ZONING BOARD OF APPEALS
MONDAY, AUGUST 29, 2011
Members Present: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino and Mr. Westlake
Staff Present: Ms. Jensen, Mr. Paulsey and Mr. Fusco
APPLICATION APPROVED: 298 Grant Avenue, 33 Liberty Street, 124 Grant Avenue, 413 S. Seward Avenue
APPLICATION TABLED: 2 Sherman Street, 141 Garrow Street
Mr. Westlake: Good evening, ladies and gentlemen, this is the Zoning Board of Appeals. Tonight we have the following item: 298 Grant Avenue, 33 Liberty Street, 124 Grant Avenue, 2 Sherman Street, 141 Garrow Street, 413 S. Seward Avenue
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298 Grant Avenue. C3 zoning district. Applicant: James Leach/Frontier Development LLC. Area variance for reduced rear setback buffer.
Mr. Westlake: 298 Grant Avenue please come to the podium; tell us your name and what you would like to do.
Ms. Marsh: Good evening my name is Wendy Marsh, I am with Hancock Estabrook, LLP and I represent Frontier Development LLP with regard to the area variance requests before this board. Greg will be speaking about the details associated with the project and thank you for the opportunity for us to speak a bit with the adjacent neighbor relative to some concerns that were raised.
After Greg provides the details on the project I will come back to the podium and go through the what we will be looking at in regard to the area variances in terms of the benefits to the applicant versus any detriment to the character of the neighborhood. With that I will let Greg give you the details of the project.
Mr. Sgromo: Greg Sgromo with Dunn & Sgromo Engineers. I can just quickly give a perspective of the surrounding site. The site is an irregular shaped sort of a trapezoid at the intersection of the Wal-Mart intersection on Grant Avenue and surrounded by medical office buildings here and here (points to sketch on easel) apartments in this location, office here, apartments here and the Credit Union that is going on in this spot here. The site has an easement that running is through the center of the site highlighted and you can see all the lines there that serves the property to the rear. Also on here in a pinkish color are the rear side and front yard setbacks. What you see in blue is the encroachment of the existing building which is approximately about 1700 square feet encroachment with the front and rear yard setbacks. What you see in
green is the portion of the proposed building which encroaches on the rear yard setback and that is approximately 1125 square feet. In total the front, side and rear setbacks is a total of 5500 +/- square of area. Keep in mind that includes the triangle to the right and left and also the trapezoid to the right total area. The site is about 99% asphalt for building, there is no landscaping and currently the only buffer that exists between our site and the apartments to the rear is a chain link fence that is totally see through and offers no visual barrier whatsoever.
The proposed site includes approximately 71% either of previous surface area where the building or asphalt where I stated 99% and although we are asking for two variances as you can see these rear buffer areas in green on this site and gray is the asphalt. The site is very heavily treed relatively large in some areas exceeds the 50 yard requirement.
Again the building only encroaches approximately 1100 square feet so it is much larger than the existing building. That is all on the site unless you have some questions.
Mr. Tamburrino: It is all asphalt now and the green space represents grass and trees it is what about 50% of the area? What is the percentage?
Mr. Sgromo: 30% and we are meeting all the Code requirements where we can as far as the landscape density and the rear we have 85 out of the 100 that is required, we are going to put in more trees we want them to survive and mature and offer long term aesthetics.
Mr. Tamburrino: Please show me the easement again.
Mr. Westlake: Easement for the parking in back?
Mr. Tamburrino: Yes.
Mr. Sgromo: Easement is located right here (points to sketch) serves the building in the rear.
Mr. Tamburrino: So what you are saying it is my understanding green area a green triangle that is the variance if you will.
Mr. Sgromo: That is one of the variances we are asking for.
Mr. Tamburrino: The old existing McDonald’s building the blue is all variance?
Mr. Sgromo: All existing on the building area.
Mr. Tamburrino: Thank you.
Mr. Sgromo: Any other questions?
Mr. Westlake: You are asking for 3 variances, 20 foot of the required 30 foot for the building setback, 40 foot of the required 50 foot for the buffer and 140 plantings units of the required 220 planting units. You are actually asking for 3 variances.
Mr. Sgromo: I am not sure I thought that 2 constituted as part of 1 variance, I am just the engineer.
Mr. Westlake: That is what is on the application in front of us.
Mr. Sgromo: Ok, thank you.
Mr. Westlake: Any questions from the board?
Ms. Marteney: Has this gone before Planning yet?
Mr. Fusco: Not the site plan approval just for preliminary unveiling if you will.
