ZONING BOARD OF APPEALS
MONDAY, SEPTEMBER 24, 2007
Members Present: Ms. Marteney
Mr. Darrow
Ms. Brower
Mr. Bartolotta
Mr. Westlake
Member Absent: Mr. Baroody
One Vacancy
Staff Present: Mr. Fusco
Mr. Hicks
Mr. Selvek
APPLICATIONS
APPROVED: 33 Delevan Street
APPLICATION
TABLED: 173 and 175 South Street
Mr. Westlake: Good evening, this is the Zoning Board of Appeals. Tonight on the agenda we have three items:
95 Swift Street
33 Delevan Street
173 and 175 South Street
This is a seven-member board; we are short two members and have one vacancy. Please be advised that you will need four affirmative votes for your item to pass. If you wish to table your item until next month when we may have six members you may do so.
Last month’s minutes, any additions or deletions? If not stand as written.
ZONING BOARD OF APPEALS
MONDAY, SEPTEMBER 24, 2007
95 Swift Street R1A zoning district. David Kromer, applicant. Area variance to allow front yard parking and a 25-foot area variance for the setback requirements of the parking area.
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Mr. Westlake: 95 Swift Street, are you here?
We will come back to it at the end.
Mr. Westlake: 95 Swift Street, one more time.
Since 95 Swift Street had missed two meetings in a row, they will have to reapply, go through the whole process again, they just can’t come before the board.
ZONING BOARD OF APPEALS
MONDAY, SEPTEMBER 24, 2007
33 Delevan Street. R2 zoning district. Wayne & Jeanne Finch, applicants. Area variance of 2 feet of the required 4-foot set back from the rear property line for placement of shed.
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Mr. Westlake: 33 Delevan Street? Come to the microphone, state your name so we can get it on the record and tell us what you want to do.
Mr. Finch: Wayne Finch, I would like a storage shed in the side yard and it is 10 feet from the house which is required but in order to keep it 10 feet from the house I am suppose to be 3 feet from the property and I am two feet from the property line, I would like a variance there.
Mr. Westlake: So what you are seeking is a 2-foot area variance?
Mr. Finch: Yes.
Mr. Westlake: OK. Any questions from the board?
OK, is there anyone wishing to speak for or against this application?
Seeing there is none, we will discuss amongst ourselves.
Mr. Darrow: Very, very small lot, managed to justify what they are asking, certainly not excessive.
Ms. Marteney: It is up near the fence.
Mr. Bartolotta: Is that the same property adjacent the letter that we here?
Mr. Finch: Yes.
Mr. Bartolotta: Property owner on the other side of the fence?
Mr. Finch: Yes.
Mr. Darrow: I would like to make a motion that we grant Wayne and Jeanne Finch of 33 Delevan Street a 2 foot area variance for the purpose of putting a 6 x 8 foot storage shed in the area as submit in plot plan.
Mrs. Brower: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Darrow
Mrs. Brower
Mr. Bartolotta
Mr. Westlake
Mr. Westlake: Application has been approved; you are all set with your shed.
ZONING BOARD OF APPEALS
MONDAY, SEPTEMBER 24, 2007
173-175 South Street. R1 zoning district. EBY Realty/Bickford Sr. Living, applicants. Use variance for use of parcel as an assisted living residence.
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Mr. Westlake: 173 – 175 South Street. Are you here please? Come to the microphone and state your name and tell us what you want to do.
Mr. Tehan: Good evening, I am David Tehan, I am a local attorney. I am here with Richard Eby of the realty group seeking a variance for the construction and subsequent operation of an assisted living facility on South Street. We have additional information to pass to the board about the company. (Passes out information to board). Mr. Eby will be making a presentation shortly relative to this company and the proposal. But I wanted to touch on the elements of the variance in the meantime.
I don’t want to cite the application word for word, just touch on a few issues here. Firstly the variance will positively affect the health, safety and welfare of the neighborhood. You will see in Mr. Eby presentation that traffic as it relates to this type of use for this facility will be limited. Lot of the elderly residents no longer drive, there will be visitors, some deliveries and then the staff as well.
