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 A= PRIL 28, 2008 AT 7:00 PM.

PRESENT:= Chairman Steve Hoglin, Dave Remington, John Merchant, Richard Keefer, Kathy

= Hedstrand, Allan Hendrickson, Phil Pratt, Attorney William Wright, C= ode Enforcement

= Officer Randy Woodbury and Secretary Valerie Pierce

ABSENT: <= /span> None

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

Motion b= y Al Hendrickson, seconded by Kathy Hedstrand to approve the minutes of the Marc= h 31, 2008 meeting.

&nb= sp;

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

&nb= sp;

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

Chairman Hoglin opened a Public Hearing for Advertising Advantage for a use va= riance for up to two off-premises advertising signs along I-86 on property owned by David Whitehill, 2160 Lafayette Street, Falconer, NY 14733.

William Prieto, Advertising Advantage stated that the Town of El= licott currently has a law banning new billboards in the Town of Ellicott. His company is applying for a= use variance to allow two signs on Mr. Whitehill’s property targeting I-86. He told the Board membe= rs that Advertising Advantage is a= local billboard company that was started eight years ago. Two of the partners for Advertising Advantage, William Loo= mis and Michael McVinney, were also present.&n= bsp; Advertising Advantage currently has approximately 100 sign faces from Erie<= /st1:City>, PA to Olean, NY and is looking to expand= their business locally.

Mr. Hoglin asked Mr. Prieto for any information he could give the Board regarding the signs. Mr. Prieto stated that:=

1)&n= bsp; the sign plans were fully stamped by a NYS engineer

2)&n= bsp; the signs are 14’ by 48’ stan= dard bulletins – the standard that is used by the Advertising Association of America

3)&n= bsp; the signs are the appropriate size for th= is type of highway

4)&n= bsp; they are also recognized by NYS and allow= ed under NYS law

5)&n= bsp; the proposed signs would be placed in the industrial zone – so it would be appropriate to the zoning district

6)&n= bsp; the signs are two sided

7)&n= bsp; they are illuminated with two standard 400 watt halogen bulbs on each side - there is a less than 1% spillage for down lighting – the lights are designed to face upward

8)&n= bsp; the approximate height from the ground to= the top of the signs varies due to the elevation of the road. They would be between 35’ and 45’. However, they have= not done a survey yet so that might vary. The signs would be 10’ to 15’ above the road grade of I-= 86

9)&n= bsp; the signs are required to be a minimum of= 500 feet apart by NYS law

10)&= nbsp; Mr. Prieto showed the Board members on a map where the signs would be located <= o:p>

John Merchant asked if= the signs could be seen heading east if the signs will be 15 feet above the roa= d. Mr. Prieto said that a survey would tell them more accurately but the signs wou= ld be seen heading east.

Rick Keefer asked “How far from the road the signs would be?” Mr. Prieto said whatever the local building law would require. He thinks it is 10 feet off the sideline.

Randy Woodbury stated = that if this use variance were to be approved the applicant would have to come b= ack for an area variance to determine what the size limitations would be. The setback off the property line = in an industrial zone for a sign is 10 feet. Mr. Whitehill has a 567 foot strip of industrial zone within his property.

Kathy Hedstrand asked = how many vendors there would be. Mr. P= rieto stated that there would be four.

Attorney Wright review= ed the law for use variances under Section 267B of the NYS Town Law. It specifically states that no use variance shall be granted by a Board of Appeals without the applicant demon= strating that the applicable zoning regulations and restrictions have caused unneces= sary hardship. The applicant shall demonstrate to the Board of Appeals that for each and every permitted use u= nder the zoning regulations for the particular district where the property is located:

= 1)&n= bsp; the applicant can not realize a reasonable return - provided the lack of return is substantial as demonstrated by competent financial evidence

= 2)&n= bsp; the alleged hardship relating to the prop= erty in question is unique and does not apply to a substantial portion of the district or neighborhood

= 3)&n= bsp; if granted, the requested use variance wi= ll not alter the essential character of the neighborhood

= 4)&n= bsp; the alleged hardship has not been self-created

Attorney Wright recomm= ended that the Board ask questions regarding those four specific criteria in order the make their determination. When they do make a determination in the posi= tive or negative it should be supported by factors corresponding with those criteria.

Mr. Woodbury noted that the referral to the Chautauqua County Planning Board was made and a response was received. They determined= it was a project of local concern.

Chairman Hoglin asked = Mr. Whitehill to review the four criteria with the Board. Mr. Whitehill said he did not have= a copy of the criteria. The app= licant had received a copy of the criteria from Mr. Woodbury when they came in to apply for the variance. They were also given a website where they could get= the criteria.

Mr. Hoglin asked Mr. Whitehill if he could show the Board why a reasonable return could not be r= ealized on his property as currently zoned. Mr. Whitehill said that the parcel = in question is landlocked. There= is no other access to this property. For the purpose of erecting a sign they would need limited access. He explained that permission from = the adjacent property owner would not be a problem since he is also the owner of that property.

The Board reviewed the criteria with the applicant.