Mr. Westlake: Do we know what the retail is going to be?
Mr. Sgromo: A Verizon cellular telephone store. If you want I can speak about the traffic issues, we have talked to the DOT
Mr. Westlake: What I am trying to say if it was a restaurant or something might have a different opinion of it.
Mr. Darrow: I agree with you completely.
Mr. Baroody: What about the easement?
Mr. Sgromo: We had to chop the front corner other than making it an extremely irregular building.
Mr. Westlake: If they had to they could dig it up to make a repair.
Mr. Sgromo: Oh absolutely we are not encroaching on it, it is at least a 20 foot easement not a very deep sewer plenty of depth and access and any improvements we put over it is our responsibility.
Mr. Westlake: Any more questions from the board? I think Ms. Marsh wanted to come back.
Ms. Marsh: What I would like to do is just go through the five-part test for the area variances and highlight some of the information that I sent in with the letter.
I am looking area variances, what this board is doing is taking a look at it in terms of the character of the neighborhood or a detriment to the nearby properties and it is our position there is no undesirable change in the character of the neighborhood or a detriment to nearby properties. The properties are commercial in nature and the store is in keeping with the character along Grant Avenue. We have worked with the adjacent property owner Mr. Walotsky on the back property line which he is most affected property and understand that he supports the project, he was to speak with me directly on that I put a call in to him and he has not as yet called back. He certainly is not here to object to the project.
Mr. Westlake: Do you have a letter or something from him saying it is ok?
Mr. Fusco: One of them is here.
Ms. Marsh: It is another neighbor, I will get it but we have been in contact with Mr. Walotsky and if you want to speak to Steve, our client is here today and I have no direct communication but we do understand that he does support the project.
This is an odd shaped property and in order to do any type of development on the property area variances are going to be needed which is the second category to look at whether or not the application achieves the benefit by some method feasible for the applicant to pursue other than the area variance and as Greg said he looked at the property and came up with very different ways in which to develop the property this is the minimal amount of variance that is could have for a viable retail project.
The third criteria is – is the area variance request substantial? Again in light of the irregular shape of the property and setback requirements we don’t believe it is substantial. Again the other development of the project would require a lot more variances and to have it limited to that rear yard variance it is our position that it is not substantial.
Fourth condition will the variance have an adverse effect on the physical or environmental conditions of the property? In light of the development and the minimizing the amount of services it will actually have a positive impact on the environment it will make it look better and it actually will have better drainage.
The fifth criteria was the alleged difficulty self-created? It is not self-created; these are not the current owners of the property. With regard to the other adjacent neighbor we were spending some time trying to talk through an issue with the adjacent neighbor we had offered access from the adjacent parcel to the new traffic light once the curb cut is going to be across the street from Wal-Mart certainly increases the value of the adjacent property and what we are trying to do is come up with reasonable terms of access agreement so I am sure Mr. Bachman’s attorney will speak to the board about that issue.
Mr. Westlake: Thank you. Any questions from the board?
Ms. Marteney: When you say adjacent
Mr. Westlake: Is it the apartments?
Ms. Marsh: The apartments that are owned by Mr. Walotsky he is all set with the project, this Mr. Bachman’s property.
Mr. Tamburrino: He is the accountant?
Ms. Marsh: Yes, exactly.
Mr. Westlake: All we are looking at are the variances that is something between you guys I am not sure we can get involved with it or speak to that.
Ms. Marsh: That would be our position I do expect that Mr. Andy Leja will explain his position an impact to an adjacent neighbor is part of something that you would look at. I will let him speak to that but from our prospective we believe we have met the test we believe based upon the access agreement we are voluntarily offered it supports the issuance of these area variances.
Mr. Westlake: Thank you. Is there anyone wishing to speak for or against this application? Please come to podium state your name clearly and let us know if you are opposed or in for it.
Mr. Leja: Good evening Mr. Chairman, ladies and gentlemen, my name is Andrew Leja I am attorney with Hiscock & Barkley and I am here on behalf of Mr. Mark Bachman. Mr. Bachman owns two parcels that are located to the south of the property in question, right here (points to sketch) and those properties consist of his office as well as an eight-unit apartment building directly south of his office. While I am admittedly coming very recently to this project I understand that there have been preliminary discussions about this rear access granted to my client’s parcel across this property and it was mentioned during the presentation but I wanted to give you a quick indication where that access would be if I may. Correct me if I am wrong Mr. Bachman’s office is right here, the apartment complex right here and it has been
proposed to us granting of an access driveway extending from these lots to the southern end of the property into this parking area which would then allow travel from the parking area in and out through the signaled intersection.
