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 APRIL 24, 2006 AT 7:30 PM.
PRESENT: Chairman
Steve Hoglin, Dave Remington, John Merchant, Angelo Cimo, Pat Martonis,
Rick Keefer, Kathy Hedstrand, Attorney William Wright, Code Enforcement
Office
Randy Woodbury and Secretary Valerie Pierce.
ABSENT: None
Chairman Hoglin
opened the meeting at 7:30 PM and Secretary Pierce called the roll.
Motion made by
Dave Remington, seconded by Ang Cimo to approve the minutes of the March 27,
2006 meeting.
Carried. Ayes – 7 Noes – 0 Absent – 0
Attorney
Wright swore in all present that would be giving testimony at this public
hearing.
Chairman Hoglin reopened
the public hearing for sign variances for Green Acres
Enterprises, 2930 North Main Street Ext., Jamestown, NY 14701.
Mr. Edward
Martiny, managing partner of Green Acres Enterprises doing business as the Main
Express Travel Plaza, requested an area variance for two additional
4’ x 5’ signs to advertise a new food product to their food court from Cruisin Fried Chicken LLC. The
signs will be on the front of the building facing Route 60 and on the side of
their building facing Interstate 86.
Mr. Martiny explained they
need the signage to promote and advertise this new product and comply with the
signage requirements set forth by the licensing agreement with Cruisin Fried
Chicken and he is requesting the standard sign package. Mr. Martiny told the
Board members they need to protect their capital investment in equipment,
training, time and preparation to bring this new product into the area and to
be competitive with McDonalds, which is right across the road. He said the Town
Board rezoned the area to mercantile and hoped it would develop much like the
Dunkirk -Fredonia area has developed on the other side of Route 60. The Town
needs to develop this area to increase the economic base. With the new motel
and other businesses this community is definitely commercial so anything they
can do to promote commerce is going to benefit the community. He showed the Board members pictures he took
from the cemetery and Moonbrook Golf Course and said that you could not even
see the plaza let alone the signs.
Mr. Martiny said the
benefit to the applicant outweighs the detriment to the health, safety and
welfare of the neighborhood or community because:
1) there
will not be an undesirable change to the character of the neighborhood – the
properties are zoned commercial and the closest residence that might be
affected by either sign is over 1/3 mile away
2) the
benefit they are seeking cannot be achieved by any other feasible method other
than an area variance
3) the
area variance being requested is not substantial - on a building as large as
theirs, it is within the allowable square footage area for wall signs and the
signs are more than 300 feet from Route 60 and from the state easement
4) the
variance will not have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district – the signs will be
seen by people that are coming off the interstate on the ramp, customers that
drive by on Route 60 or potential customers getting gas or looking for good
food and something different in the area – the signs comply with structure and
illumination criteria of the Town code so they do not pose potential sign
pollution, light nuisance or hazards
5) the
alleged difficulty is not self created – the community needs something like
this and to do that they need the signage
Mr. Martiny said the
approval of this area variance would not only benefit Green Acres Enterprises
but also the Town of Ellicott, County of Chautauqua and the State of New York
since the more people they can pull off I-86 will contribute to the economy by
adding to the tax base. Everything he
sells in the food court is taxable because it is prepared food.
Kathy Hedstrand asked if
this was a franchise and Mr. Martiny said it was a license agreement that is a
new concept for the company. They have been doing these license agreements for
about a year. They would put the
product in their food court along with the pizza, subs, hot dogs and dounuts
and will not be adding a tenant. They had to buy the equipment under the
agreement and have to purchase the breading and sauces from them. Mr. Martiny
said these are the standard signs for “Cruisin Chicken”. Mr. Martiny had photos
to show the Board members of the building with the signs. Chairman Hoglin told
the Board that Mr. Martiny was approved for two area variances in January 2003
– one for the number of signs and one for the height and square footage of the
ground sign. Attorney Wright said Mr. Martiny would be able to do this without
a variance if this were considered another tenant. Randy said an example of that would be the McDonalds across the
street. Randy said that Mr. Martiny has obtained a temporary sign permit so the
signs are legally on the building. Mr. Martiny was asked what would happen with
the licensing agreement if he had only one sign but he did not know. Randy said
the menu boards and banner signs are not specifically addressed in the code. If
the sign above the menu board was combined with the menu board it would not be
much bigger than what has been allowed at other locations such as McDonalds.
