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 OCTOBER 30, 2006 AT 6:30 PM.

 

PRESENT: Chairman Steve Hoglin, John Merchant, David Remington, Angelo Cimo, Pat Martonis, Kathy Hedstrand, Attorney William Wright, Code Enforcement Officer Randy Woodbury, and Secretary Valerie Pierce

 

ABSENT:  Richard Keefer

 

Chairman Hoglin opened the meeting at 6:30 PM and Secretary Pierce called the roll.

 

Motion made by Ang Cimo, seconded by Pat Martonis to approve the minutes of the Sept. 11 and 25, 2006 meetings.

 

Carried.                 Ayes – 6                           Noes – 0                       Absent – 1

 

Attorney Wright swore in all present that would be giving testimony at this public hearing.

 

Chairman Hoglin opened continuance of the public hearing for Dawn Thompson, 3710 Ross Mills Rd, Falconer NY for a Special Use Permit to operate a dog kennel.

 

Atty. Goodell: About two months ago, Mrs. Thompson came before the board for permission to operate a kennel for dog rescue operation.  At that time, you asked her to go back and see what could be done to mitigate any adverse impacts of the kennel on the neighbors.  Since that time Mrs. Thompson has put in a tremendous amount of time and energy to present the proposal that you will receive tonight.  We believe it addressed those issues in a comprehensive and effective manner.  The issues addressed are:  Erecting a fence. The fence will have soundproofing material made specifically for soundproofing.  The out buildings on Mrs. Thompson’s property block the sites and sounds coming from the kennels.  We had Planning Board Preliminary Review on just the fence.  We intend to put permanent covers on the roofs of the dog kennels.  We have equipped the dogs with bark collars.  Visitors coming regarding the dogs are by appointment only.  There is very low traffic volume.  When enclosed in the fence, the visual stimulation will be reduced.  The net effect will substantially reduce the noise.  We have received a grant of $10,000 to move forward on this project. 

 

We hired a Certified Residential Appraiser to give us an evaluation of the possible impact of this kennel on neighborhood property values.  He concluded these kennels would not have an adverse effect on the neighborhood real estate values.

 

Mrs. Thompson’s objective is to keep the average number of dogs to 35 or below.  That is about half as many dogs as she handled last year. 

 

Atty. Goodell has written opinions from two experts on kennels, to understand if this facility is appropriate for handling that number of dogs.  Dale Smith, who formerly operated Sunny Side Kennels, Townline Rd., Gerry NY, and Fluvanna Ave. in Jamestown, feels it is not a problem for one person to handle that many dogs. 

 

Atty. Goodell also received a letter from Dr. Robert Rappole, a licensed NYS Veterinarian who operates Moonbrook Veterinary Hospital.  He advised Atty. Goodell that they typically average about 50 dogs and he has one person that works part time to maintain them.  He feels it would not be a problem for one person to handle 35 dogs. 

 

A sound engineer, John Tilhaber, was contacted.  He works for Harrington and Sandberg Architects.  He states that sound is not directly related to the number of dogs.  It is logarithmic between energy, distance and sound.  The level of sound will not be affected whether you have 20, 25 or 35 dogs. 

 

The County Health Dept. was contacted regarding sanitary conditions.  The soil is gravel and has excellent drainage.  They stated there is no environmental impact.  The dogs are about 3 times further away from the nearest well than they require.

 

We have been accused of housing dangerous dogs.  We run an adoption program and our objective is to get the dogs adopted.  We had one dog that we felt was not appropriate for adoption and he was put down.  We also have been accused of not performing a temperment test on the dogs, which is not true.  We have been accused of allowing dogs to run loose.  The dogs are in cages or on leashes, even though the Town of Ellicott does not have a leash law.  With our proposal, they will not only be inside a cage, but will be inside the fence.  The dogs are well cared for and are seen by a veterinarian when they come in.  They are fully bedded and have all their shots and receive appropriate medical care.  We have been accused of violating the Ag and Markets Law by not having a dealer’s license.  We are not a dog dealer, we are a dog rescue.  We do this on a not for profit basis.  The senior attorney at Ag & Markets, Rick Arnold, stated that the State requires you to have a license as a dealer if you sell more than 9 dogs per year for profit.  Since we don’t sell them for profit, we don’t qualify.  I asked him if Ag & Markets could make courtesy inspections of our facility.  We are proud of our facility and the care we provide.  The facility was independently inspected by another rescue operation out of Salamanca.  They gave us an excellent report and I believe our application should be approved. 