Mr. Westlake: Again I don’t think that has anything to do with us.
Mr. Baroody: We have a very narrow legislation
Mr. Leja: But as part of that narrow legislation that you have to look at you have the five conditions to look at and one of those being whether there will be an undesirable change to the neighbor character or to nearby properties. It doesn’t say properties directly affected by the variance it says nearby properties.
Mr. Baroody: What is the change to the property be, this is John Doe’s property this is Mr. Bachman’s what would change do to Mr. Bachman’s property?
Mr. Leja: If there is not a rear access driveway negotiated as part of this then my client who has 3 curb cuts on Grant Avenue will face difficulty from traffic backing up because of the signaled intersection. Now remember traffic turning left into Wal-Mart has its own turning lane a wide one. This creates a problem in terms of safety; it creates a problem, as he doesn’t know if the light is going to be appropriate, he wants to know that if there is some type of additional work done here that it is going to be done appropriately as an adjacent property owner.
Mr. Westlake: The light is there now, his property is there now, what would change?
Mr. Leja: There is something that is going to change because the right entrance into that property at a signalized intersection, which could have back up of traffic.
Mr. Baroody: Wal-Mart is here and there are lights there now.
Mr. Leja: Wal-Mart has a left turning lane dedicated to it which cars proceed in there so traffic is not
Mr. Baroody: Forgive me maybe I don’t get what you are saying. What does this property have to do what does Mr. Bachman there is no clarity in what you are looking for? Mr. Bachman’s property is here, the traffic light is there, Grant Avenue has been there since the 70’s, and the curb cuts have been there since the 70’s what does one driveway at a traffic light have to do with impacting Mr. Bachman’s property?
Mr. Leja: Because of the nature of what they are proposing a Verizon cellular telephone store that has higher traffic, it gets much more in and out quick trips, people running in and out, it creates more traffic queuing up to that light when the light is off and that queuing traffic lines up directly along Grant Avenue right in front of my client’s property, right in front of his only access in and out through these curb cuts
Mr. Westlake: But it is there now, go there at Christmas time and see if you can get into Wal-Mart whether you are going left, right or straight the traffic is still there. This doesn’t impact it any more.
Mr. Leja: First of all in terms of Wal-Mart yes there is a dedicated left turn to Wal-Mart and you have John Walsh Boulevard as another entrance into Wal-Mart.
Mr. Westlake: Ok, so if the traffic light is red all the cars stop, whether the building is built there or not all the cars stop, they are going to be in front of his property. When the light changes to green all the cars go.
Mr. Tamburrino: He is saying it is an increase in traffic due to the Verizon store.
Mr. Darrow: Might be longer traffic signals because you now have another
Mr. Tamburrino: It is because of the store
Mr. Leja: If this board grants the variances a lot of this process will play out and allow this to go to the Planning Board and let’s say this store is built if my client wants to develop his property the traffic conditions now are more congested than what they are currently because you have excess traffic all ways at this light going in and out.
Mr. Westlake: I still don’t understand how that impacts us tonight.
Mr. Fusco: Fourth requirement under the statute.
Mr. Leja: The statute requires you to look at the impact to the neighboring property.
Mr. Darrow: Plus the way I see it, it is also a benefit because of the fact if he wishes to come out of either of his properties, the apartment building or his accounting office and wants to make a left hand turn and he doesn’t have a light to make a left hand turn in you can sit there for a half hour before it clears.
Mr. Baroody: Then you put up a sign that say “No Left Turn” like at Applebees.
Mr. Darrow: You are missing the point he is allowed to make left hand turns out of his 2 properties now if the store goes in there why should he no longer be
Mr. Westlake: You can’t make a left hand turn out of Advance Auto, you can’t make a left hand turn out of Kentucky Fried Chicken.
Mr. Fusco: That is one of the conditions set by Planning Board as part of site plan approvals for Advance Auto and Kentucky Fried Chicken but they weren’t set for Mr. Bachman’s apartment or Mr. Bachman’s office.
Mr. Westlake: Where is it here on this piece of paper?
Mr. Fusco: I understand what Andy is saying and I can see that you are not alone in having difficulty with the concept. Here is the risk that I see us running tonight. If we close the proof right now, if the variance is granted and the access agreement between Mr. Bachman and Frontier falls through or isn’t executed then we face the potential for a lawsuit and while certainly I understand what you are saying Mr. Chairman I also understand what Mr. Leja is saying.
Mr. Westlake: But that would be between the two owners of the property it has nothing to do with us at all.
Mr. Fusco: Right now all of the northbound traffic on Rt. 5 in that area all of it with the exception of those cars in the dedicated turning lane for Wal-Mart will continue to go further north to some other location. When this store is in place at least some of the traffic will turn right at that light as opposed to going north. It does raise the potential and I don’t know if it is a great potential or little potential or even less of a potential that was there when it was McDonald’s but I see it creates a potential for adverse impact on neighboring property.
Mr. Westlake: What I am trying to say what we are talking about has nothing with the Zoning Board of Appeals. That is between those two people if they want to give them access across there, give it to him.
Ms. Marteney: Say you have 25 parking spaces and at some point you could have 25 well you have people that work there say 25 customers who would be in the right hand lane, stopping at the stop light before they turn into that store. That turn would clog up that right hand side so that people coming out of that might have more trouble.
Mr. Tamburrino: If you are coming out of Bachman’s you have to wait longer.
Mr. Westlake: All I am saying is this, let them grant, I am not against them granting the right of way across there that doesn’t bother me at all, that is fine that is between those two, all we are doing is granting them 3 variances.
Mr. Darrow: Mr. Chairman we shouldn’t discuss this while counsel is out of the room because their representative doesn’t hear what we are discussing and we would be violating the Open Meeting Law.
Mr. Westlake: We realize that traffic is a problem here but what you have in front of us is 3 variances ok. Am I looking at it wrong, there are 3 variances that we are looking at tonight? I am sorry sir, we have 3 variances here that are talking about tonight, and traffic would have to be the Planning Board.
Mr. Fusco: That is not necessarily correct and it may be correct if there is a direct nexus between the granting of the variance and the hardship it creates for a neighboring property I do believe that addresses one of the elements of the statute. Now you say I listened to Mr. Leja’s argument and I don’t see it. I understand what you are saying I don’t see based upon what Ms. Marsh said in her presentation about traffic, she talked about it or if she talks about it subsequently, you may respectfully disagree with Mr. Leja who still by the way has the floor. You don’t necessarily have to accept what Mr. Leja says but I think you could probably see at least a couple of members the potential for some nexus between
Mr. Westlake: But this is between Mr. Leja’s client and these people, that access is between them it has nothing to do with the variances.
Ms. Marteney: Talking about the access for people coming in and out of the driveway
Mr. Baroody: Let’s hear him out.
Mr. Leja: I don’t want to belabor the point because I think I made it with respect to the potential impact. By granting the variances this board is charged with looking all impacts associated with the project as to it pertains it going forward. If you don’t grant a variance the project doesn’t move on. If you grant the variance on the other hand the project moves to site plan they can do whatever they want to try to reconfigure the project but they still have that light and that is the only exit they are going to get off of Grant Avenue through that light and through that driveway and that ultimately impacts my client’s property if those cars are queued out there where they would not otherwise be waiting for people to turn in. Again it is squeezing up the area in a small site into your configuration you may
make several variances here.
Again we were proposed a rear access but now apparently I am not sure if that is going to happen. I would ask this board to maybe entertain that to let that happen if it does then it seems to me that most of your problems are solved. If it doesn’t happen then you will be asked to make a choice whether you believe this is enough of a injury to my client’s property to deny the request they are asking. So what I would ask for is the board to consider that if the applicant tends to request the board make a decision tonight if it does I would respectfully submit that the issues that I raised be adequately addressed specifically the hardship to nearby properties which is one of the five criteria you need to look at. I would also note that when the applicant says this issue is not self-created well that absolutely was because the
applicant bought the property with conditions exactly the way they are. They are proposing variances in order to relief the property to let them develop it. They didn’t come into this and self-creation has a different definition than simply they bought the property, as it already existed. They are creating the need for the variance by proposing this development. Without the proposed development there is no need for a variance so that is the definition of self-created meaning they created the need for the variance by applying for it. I would like to make that note for the record. But if my objection is just that the impact to my client’s property have not be adequately addressed to date it can be said that there is some rear entrance or rear driveway proposed I ask the board to give us time to look at it and try to work it out. If that is not amenable to the developer well then this board has a decision to make but if would or could be made amenable to the developer then
we would become a willing supporter of the project, which would entirely remove that hurdle as we stand today.
Mr. Kilmer: That rear access you refer is that the parking lot that connecting driveway between their driveway and Mr. Bachman’s property is that what you are referring to?
Mr. Leja: That is correct. The stuff that I mentioned earlier that was proposed runs back into these rear driveway it would connect at this point with the development that would lead to the traffic light.
Mr. Westlake: I guess my confusion is that he has nothing with that access from one to the other that is between you and the developer. I am not against it but it has nothing to do with the Zoning Board of Appeals. Ok if we grant the variances requested they don’t have to give you access you should have worked this out before you came before us.
Mr. Leja: I am sorry Mr. Chairman the burden is on the applicant to prove all the tests.
Mr. Westlake: Until tonight we heard nothing about any access between the two properties.
Mr. Leja: Understood.
Ms. Marteney: That is what they need a variance for.
Mr. Westlake: The variance needed is to put the building there.
Ms. Marteney: He is saying that this building is going to impact Mr. Bachman’s property
Mr. Westlake: I know I am not against it they should have worked
Ms. Marteney: No, no, no with or without that they are saying Mr. Bachman’s property will be impacted by traffic coming and going from that building.
Mr. Westlake: I agree with you.
Mr. Tamburrino: If we grant the variances we are ignoring one of those five points.
Mr. Baroody: Is it going to or is it not to impact.
Mr. Darrow: That is what is before us whether we personally believe that property will impact the other two properties at the traffic
Mr. Fusco: That is not it at all the issue is whether there is proof before you regarding traffic that allows you to make up your minds.
Ms. Marteney: It can change the physical or environmental condition in the neighborhood.
Mr. Westlake: I am agreeing with it we need proof.
Mr. Tamburrino: We need a traffic engineer to give us evidence
Ms. Marteney: They need to prove that.
Mr. Westlake: As far as I am concerned all for us to give variances is for the developer to say they are going to give them that access if they get that access then Mr. Bachman will be in favor of this, is that true?
Mr. Leja: As long as the access is reasonable yes.
Ms. Marteney: So what is next?
Mr. Leja: To be able to discuss it with them.
Mr. Westlake: That is between you and them.
Mr. Baroody: Let’s look at what is in front of us and I understand your point and counsel is right we have to have proof and we have to decide whether it will impact or not.
Mr. Leja: I made my points to the board. Thank you.
Mr. Westlake: Thank you very much. Is there anyone else wishing to speak for or against this application?
Ms. Marsh: Can I have my second turn?
Mr. Westlake: What is your reason?
Ms. Marsh: Clarify some statements that were made.
Mr. Westlake: Ok.
Ms. Marsh: First our clients do not own the property it is not purchased property it is conditioned upon all the approvals. Mr. Leja said they were the owners.
Mr. Fusco: Don’t spend a lot of time on that because we all know that an area variance even if it is self-created they can grant the variance. If you have proof regarding traffic and the impact traffic backing up on the right lane or if you have a witness who can testify to that we would like to hear that.
Ms. Marsh: Before I turn it over to Greg to speak on the traffic I would like to point out to this board you are accurate as far as the test you are looking at it is specific to the area variance. Do those two variances as far as the location of that building have a detrimental impact to the neighbor? Greg will speak about the traffic and certainly development on that property is going to impact the adjacent neighbor but that is not to say you can deny an area variance except for that requirement to kill a project because there will be more traffic that is not part of the test and I will turn I over to Greg
Mr. Fusco: Let me ask you a question before you turn it over on that what about the argument that the building wasn’t as long and the area variance wouldn’t be needed so by making the building the size your have chosen to make it you then you require that the variance that impacts Bachman.
Ms. Marsh: Well I personally don’t think the variance impacts Bachman your theory if we had a smaller building that didn’t require the area variance we would be having the same arguments about traffic maybe there will be one less car that goes in there. It wouldn’t be in front of this board as far as whether or not there is development but this board is suppose to be looking at the setbacks not all of the site plan details that we are going to have to talk to the Planning Board about. We voluntarily offered this access a benefit to the Bachman’s a benefit, we put that on the table but all this discussion what would be part of the access it is not a driveway it is an allowance for access and what we are happy to voluntarily provide for this board’s consideration is I do know that Mr. Bachman was at the
last meeting and we called him practically day to day to have this discussion but his attorney just called me today. So that is why the plan has not been changed but we would be happy to show that we could allow the access over the green space, that could be made, but as far as my concern in that can we come up with a reasonable easement goes right back to what the Chairman was saying that is a personal issue between two property owners. That is the concern I have and I don’t have an expectation that we are going to come up with a reasonable easement that is going to satisfy both these two properties. With that I will turn it over to Greg for some evidence on traffic.
Mr. Westlake: Thank you.
Mr. Leja: I would like to rebut after Mr. Sgromo’s is done.
Mr. Westlake: This is not a trial here people.
Mr. Leja: First of all I have heard something that is new.
Ms. Calarco: Can I ask a question? We are suppose to ask the public if they want to speak for or against. We have been told the property is against, why they are against possibility of traffic back up, end of discussion. The first one is this is how we are going to go with it, this is why we think it will be ok, here is the proof why we think it will be ok, the rest of this discussion are we not well past where we belong.
Mr. Westlake: I agree.
Ms. Calarco: Can we get to back where we belong and make a decision on a variance.
Mr. Tamburrino: We are hearing from the traffic engineer.
Mr. Sgromo: I will read this out loud and then give it to you to make part of the record. This is an email that was sent to Patti Bush at the DOT by our office and what it entails is a comparative study relative to the current configuration site and potential use of the site and what we are proposing to use the site for. “Patti- Attaches is a Comparative Use we prepared comparing the traffic volumes generated by the site with a previous use and with the proposed use. Please let us know if this level of analysis is acceptable so that we can proceed toward a permit. Thank you”.
The Comparative Use Summary reads as follows: “the property at 298 Grant Avenue is .62 acres in size and is located on the east side of Grant Avenue (New York State Route 5) in the City of Auburn. The property is opposite the signalized entrance to the Wal-Mart plaza, although there are no signal heads dedicated to the ingress/egress to this property.
Previous use of this property, currently zoned C-3, was a 2,280 square foot KFC with no drive-through window. The proposed us is a 3,500 square foot cellular telephone sales store. The ITE Manual for fast-food restaurants without drive-through window (Land Use 933) indicates the average trip generation rate during the PM peak hour of the generator, to be 52.4 trips per 1,00 square feet of floor area, or 119 total trips.
Since there is no representative land use in the ITE Manual for a cellular telephone store, actual counts were taken at a 4,000 square foot store on Erie Boulevard, in the Town of DeWitt on June 15, 2011 from 4:00 to 6:00 pm. These counts showed that during the peak hour (5:00 to 6:00 pm), 75 total trips were counted at this location.
When compared to the trip generation of the KFC Restaurant, this represents a 37% reduction in total trips at the proposed location in Auburn”.
Mr. Fusco: Are those documents that you generated, traffic numbers that you generated?
Mr. Sgromo: This is the document that we generated we preformed a traffic count
Mr. Fusco: Are you submitting that as part of the record?
Mr. Sgromo: I absolutely will.
Mr. Fusco: When you submitted that to the DOT what was their response?
Mr. Sgromo: Current discussion we have had with the DOT is that we have approval for everything they are waiting for our final calculations relative to whether single pole and sand wire can support the new signal head and what modifications need to be made. The final plans will be submitted to the DOT once we get through the Planning Board process.
Mr. Fusco: What experience or training do you have in traffic studies visa vie traffic lights and back up and things like that?
Mr. Sgromo: I worked for New York State DOT; I have been doing traffic studies since 1988. Our firm does traffic studies on a regular basis currently I have 2 or 3 going on at this point in time.
Mr. Fusco: And based upon that education, training and experience do you have an opinion as to the backing up of traffic blocking access to the Bachman property were this project approved?
Mr. Sgromo: I do.
Mr. Fusco: What is it?
Mr. Sgromo: Let me take a little perspective on this. The 75 or so trips per hour include trips coming in and going out in every direction whether it be west or south. Keep in mind let’s say a quarter of those trips were going to be coming in, in front of Mr. Bachman’s property coming to that light would be 1 vehicle every 3 minutes. Keeping that perspective that signal would turn over 3 times.
Mr. Fusco: You would have to assume half and not a quarter because the population tends to come from the direction from Mr. Bachman’s place, how many cars would that be per minute?
Mr. Sgromo: One every 1½ minutes keeping perspective under about one hundred vehicles coming in and out the NYSDOT doesn’t require any more than something like that.
Mr. Fusco: And based upon that data do you have opinion and if so what is your opinion?
Mr. Sgromo: I believe there will be absolutely no significant increase in delays or impacts on the driveways entering Mr. Bachman’s property. Actually there could be a reduction of what could go in tomorrow without anything if you were to put a restaurant in there which would not seek a variance.
Mr. Westlake: Thank you.
Mr. Sgromo: Your welcome.
Mr. Leja: I have 2 brief points. With your permission.
Mr. