons they are in business in the first place.

Attorney Goldman addressed the self-created hard= ship issue. He said that he thinks the self-created hardship is not there when y= ou build a building and now it is not being used as originally intended; but if you build a building that d= oes not conform to the zoning, then come in and ask. The Fire Department got the permit before they went into business.&nbs= p; He reviewed a couple of cases in NYS that showed hardship. Mr. Goldman said that self-created= is not a situation where things change but when you do it yourself. For example, if the Celoron Hose C= ompany was found not to be in compliance with their rules and regulations and NYS = came in and said they could not be a fire department any more that would be self-created. He does not fee= l that the present situation is self-created.

John asked if the lot is big enough to put a residence in back. Randy Woodbury said that it was. He understands that it has been on= the market but if someone bought the property and proposed to build a house he wanted to know if they could use the current building as a garage. Randy sa= id that the current building is 2000 SF, so they would have to get an area variance for an accessory building. His comment was just the technical ability not the feasibility.

Ross Cal= i, broker for Real Estate Advantage, said that in this area there is a restaurant on one = side and a school on the other side. He did not think anyone would want to put a residence in that spot because of = the traffic and because of the neighborhood values.&nb= sp; He did not think that would be feasible. He said that Cobbe Circle is different than Hunt Road. With the traffic from the restaura= nt, the school and the church, fi= ve people coming out of this building would not have an impact.

Mr. Joseph Lisicandro said that he realizes that there is a restaurant and school here but will do all= he can to keep another commercial place coming into the neighborhood. He wants to keep this residential = and if they wait someone will come and use the property accordingly. Mr. Goldman said they submitted the financial information, which shows that is not true and it has been on the market for 5 or 6 years. Mr. Hendrickson stated it had been on the market for $200,000 and not $110,000.= Mr. Lisciandr= o said that the house next to him is for sale and they started at $119,000 and are know down to approximately $60,000.&nb= sp; Mr. Goldman said the Board has to look at the four criteria.

Mr. Cali is the realtor for this property. Mr. B= rown said that the building first went up for sale for $200,000 in 2003 only thr= ee people made an offer.

Chairman Hoglin closed the Public Hearing for Trinity Electric.

Motion m= ade by Kathy Hedstrand to deny the application for Mr. Brad Martin for a Use Varia= nce at 315 Hunt Rd., W.E., Jamestown, NY based on the fact it does not meet the criteria for a U= se Variance. <= /b>

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Chairman Hoglin asked to add that it would change the essential character of the neighborhood and that it does not meet the self-created hardship criteria.

Kathy agreed to modify her motion to include Chairman Hoglin’s comments. Rick Keefer said that he definitely agreed with that this was self-created but was not so sure of the change in= the neighborhood.

Phil Pra= tt seconded the amended motion. =

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Carried.=         =             &nb= sp;     Ayes – 7   &nb= sp;            =             &nb= sp;    Noes – 0        =             &nb= sp;        Absent – 0

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Chairman Hoglin opened the Public Hearing for The Gerry Homes d/b/a The Heritage Gro= up for a Special Use Permit for apartments, multiple dwellings and group housi= ng for a senior housing community on property located on Southwestern Drive between Orchard Road and Hunt Road.<= o:p>

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Mr. Davi= d Smeltzer, Executive Director for The Heritage Group, = stated they were looki= ng for a Special Use Permit for apartments, multiple dwellings and group homes. He said this will be a semi-retire= ment community similar to what they have in the Gerry facilities. His plan included more than they w= ould probably build but they were required to let the Board and residents know w= hat the maximum amount they would build would be. This plan will be market driven. M= r. Smeltzer distributed copies.

Mr. Smeltzer said th= eir maximum intentions for this project would be about 20 duplex homes, which m= ay not be where they are shown on the map.&nb= sp; They believe that there is a market for independent living in Chautauqua County in addition to what already exists. They would also have 8 single patio homes, 2 quad-efficiency homes (that would provide some low to moderate housing), and also 4 quad-plexus and possibly an apartment building that would have 50 units. The= group home part of this project would be a new model of a skilled nursing facility that is much more like a home and would have 7,000 SF. There would be betwe= en 10 and 13 residents in these with only 2 or 3 staff members per shift. There would also be one nurse that= would travel between them. They wou= ld probably do three or four of these with 13 residents each.   They would have to get appro= val from the Department of Health for that type of facility. Mr. Smeltzer<= /span> told the Board that this would provide skilled nursing care on the west sid= e of Jamestown. This would actually take nursing home beds from their other facilities. He thoug= ht that with the work that would have to be done regarding retention ponds and storm water control he would think that the residents down below would be better off then they are right now.