 

Atty. Wright:  What is the status of the real estate swap?

 

Atty. Goodell:  We are working with Atty. Doug Spoto to put together the deed description.  Last week, Atty. Goodell got a copy of them from Steve Swanson. 

 

Mrs. Thompson:  The number of dogs I keep can depend on their sizes.  I try to deplete my numbers for winter. I will keep them together in one kennel mostly because they have been together previously.  I have 8 volunteers that will come as often as I need.  Some come every weekend, two will come daily if necessary and 6 will come every weekend if needed. 

 

Ang Cimo:  I have a question on the bark collars.  Is this method approved by any veterinarian?  If the dogs learn not to bark because of shocks, isn’t that inhumane if they don’t respond?

 

Dr. Inkly:  I have 3 dogs with bark collars and I don’t consider the use of the collars as inhumane.

 

Mrs. Thompson:  I have twelve dogs that wear the collars, that are the predominate barkers.  I can’t control the amount of shock they get.  The collars are on no more than about 12 hours a day.

 

Atty. Goodell:  Dawn doesn’t charge when a dog is brought in from a Town of Ellicott resident or the Dog Control Officer.  The Humane Society does charge, thus the rescue operation is saving the residents of the Town of Ellicott an estimated $12,000 a year. 

 

Mrs. Thompson: The average turn around time for a dog under nine months of age is about two weeks.  With older dogs there is a slower turn around.  It has never happened that an older healthy dog hasn’t been adopted out. 

 

Mrs. White:  I am not against what Dawn is doing.  I am here to strictly talk about property values, quality of life, and noise.  We feel the number of dogs should be kept in the 20 range.  A lot of dogs are kept in the house and a lot in the yard.  I can see dogs that have been tied up for a long period of time.  I look at it every single morning.  I have had dogs housed in my garage because they were cold and crying.  I have tried to help her.  I am five hundred and some feet away and I hear dogs barking, even in the fence.  We want her to have a nice, happy, safe, warm rescue and we are trying to help her with this.  We have offered to pay for all the deed work regarding transfer of property plus we have offered her $1,000 and my husband has offered to dig a ditch for the electric service.  I am thrilled that Dawn is doing this.  I commend her and Wayne.  They have cleaned up the area behind the barns and it looks great, things are starting to happen.  It is just hard to watch the animals out in the elements every day.  

 

Adrienne Rounds:  Dawn has cleaned things up tremendously.  This has changed dramatically and I am thrilled.  We still hear dogs though and feel 20 should be the limit. 

 

Atty. Goodell:  We cannot implement our proposal without the Zoning and Planning Boards approval.  So, there are still dogs in the open. 

 

Pat Martonis:  How often does the Health Dept. inspect?

 

Mrs. Thompson:  They inspect any time anyone who comes to her house and complains.  When my vet comes to give shots, she would tell me or call the Health Dept. if she saw anything abnormal.  There are no yearly inspections required by either the Health Dept. or Dept. of Ag.  Any complaints should be given to the Dog Control Officer.

 

Steve Hoglin:  If Dawn is granted this variance, she would still have to come back to this board every two years to renew.  Also, if there is a violation within this two-year period, you can come before the board and explain. 