The aesthetics, this will have a residential feel, it will be a one-story building and will fit more towards a residential neighborhood then any other type of commercial use that you would see. Again, with an assisted living facility there isn’t really a lot of noise generated with this type of use. Most of the noise is going to be from traffic and again as I said, it will be limited. The hardship is one of the important factors here; this is not a self-crated hardship. This property has been a commercial premises since its original construction in 1930. Various commercial entities have operated at that location from the Bisgrove Dairy, The South Street Mini Mart, Maggio’s Sub and presently Nino’s Pizzeria. Records which were obtained from the City Assessor’s Office recognizes it as a commercial class property as early as 1965 as far as the zoning is concerned and remains recognized as a commercial entity or commercial property in a R-1 zone. The hardship is unique to
the property.
As I mentioned the property has historically been commercial in a R-1 zone and the development of this property is a residential lot is limited by the stream located at the southern end of the parcel, so it is difficult to break it up for residential building lots. It certainly could be done but it makes it more difficulty in addition you have to worry about the some of the environmental aspects of building near that stream which this proposal does not basically will be used as a buffer. The proposed use will not alter the character of the neighborhood. It is a R-1 zone; it is going to have a residential feel. Looking at it from a commercial aspect again the property as it stands now has always has been more of a heavy retail commercial oriented use. This is going to have
a more residential feel to it.
In that area there have been several there have been several non-residential uses. We have got the Harriet Tubman Home Tour Site, the New York State Armory, White Chapel Funeral Home, and of course the old Kalet Nursing Home which is now closed down at the present time. This is another key element, the deprivation of economic benefit. As a residential building lot divided into the 4 parcels and that is primary based upon the location of that stream and dividing from there, again limited market value. Attached to the application was a break down of the best that I could find for comparables being on Prospect Street which are building lots which were all sold for an average range of $28,100 to $28,500 per lot. If you were then to sell off 4 building lots you are looking at a
sale price of about $112,500, you would then also have to subtract from that the cost and demolition and removal of what is presently there and also the preparation of the building lots for utilities and such.
In setting aside for this application as a local attorney that practices in elder law, there is a need for this type of assisted care in this community. We have an aging population where either spouses are caring for loved ones, you have children carry for their parents and that is certainly admirable, but care givers tend to wear down, it is a hard job. Also as Mr. Eby will present there will be 7 u7nits for memory unit for those with dementia and Alzheimer not too far advanced. This type of care is needed in this community. At this time I would like to turn the presentation over to Mr. Eby.
Mr. Eby: Thank you. My name is Richard Eby and I am with the Eby Group and Bickford Sr. Living. I would like to take a few minutes and give you a little background of who we are, what we do and what our desires are to do here locally. Our company is about 16 years old, my brother started it, it is a family owned company. Bill started it about 16 years ago, he sold his dealership in the Kansas City area, at that time he had a mother-in-law who was failing, at that time you could either put them in a skilled nursing facility or you brought them into your home, those weren’t very good options for him at that time. He heard about the concept of assisted living, attended some seminars, decided it was a good
idea, built is first assisted living residence and it did very well and since that time we have continued to grow.
His mother-in-law’s name was Mary Bickford and that is where the name Bickford Cottage comes from. We currently own and operate 36 residences in the central part of the United States; primarily we also have three under construction in Chicago and one in Lansing, Michigan. We have sites that are currently operating in Michigan, Indiana, Illinois, Iowa, Nebraska and one in Missouri. Our next phase of expansion was to be in the New England states, primarily New York and Massachusetts. We have been through the entire process here in Webster, which is a suburb of Rochester, and of course hoping to do one here in Auburn and Fayetteville-Manlius in Syracuse, we have one that we are working on in Albany.
Additionally we have sites in Massachusetts that are under development.
