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 JULY
31, 2006 AT 7:30 PM.
PRESENT: Chairman
Steve Hoglin, Dave Remington, Angelo Cimo, Richard Keefer, Pat Martonis
Kathy Hedstrand, Attorney William Wright, Code Enforcement Officer Randy
Woodbury
and Secretary Karyn Okerlund.
ABSENT: John Merchant
Chairman
Hoglin opened the meeting at 7:35 PM and Secretary Okerlund called the roll.
Motion made by
Ang Cimo, seconded by David Remington to approve the minutes of the June 26, 2006 meeting.
Carried. Ayes – 6 Noes – 0 Absent – 1
Attorney
Wright swore in all present that would be giving testimony at this public
hearing.
Chairman
Hoglin reopened the public hearing for RSA No. 3 Cellular Partnership d/b/a as
Verizon Wireless for a Special Use Permit renewal for a wireless facility
originally granted January 7, 1991.
Chairman
Hoglin opened the Public Hearing for Nicholas Ferreri, 560 Fairmount Ave.,
W.E., Jamestown, NY for a perpetual renewal of their Special Use Permit for
Memory Garden.
Attorney Wright told the
Board members the Town Board passed a local law, which gives them the power to
extend the renewal periods beyond two years after the first two-year
approval.
Atty. David Stapleton
spoke for Mr. Ferrari. The Town has
passed a change to the Local Law to the Special Use Permit Section, drafted by
Atty. Wright to allow for Perpetual Extensions rather than the traditional
two-year renewal. The Perpetual Special
Use Permit can be reviewed at any time by the Zoning Board of Appeals if they
choose to do so. The Special Use Permit can be modified or even terminated. A unanimous vote by the board would bring it
back on the Zoning Board’s calendar.
Any changes after that would be based on a majority vote. Tanglewood is trying to avoid coming back
before the board every two years unless something happens that indicates that
the Zoning Board of Appeals should look at it again. Coming in every two years is an inconvenience of the board’s
time, the publics time and Tanglewood’ s time. If any future changes were to be
requested by Tanglewood, they would have to obtain Building Permits and come in
before the board. The Local Law has
been returned to the Town, in proper form, and the Department of State has
accepted it. The first renewal was last
summer, so this is beyond the two-year period required by the new law. Randy Woodbury stated that Memory Gardens is
very well maintained and they do very well on their annual fire
inspections. Their paperwork is always
in order and the physical plant has always been in order and they are employee
compliant on getting permits for internal changes. They have been very good at
multi-jurisdictional events. Atty.
Wright stated that there cannot be a stipulation on ownership, Special Use
Permits run with the land. Conditions
can be put on the Special Use Permit as long as the use remains the same,
despite change of ownership, it continues with the property.
Mr. Ferreri has invested a
great deal of money and time and loves the residents that are there. Mr. Ferrari feels that with a two-year
period for review, the Zoning Board has his facility in its hands. If you decide for any reason, to say that
you are not going to grant that renewal, for that two-year period, the decision
could cause havoc with the possible displacement of 50-208 residents. This is a very big issue for this facility. He is not saying the board would do that,
but it is something that he must take into consideration.
The Local Law states that
subsequent to the first two-year period, the Ellicott Zoning Board of Appeals
may, in its sole discretion, extend the renewal periods beyond two years. This language can’t be changed unless they
go to another public hearing.
Memory Gardens and
Tanglewood are all tied in to one big package with shared staffing and
transportation, it was questioned if this was the appropriate time to grant
this Perpetual Permanent Grant of Special Use Permit. It was thought this would be granted once things settled down a
bit and there were no complaints from the neighbors of violations of the Site
Plan/ Special Use Permit as it was granted in the first place. Attorney
Stapleton stated that everything appears to be fine at this time and going as a
matter of course. They are not asking
for any changes to the Special Use Permit and they are expecting everything to
continue as it has been. The Permanent
Extension is being sought for the original permit with no changes
whatsoever. Randy Woodbury has received
no complaints in regards to Memory Garden.
The board members wish to
review the original Special Use Permit before making any decision.
Motion made to
Table by Kathy Hedstrand, seconded by Rich Keefer for Perpetual Renewal for the
Special Use Permit of Nicholas Ferreri for Memory Garden pending review of the
original Special Use request. The
representatives will not need to appear at the next meeting. The board also wishes to review the new
written Local Law as filed.