Mr. Smeltzer said on= ce they get approval for the Special Use Permit they would go to the Planning Board with the development of storm water detention issues, streets, lighti= ng and other things that will be required.&nb= sp; That is a significant investment and so they would first like to kno= w if they will have a permit to use the property before they purchase it and spe= nd the money for site engineering to be done.

Rick Keefer asked if they had a plan already in place. Mr. Smeltzer said they have talked to Mr. Paul Potter but plans will cost money. The ponds shown on the map are just guesses. This plan is not to = scale but he believes the property outlines are pretty accurate. Each one of the buildings is actua= lly much larger than what the physical unit will be because they include the ga= rage space.

Mr. Smeltzer stated = that the total acreage of this project is 60 plus acres. They hope to disturb as little as possible. Any area on the map= that does not show homes they hope to leave as wooded as possible. They will not disturb the property around where the homes are on each side of the road because they will run t= he roads perpendicular and will just have to take the road down a little bit.<= span style=3D'mso-spacerun:yes'> They will be able to save the trees. Those will be issues f= or the Planning Board.

John Merchant asked if this were fully developed “What would be the total number of people living there?” Mr. Smeltzer said there are 122 units and at 100 % occupa= ncy they would have approximately 220 people. In addition there would be staff.=

Mr. Hendrickson stated he has heard Mr. Smeltzer say “maybe”, “probablyR= 21; and asked what their intention was for Phase I. Mr. Smeltzer<= /span> said that there are two potential parts for phase I; one that depends on the department of Health. Residen= tial if they look at Independent living only to start. That would depend on the interest = and what type would be interested in purchasing, whether it would be single fam= ily or duplex. They would not be looking at quads or the quad efficiencies but would be looking a single or duplex housing. They would no= t be providing meals to these people. John asked if there was sewer and water available. Mr. Smeltzer<= /span> said that they do have it available but they have to defer to the engineer.= The sewer is on Hunt Road. They have two access routes to Hunt Road b= ut they do not intend to put roads there. Rick asked about the lighting and Mr. Smeltzer said there would be as little lighting as possible. They intend to keep= the streets as theirs and not turn them over to the Town. Any site lighting they put in woul= d have to comply with the code.

Attorney Wright reviewed section 146-6 through 11. It is a Special Use Permit under 146-9 C. In the Town of = Ellicott by Special Use Permit in a residential area you are allowed to have apartme= nts, multiple dwellings and group housing. Collectively, the Board is looking at the criteria for a Special Use Permit under 146-64. He reviewed the criteria and said the Board needs to m= ake a determination under 146-64 C to determine if the operation of what is bei= ng proposed would not be more objectionable to the neighbors than would be the operations of any permitted use. The permitted uses going back to section 146-7 are one and two family dwellings with attached or detached garages and the typical accessory uses.=

Kathy asked Attorney Wright if there had been any other request of this magnitude to the Zoning Board. He stated the only one= he could think of was the portion of the Tanglewood Manor that is the newer facility. That facility is there under Special Use Permit. One of the considerations that have to be made is on the skilled nursing buildings. Wh= en Tanglewood was before the Board it was determined that the people had to be mobile and self-sufficient, which the skilled nursing facility would not be.

Mr. Wright asked if every piece on the plan has = to work in order for the project to work. Mr. Smeltzer stated they do not. That is= a very desirable part of the project but does not have to be there in order f= or the project to work. It is desirable because it creates an environment for skilled care in this commun= ity that does not exist and also an environment that does not exist anywhere in Chautauqua, Southern Erie, Cattaraugus or Warren County. Mr. Smeltzer<= /span> said the only thing that compares to anything that now exists would be the group homes for the Resou= rce Center. They provid= e as much care for their clients as they would be providing in these facilities. They will not be = for short term rehab. It is to ke= ep people in a home like environment as long as possible. The third reason it is desirable i= s it would be a selling point because most people that would come to the community and needed skilled care it would have it. It is not essential but certainly a m= uch preferred piece. There is ano= ther reason other than for community service, the more folks they can move out h= ere in skilled nursing care the nicer they can make it for skilled nursing care= in the other facilities by making more space.= Rick asked if this would increase the availability of people with lo= wer or fixed income. Mr. Smeltzer said that income level has nothing to do with skilled care. In the other facilities it will be middle to upper income - except maybe smaller duplexes. It would include all utilities and all that would go along with the facility. He would like to have more quad ef= ficiencies to provide more low to moderate income type housing, but he does not know if that is something people would be interested in. If they do the apartment building = there would be smaller apartments that would be more affordable.