This is our typical Bickford Cottage (points to sketch). This one is in Iowa I believe. You will notice that they do have a strong residential appearance, a single story building, residential roof line with gables, mixture of building materials, here we have lime stone rock, some brick, brick over here, this is very typical of our model. Here is another one, not easily seen, this is in New England. We tend to modify our buildings to fit the local architecture and to appeal to the local clientele. This is one that has been proposed and been approved for Williamstown, Massachusetts. Our proposed site here is, current location of Nino’s Pizzeria. An aerial map of Metcalf Drive and here is
South Street, and here is the site. A little closer view of it, here is the pizzeria, notice that there is a stream that cuts through here, the southern portion of this we do not plan to develop, that will remain natural. To give you an idea of the concept site plan that we have, this would be South Street here, the stream runs about through this area and the location of the pizzeria is right about in here I believe.
You will notice that the building itself has an open courtyard in the middle of it. It is 46 units, 39 of the units are assisted living and back here we have a 7-unit wing, which is memory care. We need to separate those two because this takes a different staffing level, it takes a different form of operation, the activities that we plan for them, so forth, the way you manage and work with the residents, it differs so they are when they become more advanced then they must go here. We would be a licensed facility, we will be licensed by the State of New York, we have to apply for a Certificate of Need and it is a lengthy process, we are currently, we are hoping 2/3’s of way through that process for Webster and Fayetteville-Manlius. Notice the open courtyard in here, there
is a canopy out front where loved ones can drive up and pick or drop off the residents, there is some parking on the other side, parking here (points to sketch), sidewalks around. The open courtyard is used by the residents, very few of our residents will go outside the building parameter, most of them will spend their time here. One thing it is more secured and it has a seating and landscaping that is appropriate for them. Again this is simply a concept plan, it is not engineered fully at this point. There is a circular flow pattern, which is very attractive and very useful for residents because they can walk through the hallways here and get exercise. Another thing is sometimes they get a little confused on exactly where their room is and so they can walk through the hallway and not to have to stop and ask someone, it is a matter of dignity in a lot of cases, to get to their room and personal dignity is a big, big issue with us.
Here is an example of the product that we are proposing right now for Auburn. This is recent model that we now have four in operation in Michigan. Notice here again the residential roof line, car port, mixture of brick and stone and this would be basically what the view of the building would be as you drove up South Street. The north elevation if you were the adjoining neighbor on the north and looked kind of to the southwest this is kind of the open courtyard towards the memory care wing. This would be the west elevation, we plan landscaping along there much like what we have in Midland and this is what the rear of the building looks like. This is the interior courtyard, this again would be a north elevation, this would be a south elevation, what the south side would look
like only we propose to have parking out here and this would face the stream.
This is a typical assisted living residence and what services do we provide at Bickford Cottage, a typical assisted living resident is a person approximately 85 years old, who need assistance with his ADL, those things could be anything tying their shoes, dressing, bathing, those types of activities. A good example of this happens to be my mother-in-law; she lives in Montana, 91 years old. They don’t have assisted living there where she can take up residence. She doesn’t want to leave there because she has a number of sisters, believe it or not that still in the area and her son lives on a ranch outside of town, so she doesn’t want to move to be near us. So as a result she stays in a skilled nursing facility. Assisted living residents rates are
approximately 70% to 75 % of what a typical skilled nursing would be. We provide a long list of services, housing, home like atmosphere, 3 meals a day, sit down dining, medication reminders, assistance with bathing and dressing, personal hygiene, laundry, provide a wide range of social activities, nightly room checks every 3 hour intervals and confusion management. This is a typical living area would look like with a fireplace, TV, where they all socialize in this area. This is the common dining, sit down dining, they are served their meals, a very social time for them. This is a sunroom that is on the interior courtyard, very cheery room. This is just another one of the sitting areas and community areas, where they play games, whatever. This is a typical resident’s room, they do not have kitchens, they have what we call a kitchenette. Kitchenette basically is a microwave and a below counter one of those what 1 ½ cubic foot
refrigerators so they can keep milk, a lot of times the residents can’t eat all their meal, they will take a dish and they will take it down to their room, put it in the refrigerator and the middle of the afternoon they will warm it up and have a snack.