Carried. Ayes –6 Noes – 0 Absent – 1
No one from
Valeo came to the meeting for Public Hearing for Valeo, 2258 Allen St. Ext.,
Jamestown, NY for a variance for a 10 foot fence. The representative scheduled to appear was on vacation.
Chairman
Hoglin opened the Public Hearing for Donald Jr. and Deborah Balla, 3519 Lake
St., Jamestown, NY for a sideline setback variance for a deck.
Mr. Balla was represented
by Atty. Mark Bargar. Don Johnson is
the contractor that constructed the deck.
The board must look at the benefit to the applicant if the variance is
granted, weighing that against the detriment of the health, safety, and welfare
of the neighborhood or community by such a grant. The Balla’s deck, according to a survey of the property, is on
the easterly side of the property and encroaches into the 5 foot set back. Photos were passed around of the deck and
area. The cottages are close together;
many have decks in the front. This deck
is approximately 11’ in distance from the house on the easterly side. On the westerly side of the property is an
unbuildable parcel of vacant land and the undeveloped extension of Maple
Ave. The construction of this deck,
according to Mr. Bargar, has had negligible, if any, impact on the character of
this neighborhood and has not resulted in any adverse or detrimental change to
the neighborhood. There has been no
adverse impact on the physical or environmental conditions of the
neighborhood. Mr. Bargar feels that the
deck has actually enhanced the value of the neighborhood properties of the
mostly seasonal, well kept, cottages. Any
violation of the set back requirements was purely unintentional by his clients,
the Ballas. The Ballas are asking for a
variance for the deck to remain at the location that it is currently
constructed.
The board previously
granted a variance for a garage for a prior owner. Westerly line is 2.6 feet
and the sidewalk is closer than that.
This occupies twelve feet of a 121-foot property line. Randy Woodbury addressed the garage
issue. The previous owner wanted to
rebuild the garage. He wanted to widen
the original garage to the east. The
garage existed in a pre-existing nonconforming state. None of the set backs in the west or north were compliant. You cannot expand a pre-existing
nonconforming use without coming in for a variance. The board allowed the original footprint on the west and north
with some expansion to the east. The
expansion to the east maintains the minimum 5-foot set back from the neighbor’s
line. The expansion of the garage was
the expansion of a pre-existing nonconforming structure as it was being
rebuilt. It did not make the structure
any more nonconforming.
The contractor stated he
asked the owner to file for the permit as he doesn’t usually file for
permits. There is no construction
permit for this deck. He stated he
didn’t know he had to have a permit for a deck, only a covered deck or
porch. He does now realize that he
needs a permit for construction of a deck in the Town of Ellicott. The penalty for building a deck without a
permit will be to double the cost of the original permit. Mr. Woodbury feels that both the owner and
contractor are working in good faith.
The concrete walk is exempt from the setbacks.
A letter was read from a
neighbor, Sylvia Armstrong, in opposition of the Balla’s deck. While sympathizing with the Ballas, she is
unwilling to have the minimal space encroached upon. Also, she feels it changes her view of the lake to a view of the
Balla’s deck. Also, there are drain
lines between the houses requiring ongoing maintenance.
Mr. Balla apologized for
the error in not applying for the permit, and noted that he did remove a very
large tree in the middle of the front yard, which dramatically improved
everyone’s view of the lake and he asked for the mercy of the board to keep his
deck.
Mr. Johnson stated that to
make the deck compliant would take approximately 14 hours of labor at a cost of
about $800.
Motion made to
Table by Rich Keefer, seconded by Kathy Hedstrand so Mr. Balla can confer with
his neighbors and decide on options to make the deck conform to code.
Carried. Ayes – 6 Noes – 0 Absent – 1
Chairman
Hoglin opened Public Hearing for variance for Dawn Thompson, 3710 Ross Mills
Rd., Falconer, NY regarding a Special Use Permit for operation of a dog kennel.
Mrs. Thompson has been
operating a dog rescue operation at this location for probably 15 years. A
couple of weeks ago, Michael Erlandson and Randy Woodbury decided it was
necessary for her to apply for a Special Use Permit after Mr. Erlandson and Mr.
