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 SEPTEMBER 29, 2008 AT 7:00 PM.

PRESENT:= Chairman Steve Hoglin, Dave Remington, John Merchant, Kathy Hedstrand, Allan

= Hendrickson, Jean Holton, Attorney William Wright, Code Enforcement = Officer

= Randy Woodbury and Secretary Valerie Pierce

ABSENT: <= /span> Phil Pratt

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

Chairman Hoglin had one correction for the minutes. O= n page 255 of the minutes the dimensions of Mr. Jensen’s existing house were= incorrect. His house is approximately 700 SF.

Motion m= ade by Al Hendrickson, seconded by John Merchant to approve the minutes of the Aug= ust 25, 2008 meeting with the one correction.

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Carried.= = Ayes – 6 = &nb= sp; Noes – 0 = = &nb= sp; Absent – 1

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

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Chairman Hoglin reopened the public hearing for = New York RSA No. 3 Cellular Partnership d/b/a as Verizon Wireless for the r= enewal of a special use permit for a wireless cell tower.

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Randy Woodbury told the Board he had received a letter from Nixon Peabody LLP, Attorneys at Law, which requested this be ta= bled until the October Zoning Board meeting.&nb= sp; There has been progress on the water issues with the visit to the site. Randy stated they shoul= d come back in October with some solid plans that address the drainage issues.

Attorney Wright said there were issues with the structural integrity as well as the drainage. The applicant has not been before = the Planning Board. This applicat= ion will remain on the table.

Mr. Hoglin reopened the public hearing for Kevin Jensen, 3935 Ross Mills Rd., Falconer, NY to expand and modify one dwelling to make two dwellings, including a review of= pre-existing non-conforming buildings and associated limitations.

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Mr. Jensen provided a survey, which the Board had requested at the last meeting. Randy said there had a survey by Don Long in 1987 and also he had an= old County map that was several decades old. Mr. Jensen said that Randy suggeste= d he remove the front porch. If the porch is removed, the right-of-way line is two feet away from Mr. Jensen= 217;s house. The Board was hoping t= o find that the front of the house was much further away from the right-of-way.

Mr. Jensen said he would be able to remove the f= ront porch if he is allowed to add on the back. It has been there since the house was built and should be “grandfathered in” but he does understa= nd that changes if he adds on.

Attorney Wright stated this is a non-conforming = use residence that does not meet the setbacks.= Randy said that if the porch is removed and not in the County right-= of way, a variance could be granted that would allow him to issue a building p= ermit.

Discussion followed and Attorney Wright made the determination that this is not an issue that can be resolved by the grantin= g of an area variance for a structure that has been there over 100 years. He sai= d the code enforcement officer is without the authority to grant a building permit without the variance.

Mr. Jensen has a non-conforming use that can be = maintained but not altered or expanded unless the non-conforming use is resolve, which= in this case is building within compliance.&n= bsp; He could move the house back on the property. Randy agreed but thought there sho= uld be some process to get beyond the fact it does not comply and cannot be expanded. Mr. Wright reviewed= the non-conforming section of the code (146-63). Section 146-63 D 2 states no non-conforming use can be extended or expanded. Attorney Wright explained to Mr. J= ensen that a non-conforming use is a legal use in existence at the time this code became effective, which rendered it illegal.

Motion m= ade by Al Hendrickson, seconded by Dave Remington to deny this application based on the non-conforming use of the structure.

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Carried.= = &nb= sp; Ayes – 6 &nb= sp; = Noes – 0 = &nb= sp; Absent – 1

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Chairman Hoglin opened the Public Hearing for Robert W. Swartz, 2073 Buffalo St. Ext., Jamestown, NY, for a Special Use Permit for a home occupation for internet sales of mopeds= .

Mr. Swartz wants to sell mopeds out of his home.=

· he has applied and received a business permit but needs to apply fo= r a dealer’s license

· Attorney Wright said that the Department of Motor Vehicles requires= Mr. Swartz to have a sign - Mr. Swartz thinks that the minimum sign required by= the Department of Motor Vehicles is 2 ½” by 2’

· this is a residential zoned area

· Mr. Swartz stated he would move to a store front if the business gr= ows

· there will be some inventory on the property - the guidelines states that Mr. Swartz has to have room for a least three vehicles

· there will be no repair at the site – Mr. Swartz will put them together for the customer – any warranty claims and servicing would be handled by the representative - Mr. Swartz does not know which representative he will be dealing with yet becau= se he has looked at several – any parts needed for repair would go direc= tly to the owner’s home

· Mr. Swartz will have no other employees

· there is no limit as to what Mr. Swartz has to sell per year <= /o:p>

· Mr. Swartz works full time so any appointments to see the vehicles would be after 4:30 PM until approximately 7:00 PM - he does not want to ge= t a dealer’s plate so if customers want to try these out they would have = to do it in his blacktop driveway

· presently there will be no advertising except for the internet=

· Mr. Swartz said that he has researched the market - he can match or beat the internet prices but he does need to get the dealer’s license= – he is required to have electric service and a phone to get his dealer’= ;s license

· as far as he knows he does not have to have any insurance - he does= not have to be bonded

· the price of these vehicles vary – the highest cost is $2,000=

Randy asked Mr. Swartz how long of a start up pe= riod he would need before making the decision to move to another premises. Mr. Swartz said he thought it woul= d be within a year. Kathy Hedstran= d said that she thought it would be more volume dependant then time dependent, so = she suggested the Board put a maximum time limit on the permit. Randy agreed and said that he would like Mr. Swartz to come back in one year.