 

Mrs. White:  We are exchanging land with Dawn because we realized the dogs were being cared for on our land.  We were concerned about liability issues.  We are giving her that same piece of land she had the dogs on.  I did not want to give her the entire amount that she now has, but we decided to do it if Dawn promised to keep the area neat.  The area behind the barn was agreed to be an animal free zone.  No igloos, no tie downs or no housing of animals.  She can walk or exercise the dogs just no housing.  No animals are to be housed from our property side to the fence.  This will be put into the deed.

 

Atty. Goodell:  We have done everything reasonable and practical to mitigate the sound.  We are here with a proposal that puts these dogs inside a sound insulated fence, inside a building, with bark collars, on the far side of the barns.  We are not talking about last year or last week.

 

Mrs. White:  I want to make it clear that we are supportive of Dawn and her kennel.  We commend her for what she is attempting to do and her effort to change things for the betterment of the community.  She is excited about this whole new project that is going on.  I am asking that the noise quality in my community will get better. 

 

A tape (taken by Randy Woodbury) of Dawn’s kennels and the area around them was shown at the meeting.  Mr. Woodbury was accompanied by Mr. Hoglin and Atty. Wright at the time the video was taken. 

 

Mrs. Thompson:  The hardest and most expensive insulation is on the doors.  You can’t put that insulation on the farthest side because it creates a bouncing effect of noise.  A different type of insulation will be used there.  The free area, where they run, will have no insulation.  Usually, two dogs run at a time.  I usually let one kennel of dogs run at a time in the free area. 

 

Mr. Woodbury:  Has specs for sound proofing material.  The product Dawn is using is used in shelters in other areas.  The average sound reduction is 27%.  Frequencies cause this percentage to vary. 

 

Mr. Inkley:  The conditions at Dawn’s are far from perfect, but at the same time some breeders’ kennels are in worse shape than some of the worse cases that Dawn brings in.  She is on top of all of our rescue groups as far as the effort she puts in and the animals she brings us. 

 

Atty. Goodell:  We are working with Jerry Erickson, a licensed engineer, to help us with the roof design. 

 

Atty. Wright:  What is the assurance to this board, that when the kennel operation isn’t full, if dogs become your dogs, how will it be distinguishable and enforceable in the future as to what dogs are part of your rescue operation and what dogs are your dogs.

 

Mrs. Thompson: I have four dogs that are sick, that no one ever sees.  I have two rottwellers that I am treating for heartworm and a poodle.  I only adopt those that are going to die.  The restrictions that we went over with Mrs. White will apply to my own dogs.  My dogs have a fence on the outside of my home. 

 

Mrs. Young:  My one concern is the number of dogs, including her own personal dogs.  The area has to be completely closed or moved to another area, where they can’t see me as I walk out my door.  I am also concerned about the value of my property because a broker told me the kennels would definitely lower the value of my home. 

 

Mrs. Thompson:  There will be insulation with barn board.  It will be like an insulated barn.  The dogs won’t be able to see Mrs. Young’s house. 

 

Allison Rounds:  Is this roof going to be insulated, or just a piece of tin?  Tin will get very hot in the summer.  I am concerned how warm or cold it will get in there.  There needs to be a hard number of limits on the number of dogs. 

 

Mrs. Thompson:  The insulation will be whatever I can produce to cut down noise.

 

Atty. Goodell:  The roof is going to be designed for ventilation and to provide protection in the winter.  

 

Mrs. Young:  Are you going to have lights in this area, isn’t it going to be awfully dark?

 

Mrs. Thompson:  Yes, we are trying to get underground service from the garage.  I have received a $10,000 grant, which I will loose part of because the roof won’t be built in time.  By the time this is done, I will have spent about $14,000.00 of my own money.  I have a Business Certificate because the board had suggested it.  I am non-profit. 

 

Atty. Goodell:  You are required to get a Business Certificate if you use and assumed name.  That means if you are using a name other than your own personal name. 

 

Motion by Ang Cimo and seconded by John Merchant to go into executive session to seek legal counsel from our board attorney.