Woodbury had received complaints about the noise of the dogs barking and after
Mr. Woodbury had reason to examine the premises and thus determined that there
was a kennel operation and the kennel operation did not have a Special Use
Permit. It is located in an Agricultural
Residential zone, where a Special Use Permit is available. The permit has not been secured, so Mr.
Woodbury then asked the owner to apply for the permit to continue
operating. The number of dogs in the
kennel varies according to the number of strays brought in. Two to three years ago, she had between
50-70 dogs (including puppies) and
presently has around 30. The expenses
are all out of her own pocket. She does
not turn any dogs over to the Humane Society and she is not incorporated. When someone adopts a dog, she requests that
they reimburse veterinarian fees.
Sometimes they do and sometimes they don’t. She has approximately 6 acres of land. The closest neighbor is about 500 feet away from her property
line. The kennels are covered in
tarps. No dogs have died from vehicle
accidents, however she has had dogs die of Parvo Virus at the vets and they
have never bitten anyone. There is no
income from this operation. She never
euthanizes a dog. In 15 years there
have not been any ongoing complaints about the dogs. Mrs. Thompson states there has been increased activity of
airplanes and helicopters in the area with the NYS Police and Chautauqua County
Sheriffs Department, which may account for some of the increased agitation of
the animals. Mrs. Thompson was aware of
the recent complaints of the dogs because the Town Clerk had called her, at
least three times.
The Humane Society has
investigated her operation. About a
year ago, she refused to adopt out a dog to a lady, who then turned her in to
the Humane Society stating all her animals were skinny and underfed. Mr. Blanchard investigated the charges and
told Mrs. Thompson she needed doors on her doghouses. Everything passes except for that. She wasn’t aware that it was necessary to have doors before he
informed her of that. She then bought
carpet remnants to use as doors.
In the past 15 years, only
one person has come to her to complain and the complaint was in regards to the
dogs barking. There was a complaint that a dog got loose in the
neighborhood. The assumption was made
that the loose dog was hers and it had defecated on their porch. Three weeks later, it was determined not to
be one of her dogs per William Ohnmeiss.
Kennel definition from
Internet source: The name given to any
structure that gives shelter for dogs.
Used in the plural, the name means any building, collection of buildings
or property where dogs are housed, maintained…
Mrs. Thompson has about 12
kennels on her property. She has no
more than two dogs in each kennel. At
present, she has 31 dogs. She does not
kennel the dogs in her barns, only in the winter. She feels it is healthier to have them in the open air. She does not feel it lessens the noise to
have them in the barn as it echoes. The
barn is not insulated.
A letter was read from Dr.
Inkley of the Randolph Veterinary Clinic commending Dawn Thomas for her care
and compassion of her dogs. Also a
letter was read from Phil and Sandra Pratt offering a suggestion to muffle the
noise with a hurricane fence with insulation.
They feel Dawn provides a good and needed service for the abandoned dogs
but understand the need for the neighbors right to quiet.
The Chautauqua County
Cruelty Inspector for the Chautauqua County Humane Society, Ted Blanchard, has
visited Dawn’s property in the past. He
states the biggest problem on her property is the security of the dogs. Transmitting Parvo Virus across properties
to adjacent neighbors is a concern.
Mrs. Thompson stated the puppies are kept in her basement until they
receive their first shot. Mr. Blanchard
still did not feel that all the proper steps were being taken to prevent the
spread of the virus. The loose dogs are
a nuisance as is the barking.
Cleanliness and sanitation are also a problem. He questioned if the dogs were licensed. Mrs. Thompson stated she has an arrangement
with the Town Clerk that the dogs will be licensed after 60 days. Mr. Blanchard stated that the NYS law says
she has to have them licensed and have the rabies vaccination when she receives
the dog. It would be a liability to the
Town if this law is not followed. He
feels she should be State inspected once she gets a kennel license. She claims she is not a kennel, but rather
a volunteer foster for unwanted animals.
There is no limit to the number of dogs a person can have on their
property in the Town of Ellicott. Mr.
Blanchard wants the board to be aware that there is a liability issue. If the dogs are not licensed or do not have
rabies vaccinations during the course of time they are at the Thompson’s they
can become a liability to the Town if they bite someone. It is possible that the strays coming in may
have rabies or Parvo. The Town needs to
be aware that they could be sued over a matter such as this. Mr. Blanchard will supply the board with the
list of recommendations to remedy he gave to Mrs. Thompson.