Pat Martonis stated this
is a neighborhood because there are neighbors that drive by there several times
a day. Rick Keefer agreed that it is still a gateway to other communities and
will set a tone of what they want the communities to reflect. She thought there
would be somewhat of an undesirable change because they are adding more and
more signs and the new hotel will add more signs. She wanted to know if this could be achieved by some other
method or if Mr. Martiny asked if the company would be happy with one
sign. She did not feel the variance was
substantial but it was self-created.
When Rick Keefer asked if
the Board could grant only the minimum variance Attorney Wright read from
section 267B of the Town law, which states the Board of Appeals in granting
area variances must grant the minimum variance they deem necessary and adequate
and at the same time preserving and protecting the character of the
neighborhood and the health safety and welfare of the community. Sam’s Club was
an example of the minimum variance the Board could grant. Mr. Wright reviewed section 146-67.4 E of
the code for shopping center mercantile districts. It states in multiple tenant
buildings or complexes each tenant may have a wall or projecting sign
identifying the tenant’s use and in addition thereto the multiple tenant
building or complex may have one ground sign identifying all the tenants in the
building or complex. This is not applicable with this building because it would
not be a multiple tenant building. Mr. Wright reviewed the criteria for the
area variance that Mr. Martiny had been over with the Board.
The drive thru is no
longer open 24 hours. They started closing at 11:00 PM about two months
ago. The signs are wired to the parking
and building lights but Mr. Martiny said he would be willing to shut them off
at night. The building sets far enough back from the road that it is difficult
to see some of the signage.
Mr. Martiny asked if the
reason he could not have the wall signs was because of the existing variances
for the ground sign. He asked if any
weight could be given to the fact that the business is on I-86. Attorney Wright
said it is not because of the variances for the ground sign. The code just does
not provide a single occupancy building to have both a ground and a wall sign.
Attorney Wright asked what
Mr. Martiny would do if the other owners of the products he sells would want
signs. Mr. Martiny stated that Cruisin
Chicken was the only one he had a licensing agreement with.
Kathy asked Mr. Martiny if
his licensing agreement specifically stated he must have two signs. He said he has a “gentleman’s agreement”
with them and every other “Cruisin Chicken” place has them. She asked if he would consider removing one
of the signs. John Merchant asked Mr. Martiny which sign would be most
beneficial. John said there is a sign on the interstate side to let people from
out-of-state know there is a chicken place at the travel plaza.
Attorney Wright told Mr.
Martiny he would have to decide if he wanted the Board to make a decision on
what he presented or if he wanted to ask the Board for some other determination.
Mr. Martiny said the sign on the front of the building would be most beneficial
but that would let the people from out-of-state “just keep on driving”.
Mr. Martiny
asked the Board to approve the wall sign that faces Route 60.
Motion made by
Kathy Hedstrand, seconded by John Merchant, that the requested area variance
for Green Acres Enterprises, 2930 North Main Street Ext., Jamestown, NY be
approved for one 4’ by 5’ wall sign facing Route 60 with the condition being
that the lights would be turned off any time the chicken is not available for
sale.
Mr. Martiny
would not have to come back to the Board to have the lights on all the time if
this goes to a 24-hour operation.
Carried. Ayes –7 Noes - 0 Absent – 0
Chairman Hoglin reopened
the public hearing for sign variances for Greater
Buffalo Savings Bank, 870 Fairmount Ave., W.E., Jamestown, NY
Randy Woodbury said he
understands the applicant got approval for the ground sign and the wall signs
at the last meeting but there was an issue with the “enter” and “exit”
signs. They have resubmitted signs that
do not have any advertising on them. He
said there was a request to add a “Right Turn Only” sign going out onto Fairmount
Avenue. They could not add that to their sign so they will have to get
permission from the Department of Transportation to put a sign in the DOT
right-of-way. It would look like the other 12” x 18” signs on the poles and
would be placed at the driveway right by their “STOP” sign. That would be in
addition to the arrow on the pavement.
Attorney Wright told the
Board they originally came in for four sign variances in addition to their
ground sign and the wall signs - one on the back of the property, “Enter” and
“Exit” signs onto Fairmount Avenue and one sign that identified the drive thru.
Those signs were from 7.88 SF to 8 SF One sign was reduced to 4 SF.
The Board reviewed the
photos that were provided at the last meeting.
They were going to take the Greater Buffalo and 24 hour ATM off and
basically have “Enter” and “Exit” signs that would be the same size. They were
going to check to see if NYS DOT had requirements for entering and existing
onto Fairmount Avenue.
Randy said the only
offering on the new rendering was to remove the logo but not change the
dimensions of the “Enter” and “Exit” signs.