 

Carried.                         Ayes –6                 Noes – 0                Absent –1

 

Kathy Hedstrand:  One of the concerns of your neighbors is the numbers of dogs you will kennel, the dogs you have had in the past and the number you are housing right now.  On your own merits and your word, would you be willing to minimize the number of dogs when possible. 

 

Mrs. Thompson:  I never plan on getting over 50 dogs, I don’t want to exceed that.

 

Mr. Woodbury noted that by changing the location of the kennels, the surface drainage would now be to the southwest instead of the west.

 

Mr. Hoglin:  Noise level is to be mitigated or reduced by sound barrier materials, relocation of kennels and roof over kennels.  Tarps are coming down.  The position of the fence and kennels are designed to improve aesthetic character.

 

Motion made by Pat Martonis, seconded by Dave Remington to accept the conditions set by the Zoning Board of Appeals for the kennels, that the project will not have a significant adverse environmental impact. 

 

Carried.                         Ayes –6                 Noes – 0                Absent –1

 

Motion made by Pat Martonis, seconded by Dave Remington to approve a kennel for rescue dogs for Dawn Thompson at 3710 Ross Mills Rd. with the following conditions.  First condition is that the land agreement (as identified on the map by Steven Carlson, licensed land surveyor) between Margaret Young, Mr. & Mrs. David White and Mr. & Mrs. Wayne Thompson goes through.  Second that the Planning Board session goes on.  The drainage issue is to be addressed.  Third is that the roofed kennels contain all of the rescue animals.  Fourth the quarantine area is to be enclosed as agreed upon so it will be out of the neighbors view.  Fifth the animal free zone agreed upon by the neighbors and Dawn Thompson (as shown on the Steven A. Carlson map) be maintained as a animal free zone.  No dogs will be housed on it or kennels built on it.  Sixth is that the sound proofing in the fenced in walls, which has been stated to be on three sides is to be completed.  This will be granted for one year only.  At that point, the Zoning Board will assess it again.  Seventh is that if one or both of the barns (which are site barriers) were to be torn down or burned down another barn would be constructed in a timely fashion.  

 

 

Carried.                          Ayes –6                 Noes –0                 Absent –1

 

Chairman Hoglin reopened the Public Hearing for Harley Davidson of Jamestown NY for Sign Variances at 1951 East Main Street, Falconer NY. 

 

I’m David Reed from Falconer Enterprises and Harley Davidson.  We are not going to put up a pole sign and are requesting the signage for two identical one hundred thirteen square foot Harley Davidson trademark signs and an 82.3 square foot Harley Davidson of Jamestown sign to be put on the building.  The large signs are both illuminated.  The Harley Davidson sign is backlighted.  We also need a variance because the top of the circle is 40 feet from the floor level.  The building is 36,000 square feet so it should handle that square footage of signage.  The sign on the north side is critical because it is most visible from the I-86.  A single sign is permitted and can’t be over 30 feet if it is a ground sign.  A ground sign can’t be over 100 feet.

 

Harley Davidson is allowed to have roughly 270 sq. ft. of wall sign and they are asking for 308.3 sq. ft. and splitting it up with three signs. The variance would be about 38.3 extra of total sq. footage.  They do have some smaller signs, but due to the size of the building, he didn’t feel it would look good on such a large building.

 

We need an area variance from one sign to three signs and the increase in square footage.  The height of this building exists because the Zoning Board allowed it.  It is on the record that if the height of these towers is being used for the purpose of putting signage on them then the board is not inclined to grant the height of the towers. 

 

Ang Cimo:  For a building that large, the signage looks very appropriate. 

 

 

Motion by Ang Cimo, seconded by David Remington to approve variance for three signs from the allowed one sign.  Total square footage not to exceed 308.3 sq. ft. and at a height not to exceed 40 feet for Harley Davidson of  Jamestown for 1951 E Main St., Falconer NY.

 

Denied.                 Ayes - 2                          Noes -4                          Absent –1

 

Motion to adjourn by Pat Martonis, seconded by John Merchant at      PM.

 

 

 

 

_____________________________________

Valerie Pierce, Secretary