The Bickford Cottage is an affordable option for the frail elderly and in your community we do hire locally of course, we will employee approximately 30 full time equivalent staff members. Many of those will be of course there will be a Marketing Director and an RN, but then we have approximately 24 certified nurses’ assistants. We provide benefits, pay a good portion of their medical insurance, dental, life insurance, 401K we do provide fringe benefits to our employees.
Typical neighborhood concerns, architectural compatibility, we feel we are residential. We design these to look residential and it is in our best interest for it to be residential, because when a loved one brings their parent to our residence, when they drive up we want them to have a home warmth atmosphere, homey environment and not a feeling of being institutionalized, so architectural compatibility, we tried to do, residential roof, building materials, what we discussed. Noise, noise is not a problem at our facilities, especially at night; it gets real quiet around our place around 8:00 p.m. so very little outside noise. Noise comes from deliveries and family members coming to visit their loved one.
Traffic impact, we are very very low traffic impact. We have at peak hour traffic about 12 vehicles, 6 entering and 6 exiting. That is equivalent to about 9 residential homes, very minimal traffic impact. Lighting, all of our lighting they have the hoods on the top of them and the lighting is deflected down and make sure that light doesn’t spill over onto the surrounding neighborhood.
Crime and security, our residents you don’t have a problem there, as far as our employees, they go through criminal background check, we do periodic drug screening and the abuse screening.
Storm water drainage I know that is a concern for neighbors and should be, we do provide storm water finching and will be engineered by civil engineers to met the local standards.
Property values we have evidence we simply don’t have an impact on property values, property values continue to increase at post-construction same rate as pre-construction.
Fire protection, of course, we all should have concerns about this, we are a fully sprinkled building, we have also have a dry system which is not typically required, charged with air until the sprinkler goes off. We have two levels of fire protection. By the way our building is a secured building, there is a key pad entry and exit as well as many of our residences will have a system called Home Free, it is a bracelet that they were and if they happen to walk out the door unsupervised it will set off and alarm. We do that because although you have a key paid entry you may have a family member coming to see a loved one and they walk in and somebody looks perfectly normal walks out by you only it happens to be a residence, so we do use the Home Free system.
Financial stability of the owner, we have 36 residences that we currently own and operate, we have had 16 years in the assisted living business, and we have never had a failed building. We were listed by American Senior Housing Association as the 32nd largest provider in the United States, I think two years ago. We are pretty proud of that, this is both public and private, done well.
In summary Bickford Cottage will provide affordable housing and care for the frail and elderly in your community, we do provide a service. We are very low impact, we provide employment opportunities to the community and we generate income through property taxes and purchase price. We do bring in local trade for; it will be bid out for local trades here within the community typically. We are a for-profit organization, so we do pay property taxes and that is it. Thank you. If you have any questions, I will be glad to answer them.
Mr. Darrow: First one that comes to mind is we see the interior courtyard which obviously is an outdoor recreation center, on a 46 unit facility approximately how square foot would this be.
Mr. Eby: I really don’t know, 10,000 square feet, just off the top of my head, this is a 25,000 square foot building and I think the interior courtyard is roughly 100 x 100 in that area.
Mr. Westlake: Any other questions from the board? You can sit down. Is there anyone here wishing to speak for or against this application? Come to the podium, and tell us your name.
Ms. Dunster: Good evening, Kim Dunster, I reside at 5 Primrose Estate and this facility will be in my backyard. I have a list about some concerns and questions, a few have been answered but not in great deal. Before I forgot something that he said, I want to add to, I have been here for 17 years, when we first built I understand where Nino’s is now, had been commercial but there use to be a residence there and it was torn down in the last few years, there was a residence there.
My first question what about an environmental study, you know the creek is there, where is their run off going to go, is it going into the creek, what are they going to do to that? Green space, I know it is a new thing that has come up needs to be looked into. Since they can’t build on the other side of the creek is there going to be enough green space for the building? My biggest concern is traffic, it is close to the intersection, there is a light there. There are 2 schools in the area, Tyburn Academy just moved across the street. South Street has a lot of trucks going down it, if the residents do get out, the Pop Warner field on the weekend their traffic certainly add to the population
Mr. Westlake: We can’t address that; we can only address this property itself, as far as the other traffic, that can’t be addressed tonight.
Ms. Dunster: The employees for this facility, the nursing people that you need, service vehicles, ambulances, fire trucks, will certainly be a part of that were not addressed. My other thing was is there enough land for such a large facility; I don’t know that, that is something I would like to consider. Just the neighborhood, our quality of life, I know they will adjust the lighting, is there going to be a barrier between them and us and I know to the north there is a house right there, I don’t know what type of barrier will be between them.
I have children, we are always in our backyard, how are we going to affect them, how are they going to affect us? Have they looked into purchasing the old Kalet it is already zoned for this, I know the building is not in great shape, if they torn it down or remodeled, I do know the owners are eager to sell. Thank you.
Mr. Westlake: Is there anyone else wishing to speak for or against?
Mr. Kapcha: My name is Dave Kapcha and I live at 17 Taber Driver, which is just in that corner. First of all Mr. Eby, I applaud you, that is a beautiful building, that is a great concept, I just don’t want it in my backyard. I built my house in 1977, that property was empty and vacant, it was an old dairy and if I am correct and I am pretty sure I am, it went out of zoning so it was not zoned as a commercial property. In 1977 there was a group of people wanted a small store and they came and got a zoning variance and the store was put in there. It has since changed hands a couple of times and turned into Nino’s Pizza Shop. Shortly after the store was put in Kalet’s Nursing Home was given a variance to
increase the size by at least 2 times, doubling their size, maybe a little bit more than double their size. I am getting impacted, my neighborhood is getting impacted, this is a R1 residential zone. There is now a funeral home, White Chapel Funeral Home, a commercial business, the Harriet Tubman home is up the street and they now want to have a commercial business a new welcome center, right across from the Harriet Tubman House, right next door to my house on Tabor Driver, the zoning board gave approval for a two family house, this was probably 4 to 5 years ago. Up around the corner from me on Burgess there is another 2 family house in a R1 residential zone. Each time I complained about these things to the Zoning Board I was told there is nothing that we can do, we are not going to take back what is already there. The impact to me is decreasing the value of my property. I honestly believe if you are going to live in a R1 residential area, a
building like his is a commercial business. Is it going to impact my area, look at all R1 residential areas, if you took his building and put in a R1 area on South Marvine, knocked down 10 houses on Hoopes Park and will it be an impact in this area
Mr. Westlake: Let’s hold here as far as knocking down houses, were are not knocking down houses,
Mr. Kapcha: If they came here and said we purchased 10 houses on Hoopes Avenue, we are going to knock them down and put this structure here there would be an impact on a R1 residential area. You would have to agree correct? You would have to agree that it would have an impact in that area. My neighborhood is a R1 residential district, every time I have a commercial business put into that district I go to the Assessment Board and complain, I come here and complain, my property value goes down and they raise my assessment.
Mr. Westlake: Has your property value gone down sir?
Mr. Kapcha: I honestly believe the value of my house is down but my assessment goes up.
Mr. Westlake: Have any homes been sold in your area recently?
Mr. Kapcha: One.
Mr. Westlake: Sold lower?
Mr. Kapcha: Sold below assessment.
Mr. Darrow: Would you sell you house for its current assessed value?
Mr. Kapcha: I am not selling my house right now. I built my house. If you put this into other R1
Mr. Westlake: What would you like on that land on South Street now?
Mr. Kapcha: There was a house there before, put a house there now. There are a lot of places you could put this, you could put it in back of Wal-mart.
Mr. Westlake: We can’t tell people what they can sell their property for.
Mr. Kapcha: But you can’t say that is a R1 residential district, it is a R1, keep it that way, that is all I am saying.
Mr. Westlake: OK sir, thank you very much. Anyone else wishing to speak for or against?
Mr. Morabito: Good evening, Joe Morabito, I live at 3 Taber Drive. I am going to side with David Kapcha also, it is a R1 district. Can I ask how much this building is going to cost?