Attorney Wright said he had made notes that said they would use the
“enter” and “exit” signs and if it were right turn only onto Fairmount Ave they
would substitute “ATM” with “Right Turn Only on the “Exit” sign. They have taken off everything on the “Exit” sign but the “Enter” sign will still
say “ATM” and then the directional signs once you enter the property have been
made compliant.
The Board discussed the
directional signs.
Attorney Wright said the
variance of 7.88 SF would not include the base of the sign and the code says
everything that is integral to the sign is included in the square footage so
the signs would be approximately 12 SF.
Pat Martonis asked if the
site plan had been modified. Attorney Wright said the site plan had not been
modified nor had the applicant asked for a modified site plan. Randy stated the
Board had asked the architect about the signs when they were reviewing the site
plan and were told another consultant would do them. The Board did tell the sign company, since they had come from
Lockport, they did not have to come back if they would submit the new plans. Randy said if the Board has an issue with
some calculations they could be asked to come back. Steve said the impression he got from the sign company was that
the lower part of the sign was not an issue because it just covered the
unsightly posts. Randy determined that
the “Enter “ and “ Exit” signs would require a variance of approximately 8 SF
each and he will call Ulrich Sign Company.
Chairman
Hoglin stated for the record that the application for the sign variances for
Greater Buffalo Savings Bank is still tabled.
Robert Burgdorf from the law firm of Nixon Peabody
addressed the Board on the behalf of Verizon Wireless (New York RSA No. 3
Partnership) for the renewal of the special use permit for a telecommunications
tower between Orchard Road and Idlewood Drive, which is renewable every two
years.
Mr.
Burgdorf said he had called Mr. Woodbury to see if the Board wanted to see
anything specific for this renewal. Randy told him there were things the Town
requested with this renewal:
1)
they
wanted to see an elevation to see who was on the tower and where – the
applicant submitted an elevation of the existing tower with proposed antennas
so the Town has a list of who is on the tower – he said they can update that
anytime the Town would like even if it were not within the normal two year
renewal juncture
2)
a
structural verifying the continuing structural integrity of the tower – they
did submit an inspection report and the tower is inspected periodically and
always inspected prior to any modification or replacement
3)
the
demolition bond is $30,000 – that should still cover the tower removal but if
the Board wants to update that they could
Mr. Burgdorf gave the Board an update of the
antennas that are on the tower. There was a dish that needed replacement on one
of the lower levels. There is also some
antenna modifications that Verizon needs to add which he understands do not
required any approval under the code. Currently there are 9 panel antennas at
the 396’ elevation and they will be replaced with 12 panel antennas (6 at the
396’ elevation and 6 at the 235’ elevation). This is usually done to add
capacity so they do not have to build more towers.
Last time this special use permit was approved there
was an issue with the drainage. Mr.
Burgdorf said that in a letter of December 13, 2004 (after meetings with the
Town engineers, neighbors, and Verizon engineers) it was laid out what would be
done to resolve the drainage. Speaking
to the previous site manager all these things to Mr. Burgdorf’s knowledge have
been done.
Randy brought the Board up to date with the
drainage. What Verizon offered to do
was done according to their engineer’s plan and was done well and did meet the
plan. The upper part of the driveway where the antenna is the drainage was
working well but the drainage cross pipes east of there are not. Media One owns
the property and there is a triangle piece where some channelization is taking
place. Randy printed some topographical
maps to show the comparison to the contours on the 2000 topographical maps that
show no channelization. The Town and County engineers agreed that could be a
problem that could develop and in order to rectify that the Town and County
would do some work if they could get permission within that triangular piece of
property that Randy talked about. He did notify the radio station the Town
would be interested in taking an easement or ownership of that piece of
property. Verizon agreed to have their
engineer design the detention pond if the Town and County would build it. They have not been able to that because they
do not have any rights on the land. It
would be important if Verizon would help the Town talk to the right people so
that the Town and County could get rights to the land.
Randy said there have been complaints but Verizon
has done what they could within their narrow right-of-way. The Town Highway Superintendent is interest
in putting in the pond and the County is interested in helping because they are
one of the occupants on the tower. Mr. Burgdorf stated there is a fire antenna
on the tower.
Mr. Roger Loewenheim, a resident of Orchard Rd.,
Jamestown, NY, had several questions for Mr. Burgdorf:
1)
he
asked if there would be more antennas – Mr. Burgdorf said they were going from
9 to 12
antennas
2)
he
asked how often a safety check is done on the tower - Mr. Burgdorf said they did a full
structural inspection in August 2005 and there is a maintenance schedule
– Randy gave Mr.