1)&n= bsp; = ; &n= bsp; Attorney Wright asked if they had any additional proof to be submitted on the first criteria that a reasonable ra= te of return cannot be shown regarding the property. He asked Mr. Whitehill if= he had made any attempts to sell the property for any use that is achievable u= nder the code. Mr. Whitehill state= d it was all wetlands and is landlocked. The Board did not think the property was landlocked since Mr. Whiteh= ill owns the adjacent lots. Mr. Prieto said that the usual definition of landlo= cked is a separate parcel. Mr. Whi= tehill bought these lots from the same person at the same time.

2)&n= bsp; = ; &n= bsp; Mr. Prieto said that they feel this hards= hip is unique due to the nature of the property. Mr. Whitehill is limited to sellin= g the property because it is a separate parcel.&= nbsp; It would definitely be landlocked if Mr. Whitehill did not own both parcels.

3)&n= bsp; = ; &n= bsp; Mr. Whitehill told the Board that the character of the neighborhood is industrial. The sign is typical in industrial = areas across the US. Mr. Whitehill said he has had= the largest neon sign in the area on his building. These proposed signs would n= ot create any more light than the sign he now has on his building. His roof sign is approximately 65 = feet long and has been there about 22 years.&nb= sp; Roof signs are no longer allowed in the Town of Ellicott.

4)&n= bsp; = ; &n= bsp; Mr. Whitehill does not feel that this is self-created. Attorney Wright= asked if Mr. Whitehill could demonstrate any changes since he had acquired the property. Mr. Prieto said tha= t the billboard law was not in effect when Mr. Whitehill purchased the property.<= span style=3D'mso-spacerun:yes'> The sign ordinance was passed approximately 20 years ago.

There were no neighbors present and Secretary Pierce stated the Town received no correspondence concerning this application.

Mr. Prieto told the Bo= ard that Advertising Advantage is a local company and have been in business for eight years. The owners are residents of the area. 95% of= their clients are local businesses that add revenue to the area. He said that one of the main thing= s that came out of the I-86 summits that were conducted five or six years ago was = that there was not enough billboard signage on I-86 to direct people into the To= wn of Ellicott. Mr. Whitehill stated that they wan= t to put up advertising that will draw people to the Town and the Village of Falconer= . Mr. Hendrickson said his concern w= as that it would not be local business advertising. Mr. Prieto said that they are busi= ness men and 5% of their business is outside of the area but 95 % is still local= . Ms. Hedstrand asked why they chose= this property to put the signs on. She feels it should be away from a residential area. Mr. Prieto said that the property = is zoned industrial and they like to keep signs out of residential areas.

Ms. Hedstrand asked fo= r a clarification regarding the reason they were putting the signs on property = that is located close to residential properties. She asked if it was because it = was an industrial zoned area. Randy Woodbury responded to Kathy’s question. He stated that the genesis of sign control along interstate highways started with Federal laws= in the 1960’s and several modifications have been made to that. He told the Board that a website to obtain good information is the website for the Association of Outdoor Advertising. Each State Department of Transport= ation has to implement the highway beautification act and our DOT Region 5 in Buffalo does that= . Randy said the highway beautificat= ion act and the State Law prohibit these types of signs along interstates excep= t in zones that are commercial or industrial areas. However, federal and state laws al= low Towns to be even more restrictive in regards to billboards and pointed out = that “off-premise” advertising has been prohibited in the Town of Ellicott since th= e 1980s.

Rick Keefer asked if t= he Board should list each criterion and determine if it had been met.

Kathy Hedstrand stated that the first criteria had not been met. The applicant had not shown any financial evidence. She said that M= r. Whitehill needs to show the Board that he has tried to sell the property or develop the land in some other way. Rick Keefer said that the Court of Appe= als requires the applicant to show the Zoning Board hard “dollars and cen= ts” proof. If the Board were to g= rant the variance without proof the Court could nullify the action. Mr. Keefer stated in the case of Everhart vs. Johnson they did just that. Mr. Whitehill said he does not want to sell the property but would like to be able to get some revenue from the signs to help with paying the taxes=

The Board did not feel this land is landlocked because Mr. Whitehill owns the parcel adjacent to i= t. If he bought this parcel knowing it was landlocked then this is a self-crea= ted hardship. Randy Woodbury point= ed out that this is in an industrial zone. He reminded the Board of where the industrial zones in the Town of <= st1:City w:st=3D"on">Ellicott were. Ra= ndy noted that the Town does not have any “grandfathered” advertisi= ng in those industrial zones.

Chairman Hoglin asked = if the Board wanted to cover the other two criteria. Rick Keefer said they had already covered the fourth criteria (self-created hardship). Kathy Hedstrand had mentioned the t= hird criteria when she stated it was residential across I-86.

Motion made by Allan Hendrickson, seconded by Da= ve Remington to deny this application on the basis that there is no proof that= the owner cannot realize a reasonable return on the property as it is zoned and that the hardship is self-created and; further, that all four of the criter= ia had not been met.

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

Motion by Allan Hendrickson, secon= ded by Kathy Hedstrand to adjourn the meeting at 7:45 PM.

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

_______________________=

Valerie Pierce, Secreta= ry