Mr. Eby: 3 ½ million.
Mr. Morabito: There is a building, 100 yards down the road across the street, if you are putting 3 ½ million into a new building couldn’t that building be renovated and used the same way?
Mr. Eby: We did look into that, number 1 it is not big enough for our construction and number 2, it is not a building we are at all interested in, we want more flow.
Mr. Morabito: Could your raise that building and build a new building on that same site.
Mr. Eby: We looked at that, had the architect do a lay out, a lot of that lot is in the flood plane, a stream cuts through it, it simply would not work, we looked at it, it would have been a less expensive option but it would not work and as I remember it was also in a R1 and it required the variance for special use.
Mr. Morabito: They say the building is going to look like the rest of the neighborhood, there isn’t a house in the neighborhood that looks, that is as big and tall as that particular building. They say it is a one story building, I have to disagree it is at least a story and a half. One story to me is a ranch style building, maybe 20 feet high tops, this one looks quite a bit bigger than that. The second part of this their building they talk about the stream that runs through it and not building on the other side of it, is there anything that would keep them from building on the other side of that stream, to use it as a courtyard or future plans down the road. Anything prevent them from doing that? What is the impact on the stream? I don’t know about the rest of my neighbors but I have wildlife that comes through my yard all the time. My backyard runs right up to the back of this building and into the stream. I own a pretty good chunk of land back there.
Mr. Darrow: A lot of these things are Planning issues that goes before the Planning Board that will be discussed with them
Mr. Fusco: One of the issues that you do have jurisdiction to consider character of the neighborhood, much of what the last two speakers have been talking about when they were cut off go to the issue of the character of the neighborhood.
Mr. Morabito: We have recently at 16 Taber Drive, we have had a residential facility put there and that fits in with the neighborhood, it is a one story that fits in with the neighborhood without any problem at all. If you drove down the street you would never know that it was a residential care facility. This place I believe you will know without a doubt, driving down South Street, that this is not a residential type building which they are trying to make it look like and that is not the case at all. I am all for what they are doing, I understand that, but this is a residential area. Thank you.
Mr. Westlake: Thank you very much. Anyone else?
Ms. Cannizzo: My name is Claudia Cannizzo and I live on the north side of the proposed site and I have no problem with it being there. I am probably the closest neighbor.
Mr. Darrow: What is your address?
Ms. Cannizzo: 169 South Street.
Mr. Darrow: Thank you.
Mr. Westlake: Thank you very much. Anyone else?
Mr. Odrzywolski: My name is mark Odrzywolski, 185 South Street, I am directly south of the property. Personally I see no impact to my house because they are going to need a buffer zone the natural woods which will keep the light and also they are allowing input on the architectural design and I think it would be an improvement over whose know what, it will reduce traffic, reduce noise, reduce pollution and actually make for a better looking building and will be paying taxes on 3 ½ million which will help Auburn community and also the job creation would be beneficial. To me it is not really an impact because there is a buffer zone and natural and it will be maintained. They stressed that they will have landscaping
which will be an improvement also compared to an overgrown field. I have no problem with it.
Mr. Westlake: Thank you very much. Anyone else? We will close this portion and discuss it amongst ourselves.
Mr. Bartolotta: Just for the record I would like to say for obvious reasons I will abstain from any participation in the conversation and obviously voting.
Mr. Darrow: That will make it only 4, would we want to give the applicant a chance to table with only 4 votes being a 7 member board and 1 seat empty.
Mr. Fusco: Based on what I am about to say, first of all I am not certain that the factual patterns as presented to the board by the developer are entirely correct. The history of this property is a matter of a reported case in the 4th Department by the name of Bonacore vs the City of Auburn and it is the Bonacore case which allowed the South Street Mini Mart to be on at least what sounds like part of the property that is now before us. It sounds to me in listening to the evidence that we have heard thus far that the property that was originally part of the Bonacore vs City of Auburn case since 1988 might have only involved the front portion, the South Street portion if you will of these premises and that there may will have been a
home on the back side west side of this that subsequently was torn down, subsequent to the Bonacore litigation. The rights and liabilities for one-half of this property maybe the same or maybe different for the second part of this property or the rear part of this property and it would behoove the developer to contemplate that issue and to review the Bonacore decision and to review this board’s decision which was upheld on appeal in the Bonacore case in 1988 in considering what issues benefit or harm the developer as they were framed before the 4th Department and what issues help or hurt the homeowners who have spoken out some for some against as framed by the Bonacore issue. So I think that is the first thing. There needs to be some homework done here.