Kathy asked if this was the only property they h= ave investigated for this project. Mr. Smeltzer stated that they are doing some expansion on= their property in Gerry and they are considering expansion beside the Heritage Gr= een property in Greenhurst. They were going to do t= his in Greenhurst until this property became affordabl= e. They have property on North Main Street Ext. that is used for offices.

Chairman Hoglin asked for public comment.

Mr. Ken = Gasier, Orchard Rd., W.E., Jamestown, NY <= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>had concerns about the access roads and if they would ever consider having traffic come out onto <= st1:Street w:st=3D"on">Orchard Road. Mr. Smeltzer<= /span> said that was not their intention, unless the Planning Board would require = it. The plan that Mr. Smeltzer submitted would be t= he absolute maximum they would ever see. Mr. Smeltzer said that this is not a ver= y high density compared to what a developer would come in and develop. If they wanted to add later they w= ould have to come back to the Zoning Board.&nbs= p;

Mr. Smeltzer said th= at the second part of Phase 1 is that they want to build some “green house m= odel nursing homes”. The ski= lled nursing census is down in all of their facilities and they would like get permission from the Health Department to take 20 nursing beds out of the sy= stem and in exchange for that would like to build the “green house nursing homes”. That would depend on funding and grants requests available. Mr. Smeltzer<= /span>, Paul Potter, the engineer and Tom Morrison, corporate maintenance director,= put this plan together.

Mr. Gaiser asked wha= t it was about this project that required a Special Use Permit. Attorney Wright said that under the section of the code that he read in the residential area only one and two family homes are permitted as of right, so anything in excess of a two fami= ly home can only be built by a Special Use Permit. A cluster of single or two family residents wouldn’t have to come before the Board. They would have to go before the Planning Board for sub-division if the were independently sold and get site plan approval if they were not going to be independently sold. Mr. Smeltzer said that if a developer were to come in they would try to maximize the space and then would walk away, but Heritage Group won’t maximize the space and would maintain the property. Mr. Smeltzer had a design concept for the quads and also = had plans for the designs of the one and two bedroom units that they are buildi= ng right now in Gerry and circulated them to the Board members.

Annette Carlson, Hunt Rd., W.E., Jamestown, NY, had several questions.

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>1)      Did they do a market s= tudy? – Mr. Smeltzer has a market study that sa= ys there is enough

      market for= at least an additional 50 independent housing units that was done in 2004 R= 11; they

      had not in= tended to build a whole campus until this property came up - their intention was

      to find pr= operty to up 5 or 6 duplexes on different locations – they feel that this pi= ece of

      property w= ould be a beautiful retirement campus

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>2)      Are they doing an environmental study? – Mr. Smeltzer said = they had already done a short

        =           form and he assumed the Planning Board would get involved in that wi= th Paul Potter, PE.

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>3)      Would this project tak= e the property off the tax roll? – Mr. Smeltzer= said the skilled nursing is by law tax exempt – they are a tax exempt organization and would hope to retain the status but would also develop some payment in lieu of taxes – it would provide more taxes for the commun= ity – probably more than if a developer would come in and built independe= nt homes

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>4)      What was their constru= ction time table and where would they start? – Mr. Sme= ltzer said if they start with independent housing or skilled nursing it would be where it is shown on the map – they will not clear the whole area

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>5)      What would happen if t= hey do not get the appropriate approvals to go on? – Mr. Smeltzer said the only piece they would need other approval on would be the skilled nursing, which would be from the NYS Health Department – the Departme= nt of Law provides approval for the independent living and is basically consum= er protection, which is called an offering plan, and they have one in existence already for the community in Gerry – they would just amend that and a= dd these units to it

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>6)      Where are the detention ponds going to be, will they will be dirt and what if there were a

        =           torrential rain? – Mr. Smeltzer sa= id the ponds have an overflow and would tie down to the

        =           storm water on Hunt Rd – they will keep water in the ponds all= the time - Al Hendrickson

        =           said they would have to have the pond designed to take care of the w= hole – Mr. Smeltzer

        =           said that was true except they could split it into two ponds

  &nbs= p;         7) Are they concerned with mosquitoes= for the West Nile Virus? – Mr. Smeltzer said = not with

        =          a pond that size and it is not standing water if they can get a bree= ze across it – they also put

        =          an aerator on it as well, which would be a decorative fountain<= /o:p>

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>8)      Are the sewer, power a= nd water lines adequate? – Mr. Smeltzer said= they have adequate

      sewer acco= rding to a conversation Paul Potter had with South and Center Chautauqua

      County Sew= er District but they have not had the conversation about the water and electric –

      all the po= wer lines will be underground

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>9)      What were their intent= ions for the access roads on Hu= nt Rd.? – Mr. Smeltzer said they do not plan to u= se those except to bring utilities in

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt'>10) What is their intentio= n for the trees? - Mr. Smeltzer said they have walked= the property but

       they don’t know which trees can be saved - when it gets laid out they want to= save as

       many= trees as possible – they laid out the roads so they are perpendicular to th= e

       topographic lines and down hill with the property - they will put ho= uses on either side so

       they don’t have to disturb much around those houses – they will have= a perimeter of trees

       betw= een the houses that are there now= and the new houses

Al Hendrickson asked Mr. Sm= eltzer to elaborate more on what he meant in lieu of taxes. Mr. Smeltzer said as a non-profit organization they would work with the Town to come up = with an appropriate amount that would enable them to build it and sustain it and= yet provide payment in lieu of taxes. They have an agreement in Gerry that is actually a payment for services rendered but in this community it would probably be in lieu of taxes or a pilot program.

Kathy asked Attorney Wright that because a porti= on of this is skilled nursing facility would they have to request a separate t= ype of permit for that. He said that= is correct and the Board has to determinate if that type of facility meets the Special Permitted Use or is excluded in the residential area. Mr. Smeltzer said they would request approval based on be= ing a group home, which is much different than a skilled nursing facility. Mr. Smeltzer<= /span> said in regard to taxes the bottom line is that would be a Town Board decis= ion whether to grant the tax exempt status and negotiate a payment in lieu of t= axes or not grant it. If it were n= ot granted they would not be able to build as many units.

Rick Keefer asked if they had been before the Planning Board for a sketch plan or anything. Randy told the Board that this was scheduled for a sketch plan conference in February and because there wa= s no meeting they moved to the next step, which is the Special Use Permit. A sketch plan conference is not required. <= /p>

Rick asked what the total investment they are looking at for this project at its maximum extent. Mr. Smeltzer<= /span> said he would guess in $24,000,000 to $25,000,000 range at the maximum extent. For the nursing home development they would be trying to access some grant money. For the balance of the project they would probably look at IDA bond financing similar to what they have done fo= r Heritage Park and Heritage Green when they purchased them out of bankruptcy in 1995 and similar to what they did in S= outh Carolina as well. However, for the first phase the way the project is designed is that the site work is the only thing they ha= ve to finance long term. The entrance fee typically covers most of the cost of= the construction of the unit. It = is an 80 % refundable entrance fee so they get the cash up front and if they are discharged to the skilled nursing facility the money goes into a trust and = if they move out they get a refund when the unit is filled or in six months. If they pass away it would go dire= ctly to whom they designate it to or to their estate.

Mrs. Carlson had one more question for Mr. Smeltzer. “If everything went perfect for them = what would their construction time frame be?” Mr. Sme= ltzer said it would be no sooner then next summer and most likely the summer after. The completion of phas= e 1 would go pretty quickly but the market would determine how much they would = do after that.

Mr. Jose= ph Lisciandro, said that the pond is right in his back yard. Mr. Smeltzer<= /span> explained that is not a defined location for the retention pond but it is a= bout 125’-150’ from the residents on Hunt Road. They do not want to build any more= road than they have to because they have to maintain it and pay to build it. He said that they would build a ph= ase and then maybe would not do construction for 20 years. They would wait until they had sold enough houses or had enough units reserved to start another p= hase.

Mr. Lisciandro asked= where the two entries would be in conjunction with the Southwestern School= driveways. Mr. Smeltzer said that one is beside Michael Calimeri and he= other one is beside Laurie Turner. = Mr. Lisciandro said that would be right across from the entrance of the school. The plan is to bring the utilities in there and have the entrances on Southwest= ern Drive. Mr. Lisciandro asked how much will the Town benefit in taxes. Mr. Smeltzer<= /span> stated he could not say at this time because they have not had any conversa= tion with the Town. Attorney Wright reminded the residents that is not an issue = for this Board. According to sect= ion 146-7 and 146-64 the Zoning Board does not consider taxes. Mr. Lisciandro had concerns with the expense the Town wou= ld incur for this project if the roads were torn up and if they were to dig up= Hunt Road t= o put in sewer and water lines. Mr. Smeltzer said they w= ould be responsible for repairing any roads that would be torn up or dug up for utilities.

George Beckerink, Gerry Levant Rd= ., Falconer, NY, asked why this Board did not determine the taxability of this property because it will change the character of the neighborhood and is changing the area. Mr. Wright said the character of the Neighborhood has to do with the physical impacts. George said he feels that this is an issue when they have 60 acres= of prime land and have a private individual (Tanglewood Manor) down the road t= hat is paying full taxes and they want to come in and pay in lieu of taxes. He does think it is a factor. Attorney Wright said that the agre= ement with the Town that Mr. Smeltzer is proposing is= an issue for the Town Board. Gerry Homes can come in at any time and apply for= a tax break. Mr. Smeltzer said before he puts a shovel in the ground he will have that conversation b= ut he will not have the conversation until he knows if he is going to buy this property. Mr. Carl Lisciandro wanted to know at what point they will talk about taxes. Attorney Wright = said it will at any point Mr. Smeltzer wants to. George stated that the Gerry Homes facility in Gerry is assessed at $9,000,000., the assessment rate is $4.80 = per thousand and they pay $81,000.00 in lieu of taxes. The only service they ge= t in the Town of Gerry<= /st1:City> is fire protection. Attorney = Wright stated he has read the criteria for the Special Use Permit; it is the locat= ion and size of the use, the nature and intensity of the operations, the size of the site in relation to it, the location of the site with respect to the existing or future streets giving access to it, the volume of traffic, the amount of available off street parking, the acting in harmony with the development of the district, the nature, height of the buildings, walls and fences, and it is the determination that the use that is being proposed will not be any more objectionable to the neighbors by virtue of noise, fumes, vibration, lights and orders than would a permitted use. Taxes are not a consideration for = this Board. Mr. Wright said if they want a tax agreement with the Town of Ellicott they can= come to the Town Board and ask for that. They might want to decide to do that before they spend a lot of time= and money in the planning. Mr. Smeltzer had said if they are taxable they would build fewer units and if they are not taxable they could build more units. They will be taxed until they appl= y for tax exemption or if there is a provision of the law that they are not taxable. Under Article 28 A; = homes under the public health law are tax exempt by right. The tax assessor determines that.<= span style=3D'mso-spacerun:yes'> Mr. Smeltzer<= /span> stated that the skilled nursing facilities would be under 28 A. Attorney Wright said that the skil= led nursing home part of the project under the public health law would be tax exempt.

Mr. Roge= r Loewenheim, Orchard Rd., W.E., Jamestown, commented on =

1)      The notices that were sent – he stated he thought that notices should be sent to all of Orchard Road because they will all be affected -Chairman Hoglin said that notices are sent to a radius of 500 feet and tha= t is something that the Town takes on because it is not required by law - by law= it has to be published in the newspaper. He would request that the Board send notices to all of Orchard Road

2)      Ownership of the homes - Mr. Loewenheim= asked if individuals could buy these homes- Mr. Smeltzer said Heritage Group would o= wn them -individuals pay an entrance fee that is 80 % refundable and a monthly fee.

3)      The ownership of the roads – their preference would be that t= he roads be theirs because it would be a lot less expensive to build the roads= that are not up to the Town’s standards and cheaper to maintain them ̵= 1; Randy stated the roads still would have to be built in accordance with the = Fire Code

4)      If they had looked into the water situation – he wanted to kn= ow if there was enough water supply and pressure so it will not affect the residents – Randy said the engineer would have to answer that question – the engineer has checked about the sewer but not the water – = this issue would fall under the engineering – and be answered by qualified people

Mr. Hendrickson said that this is as preliminary= as a plan can get. Mr. Smeltzer said they are asking for a Special Use Permi= t in order to even decide if they are going to move forward with the purchase of= the property. Then if they are go= ing to the building stage they will have a meeting with the Planning Board and hav= e a full site engineering plan done. They have to pay to have everything designed even if they do not do = it all unless they decide they are not going to do that much from the start. I= t is hard for them to spend that much money until they know whether or not they = are going to build there.

Kathy said that she feels that they will have to spend some money to have some professional designs before they come back to this Board in order for the Board to even consider making a decision. Mr. Smeltzer<= /span> said that he was not under the impression that the Zoning Board had anythin= g to do with the design of the project. It is his understanding it is the Planni= ng Board that has to approve any and all site plans and development plans they= put forth before the Town. He tho= ught that this Board’s sole discussion is whether their requested use meets the Special Use Permit in the code.