Mrs. Thompson states she
does not need a kennel license because she doesn’t breed and because she
doesn’t have specific breeds and she does not board animals, she only accepts
strays. On average, dogs stay from
weeks to 3 months. She licensed two
dogs because they stayed for 9 months.
Most dogs leave in 60 days so they are not licensed. Last year, she adopted out 105 dogs.
Mrs. Thompson rents a
dumpster that she uses to dispose of the dogs waste. She also stated that she picks up the feces on a daily basis.
The criteria that the
board must consider for the Special Use Permit is: The location and size of the use, the nature and intensity of the
operations involved, the size of the site in relation to it, the location of
the site with respect to existing or future streets giving access to it, the
volume of traffic generated by the use, the amount of available off street
parking for vehicles shall be such to be in harmony with the orderly development
of the district and the location, the nature, the height of buildings, walls
and fences will not discourage the appropriate development and the use of adjacent land and buildings
or impair the value there of.
Operations in connection with any special use exception shall not be
more objectionable to near by properties by reason of noise, fumes, vibration
or lights than would be the operation of any permitted use.
Margaret Young of 3722
Ross Mills Rd, Falconer NY stated the back of her property adjoins the
Thompson’s property. The majority of
the dogs are in doghouses that are scattered around the property. At times, it is impossible for her to enjoy
sitting on her deck because of the dogs barking. More than once, she has had to shut her windows because of their
constant barking and because of their (the Thompson’s) hollering “Shut
up”. Speaking on behalf of the Ross
Mills neighbors, she presented a petition to the board signed by 40 people
opposing the application of Dawn Thompson requesting a Special Use Permit to
operate a kennel for dog care. Mrs.
Young feels there should be an ordinance limiting the number of dogs that a
private homeowner can harbor in the Town of Ellicott. The type of care that Mrs. Thompson provides should be left to
the Humane Society where people are trained to do this type of work. Mrs. Young stated she received e-mail from
Dave and Joan White, who are out of town, and own adjoining property to the
Thompson’s, objecting to the permit.
Mrs. Young stated that the problem with excessive dog barking has been
going on for the last two or three years.
Mrs. Young has complained several times to the Town Clerk, at least six
times. She also feels that Mrs.
Thompson’s dogs have defecated on her porches and in her driveway. Mrs. Young did call Mrs. Thompson on
this. There is approximately 150 feet
from Mrs. Young’s house to the closest dog kennel. The dogs are out during the most inclement weather. She feels having this many dogs so close to
her is devaluing her property.
Allison Rounds, 3627 Ross
Mills Rd, Falconer NY lives approximately 100-200 yards from the
Thompson’s. She can hear the dogs when
they bark. She appreciates the service
that Dawn provides and has used her services.
She has also had her stray dogs on her property causing problems with
construction workers at her home. She
is concerned that the veterinary care is not being given as soon as the dogs
are received so infection could pose a problem. Also, she did not feel that the manner in which the dogs are housed
is adequate to prevent infection from dog to dog. She does not feel that Mrs. Thompson has taken steps to make the
kennel sustainable. One person cannot
take proper care of 75 dogs. The
barking has gone on for years and the neighborhood had been extremely
tolerant. Ms. Rounds would like to see
the kennel downsized so that the dogs would possibly be better cared for. If the dogs were inside at night, the noise
would be reduced. She felt a number of
dogs that the household could reasonably take care of would be no more than
15. She suggested the possibility that
volunteers could be used to help her maintain proper care with the number of
dogs she currently has. Ms. Rounds
stated that one of the reasons a former neighbor moved was because of the dogs. Ms. Rounds passed out literature on
professional dog kennels that she thought would help to improve the
situation. The current kennels are not
meant for 24-hour use. Ms. Rounds
stated the Thompson’s kennel is a “no kill” facility but does not screen the
animals taken in properly by taking in only the most adoptable dogs. She feels the three-month time for turnover
to be unrealistic.
Melody Beckerink, 3918
Gerry Levant Rd, Falconer NY, stated that she lives a distance away and isn’t
bothered by the barking. She feels the
dogs are cared for as well as some of the other neighborhood dogs but having 30
dogs chained outside is a different matter than having only one. She has never witnessed one of Dawn’s dogs
running loose in her numerous visits there.
She feels that Dawn is doing a great service but sees no solution to
stopping the dogs from barking. Mrs.
Beckerink would like to see the neighbors lending a hand in caring for the dogs
so that Mrs. Thompson could continue to care for the strays. She feels that Mrs. Thompson takes excellent
care of the dogs.
Ellis Davison, 3819 Ross
Mills Rd, Falconer NY, lives one half mile from the Thompson’s. He can hear the dogs barking.
Robert Gunnell, 3639 Ross
Mills Rd, Falconer NY, hears the dogs and it can be pretty loud. Also he can hear someone yelling, “Shut up,
shut up” on occasion. That has happened
numerous times so he can understand what Marge is going through. He states that the noise doesn’t really
bother him but he is 4-5 tenths of a mile away. He admits that she is providing a valuable service but it is
causing some problems with some of the neighbors.
Violet Davison, 3819 Ross
Mills Rd, Falconer N Y stated that when she has to have her windows open at
night, the animals prevent her from sleeping.
She feels it is noise pollution and invades her privacy. She also feels that other people should have
consideration for her. People don’t
complain about the barking unless Mrs. Thompson has the large number of dogs
that she currently is housing.
Mrs. Thompson would love
to work with her neighbors. She was
unaware the problems have gone this far.
She has tried to locate the kennels at the furthest distance from the neighbors
on her property, she has tarped them so they can’t see as much. The kennels are 10x12 feet. She also has ¼ acre fenced in for exercise
and she does walk the dogs. No dog
enters her property without a rabies tag, if it is a voluntary surrender. The dogs do not stay on her property without
a vaccination. She believes that she
can come up with a plan to improve conditions to enable her to continue
operating the dog shelter. She is
willing to move, or barricade, or build to continue operating. The Town is looking for a plan to enable the
board to make a decision.
Motion to
Table by Pat Martonis, seconded by Rich Keefer for the request for Special Use
Permit to operate a kennel for dog care for Dawn Thompson, 3710 Ross Mills Rd,
Falconer N Y for 60 days or less. The
Zoning Board is requesting plans from Dawn Thompson and requesting a list of
recommendation from Mr. Blanchard.
Carried. Ayes – 6 Noes – 0 Absent – 1
Chairman
Hoglin opened Public Hearing for Starbucks, 944-956 Fairmount Ave. WE,
Jamestown NY for sign variances and set back variances.
Paul Potter, PE was the
sole representative for Starbucks. He had no authority to make any changes
requested. Therefore, no decisions can
be made.
Motion by Pat
Martonis, seconded by Dave Remington to deny six wall signs presented to the
Zoning Board by Starbucks, 944-956 Fairmount Ave. WE, Jamestown NY.
Carried. Ayes – 5 Noes – 1 Absent – 1
Motion by Dave
Remington, seconded by Rich Keefer to deny all the ground signs presented to
the Zoning Board by Starbucks, 944-956 Fairmount Ave. Jamestown NY on the
grounds that they are excessive.
Carried. Ayes – 6 Noes – 0 Absent – 1
Motion by Pat
Martonis, seconded by Dave Remington to deny the requested 26’ 3” front set
back presented to the Zoning Board by Starbucks, 944-956 Fairmount Ave., WE,
Jamestown, NY
Carried. Ayes – 6 Noes – 0 Absent – 1
Motion by Ang
Cimo, seconded by Pat Martonis to deny the requested parking lot set back from
30’ to 11’ 5” and from 30’ to 25 feet on the NE side presented to the Zoning
Board by Starbucks, 944-956 Fairmount Ave., WE, Jamestown, NY
Motion made by
Pat Martonis, seconded by Kathy Hedstrand to adjourn the meeting at 11:10 PM.
Carried. Ayes – 6 Noes – 0 Absent – 1
______________________________________
Karyn E.
Okerlund, Secretary
NOTE: Wayne and Dawn Thompson have two parcels
of land.
336.00-3-14 (2-1-27) - 1.30 acres
337.00-1-66 (3-1-41.2) - 167’ x 310’ (1.19 acres)
TOTAL LAND OWNED BY THE
THOMPSON’S – 2.40 ACRES
William Ohnmeiss stated he never made a comment on the dogs defecating
on the area porches. He also stated he
wasn’t aware there were a large number of dogs there until about 3-5 years ago.