The second thing that I make an observation on is that there appears to me to be potentially two questions of law that this board will have to decide in either granting or denying this application. First of all whether this is or is not a self-created hardship and secondly based upon the proof that we have in our packet whether the applicant has shown the property fails to render a reasonable return for any use allowable under the zoning law. As most of you know, in fact all of you know, because I am pretty sharp when it comes to these things, the element of proof for a use variance is very different that the element of proof for an area variance and the element of proof for use variance are spelled out by Statute, one of
them is the character of the neighborhood which I said previously and I think those are two issues that he may want to consider one way or the other, there may be others that strike you.
What I would recommend that we do at this particular juncture is declare ourselves lead agency for the purposes of a SEQRA review, this is within 500 feet of a state highway and therefore it is required by law to be referred by this agency to the County Planning Board, whether that has or has not been done, but assuming that it has not been done, we are not legally able to act on it tonight, we need to give the opportunity to the County to be able to put there 2 cents in if they care to speak one way or the other on this. The first thing I think we would do declare ourselves lead agency, the second thing I think we would want to do is then refer it to the County Planning Board for their input under the General Municipal Law.
Once we have declared ourselves lead agency, we might wish to proceed with answering the questions on part II of the EAF, we don’t have to do that tonight. As I say as a matter of law, this matter has to be referred to the County if it hasn’t already been and we can complete the EAF next month or the County has 45 days to respond so if they take all 45 days we may be here in 2 months. Does anyone have any questions as to what I just said?
Mr. Darrow: I have one concerning the property there has been people spoke that it was a grocery store and it operated under a variance for commercial use. If so, if that variance was granted and I don’t really remember back then or how far back that may have been if they were granted a use variance for commercial operation and that was never empty for more than 6 months, wouldn’t that still be intact.
Mr. Fusco: The history of the property is that it was used as so Bisgrove Dairy which we heard was a long long time ago and then for a long time the Bisgrove Dairy was closed for a number of years and during the time the Bisgrove Dairy was closed it was used for some type of storage or some type of warehousing.
Mr. Darrow: I must have misunderstood I thought they said it received a use variance for convenience store.
Mr. Fusco: I will continue.
Mr. Darrow: Oh, alright.
Mr. Fusco: Then in 1980 or 1979 a trio of developers one of whom was Dick Gagliardi came before this board asking for permission to get a use variance to have it be the South Street Mini Mart and that was granted. One of the next door neighbors appealed the matter to Supreme Court for Cayuga County and under an Article 78 action this board was successful in defending that and then it went to the Appellate Division so there is a reported decision on that and that is how the South Street Mini Mart came to legally exist. So one of the questions that you all will have to answer once the various time constraints that I talked about earlier are satisfied, is what rights if any does the Court allowance of a Mini Mart on this property have vise
vie assisted living residential set up that the developers have suggested, that will be your call. You can certainly argue that because someone allows you to have a Mini Mart or pizzeria there, doesn’t automatically give you the right to allow you to have an assisted living residence area or use for the elderly.
Mr. Darrow: What is the use variance was for a specific use and not as a use variance as allowable in the City.
Mr. Fusco: Correct. The 1980 use variance was specifically to mini marts and pizzerias and the like.
Mr. Westlake: Is it the whole property?