Lowenheim a copy of the structural analysis - Mr. Wright told Mr. Loewenheim that the
Town code required an inspection every two years – Mr. Burgdorf stated
they also do a
structural analysis before they make any changes to the tower
3)
he
said he was under the impression that
the red blinking lights would be off during the day but they are on 24/7 – he
said that when he moved in they were not on 24 hours – Mr.
Burgdorf said it they would be on according to the FAA
requirements but they would check
that and they would
let Mr. Burgdorf know what the
regulations are
4)
he
asked why they have not taken off anything when they added the new “cones” on
the
tower – Randy said they had taken some dishes down but
replaced them with new ones that
were the same size -
Randy gave Mr. Loewenhein a copy of the information the Town
received from the applicant – Mr. Burgdorf said sometimes the
old dish would be removed
after the new one goes up
5)
he
asked how much wind can the tower take – Mr. Burgdorf said the standards it is
built to and used by the engineers are 70 mph winds gusting up to 100 mph with
every membrane being coated with ½ inch of radio ice so it is being stressed
weight wise way beyond what it is designed to do – Randy said the report
authorizes it for 60 mph winds and asked if it was inconsistent with what he
said – Mr. Burgdorf said what is in the report is more specific and might be
specific for this tower - Randy said he would like that checked because the
numbers for wind load do not exactly agree with the NYS building code for
Jamestown – Dennis Burdick, PE, Mc Pat Engineering, will check and get back
with Randy to make sure Randy is satisfied
6)
Mr.
Lowenheim asked if Verizon is bonded in case the tower falls unto his house –
Mr. Burgdorf said they are bonded for $30,000 and Mr. Lowenheim did not think
that was enough – they will discuss that with Mr. Lowenheim
Mr. Burgdorf said the problem is that they need
these communication towers and the best they can do is to get one site such as
this tower that can be used by a lot of people to avoid additional towers.
Secretary Pierce noted the neighbors were notified
and there was no correspondence.
Pat asked if the approval would be contingent on
Randy making sure that the wind speed per hour is correct. Mr. Burgdorf had no objection to a
condition, which requires that the code enforcement officer be comfortable with
the structural report. Randy said that would be perpechual because should he
ever be notified, even during the time they are under the special use permit,
Verizon would have to prove they meet the NYS building code. Mr. Burgdorf said they would also want to
know that.
Chairman Hoglin said he would like to see some
interaction between Randy, Highway Superintendent Shellhouse and Verizon on the
drainage. Randy asked for any help that
Verizon could give with the landlord for the rights to the triangular piece of
property. Mr. Burgdorf said they would help facilitate that in anyway they
could.
Attorney Wright said the minutes of the Zoning Board
of Appeals on November 29, 2004 were very clear that the drainage that was
going to be done would be an experiment and Verizon was going to hold the
amount of $4542.00 in escrow for engineering studies) for a period of two
years, throughout their next renewal time, to see if the water issues were
fully addressed. Mr. Burgdorf said they did agree to paid the engineering fees
and design a drainage pond should the Town so request in the amount not to
exceed $4542.00 by the end of 2006.
Mr. Hoglin said they had also extended to renewal
period to July 1st. Mr. Burgdorf said he would prefer not to come
back and would like the approval tonight even with conditions.
Chairman Hoglin said he would feel more comfortable
if they would table this to continue the dialog for the drainage and Randy’s
concerns with the structural standards. If the information comes in and is
satisfactory the applicant would not have to come back for the next
meeting. There is also the lighting
issue that Mr. Burgdorf will look into.
Rick Keefer asked why the original amount of the
bond went from $500,000.00 down to $30,000.00.
Mr. Burgdorf said that this was one of the first cell towers and it is
even in the law books, Payne vs. Taylor. The towers were relatively new and the
Board did not have anything to go by so the Board decided to request a
$500,000.00 removal bond The engineer did not know the cost of removal but
later proved that the cost to remove a tower was about $18,000.00 to $20,000.00. They offered a bond for 1½ times
the cost and the Board agreed to the $30,000.00 removal bond. Mr. Burgdorf will
check the cost of removal and if it has changed. He said he had four items to check for the next meeting:
1) the standards for the
structural report
2)
the
meeting with the landlord
3)
the
FAA requirements for the light
4)
the
removal bond amount
Motion made by Steve Hoglin, seconded by Dave
Remington to table this application until the next meeting.
Carried. Ayes-7 Noes – 0 Absent - 0
Carried. Ayes – 7 Noes – 0 Absent – 0
_________________________________________________
Valerie
Pierce, Secretary