Mr. Swartz said he has spoken to his neighbors a= nd they do not have any problems with this permit.

Attorney Wright reviewed the code and stated tha= t a home occupation is a sub-category of a Special Use Permit. Special use perm= its are allowed in residential zones under code section 146-9. The special use permit criteria ar= e in 146-64. Home Occupations are addressed in section 146-5 (under definitions) and in section 146-71 A, whi= ch states that the Zoning Board of Appeals shall not issue a special use permit for a home occupation unless it first determines that the home occupation i= s customary and will be conducted exclusively by persons residing within the dwelling u= nit. No home occupation may occupy more than 25% of the total dwelling space or = 500 SF, which ever is less. There are building code requirements as well, where= the State has imposed criteria on home occupations. Home computer work or home office = is specifically mentioned in the code as a customary use. Mr. Wright agreed th= at because this is different than what has been before this Board he thought a= one year period would be applicable.

Randy stated that the garage does meet the curre= nt separation code for fire separation between occupancy and did not think the garage the mopeds would be in would not be introducing any additional fire hazard to the house. Randy sa= id he will look at the space. Mr. Swartz= said that his garage is unattached and is approximately 56 to 58 feet from the house.

There were no neighbors present and the Town did= not receive any correspondence concerning this application. <= /p>

Attorney Wright made a determination that this i= s a Type II action under SEQR.

Al Hendr= ickson made a motion, seconded by Jean Holton to approve the application for Robert Schultz for a Special Use Permit for a home occupation for moped internet s= ales at 2073 Buffalo Street Ext., Jamestown, NY for a one year period.

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Ayes = 211; 5 = &nb= sp; = Noes – 1 (Remington) = &nb= sp; Absent – 1

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Chairman Hoglin opened the Public Hearing for J. B. Crosby, 2327 Camay Lane, Jamestown<= /st1:City>, NY, for a variance for a = second detached 24’ by 28’ garage in a residential zone.

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Mr. Crosby presented a satellite image, which sh= owed the existing house and garage and the proposed garage.

His property is approximately 300’ by 300’and the proposed garage is 40’ from the west property line and 75’ from the north property line. <= /span>
Mr. Crosby also presented photos of his existing property wher= e he is proposing the new building - He did a hand drawing of the proposed garage with dimensions and details of the construction.
He is planning on metal sides and roof with windows and an overhead door.
He has three vehicles and currently a two car garage so he is looking for additional space for a vehicle and wants the two stories s= o he can have additional storage space.&nb= sp;
He has talked to his neighbors and they have no problem with t= his garage - He is trying to keep the building in the back corner of his property= to isolate it as much as possible.
Mr. Crosby does = not initially intend to extend his existing driveway - He wants to put in gravel to the new garage.
His original plan was to have a 10’ by 16’ shed but that would not solve the parking problem for his third vehicle. Talking to contractors he was looking at a 24’ by 36’ garage but has reduced that to 24’ by 28’. =
His existing garage is 22’ by 30’.

Randy said that the total for the two garages wo= uld be 1332 SF. He stated t= hat Mr. Swanson and Mr. Cusimano got approval for a larger second garage in the same neighborhood. Mr. Crosby has two acres of land. Randy said that by loo= king at the photograph you can see the open space for a second garage.

Attorney Wright stated this is an area variance under 267 B of the Town Law, which is the balancing test where the Board is required to balance the benefits to the applicant versus the determent to society generally. There are = five criteria the Board must review. Mr. Wright said this is exempt as a Type II action as the construction of an accessory pertinent to a residential structure.

Secretary Pierce stated there was a telephone ca= ll from Mr. Bob Pickett, 152 Willow, Jamestown, NY, stating he had no o= bjection to the granting of this variance. Randy said that he received communication from Mr. Carlson who was granted a larger second garage down the road saying he had no objection to this project.

Motion m= ade by Jean Holton, seconded by John Merchant to approve the variance for J. B. Crosby, 2327 Camay Lane, Jamestown, NY to construct a second detached 24= 217; by 28’ garage.

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Carried.= = &nb= sp; Ayes – 6 = Noes – 0 = &nb= sp; Absent – 1

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Motion m= ade by John Merchant, Al Hendrickson to adjourn the meeting at 8:05 P.M.

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Carried.= = &nb= sp; Ayes – 6 = &nb= sp; Noes – 0 = &nb= sp; Absent -1

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Valerie Pierce, Secretary=