Mr. Fusco: That is something I can’t answer, I don’t know. I have fairly good recollection of the Bonacore case, what I don’t have at my finger tips is the fact that it sounds like the property that now is part of this application also involves something in back, where there use to be a house. We heard one neighbor specially say when I built my house there x number of years ago, there was a house in the back of this that had gotten torn down. I can tell you as a matter of fact that the Bonacore case only involved the grocery store, mini mart, pizzeria section of the property but I am guessing that this house use to be in back where there are streets, so the old Bonacore house which was subsequently torn
Mr. Morabito: After Nino’s was there, I would say within a year or two that house was actually torn down.
Mr. Fusco: Bonacore had a big barn in back I remember that.
Mr. Morabito: And there were people living in that house when Nino’s was in existence, it was probably 2 to 3 years after Nino’s came that the house was vacated and subsequently torn down.
Mr. Fusco: OK, when I said west it should be south so when you look at the case from 1980 whatever ruling applies doesn’t apply to tonight’s application will only apply to the northerly half of it where the pizzeria is, the old residential property, Bonacore house, barn horse thing in the back there was previously located was not affected by the previous so called Bonacore decision.
Mr. Westlake: One more question, if they wanted to put a larger pizzeria in there they could just go ahead and do that?
Mr. Fusco: Well that would be an expansion of a non-conformity and we do have provisions in our local law as to how large of an increase you can have during the lifetime of property, so the answer is yes and no, a little bit of enlargement is ok, but a big enlargement might not be ok.
Mr. Westlake: I will ask the applicant if he would like to table the matter for now until he finds out more information or if he wants to go ahead. Sounds like you have to table it anyway.
Mr. Fusco: We do have an obligation under General Municipal Law to make referral to the County because we are on a state highway.
Mr. Tehan: Mr. Chairman, may I ask one question, at one point in time there was a Memorandum of Understanding between the City of Auburn and County Planning that because of the full time staff with the City of Auburn and Planning Department that the review by the Planning Department and the Planning Board would suffice for that and I don’t know if in fact that Memorandum
Mr. Fusco: Now how in the world would you know something like that?
Mr. Tehan: Inside information (everyone laughs).
Mr. Selvek: Mr. Chairman with respect to that comment that is still the case, I have spoken more recently with the County Planning Office on a previous use variance regarding that clarification and as long as a municipality a within the county employed a full time planner as part of their staff they would waive that involvement under SEQRA.
Mr. Fusco: Not SEQRA, under General Municipal Law. There are municipalities that opt out even if they had a full time staff. I think it would behoove us to dot the “I’s” and cross the “T’s” and give the County Planning Board the opportunity to be heard, if they wish to be heard, they may respond within the 45 day period or within 30 days for that matter by saying look what goes on in the City of Auburn is fine with us, we opted out of it a long time ago.
Mr. Darrow: I find it more of a necessity due to the fact that we only have 4 voting members and hold that to both sides.
Mr. Tehan: In light of this discussion we ask that this be tabled for the time being for staff to decide whether you are going to refer to County Planning and we will do a little bit more background on that Bonacore case.
Mr. Fusco: We will do the referral tonight, as you well know the County has 45 days to act. They don’t have to take that long, as a matter of fact if what Steve had told me is still the case they are willing to opt out on matters of this nature they can do it in 45 seconds. If you can get with them and have them give us a decision of no decision if you will within the next couple of weeks we will be able to address the matter next month, the problem as you well know with the 45 day rule it delays your client two months if the Planning Board decides to take the full 45 days, but they can take less, simply by saying it is a local issue, if don’t care whatever your Planning Board decides is fine with us.
Mr. Darrow: I would like to make a motion that we declare lead agency on this property so that we can get the ball rolling, get the time clock ticking and make proper notification.
Ms. Brower: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Darrow
Ms. Brower
Mr. Westlake
Mr. Bartolotta – abstained
Mr. Darrow: I would like to make one more motion that we table the environmental short form study until our next regularly scheduled meeting.
Ms. Marteney: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Darrow
Ms. Brower
Mr. Westlake
Mr. Bartolotta – abstained
Mr. Fusco: On Question #7 on the EAF, Mr. Tehan, how many areas are we talking about?
Mr. Tehan: Approximately 3 acres.
Mr. Westlake: Takes care of this issue.
Meeting adjourned at 8:30 p.m.
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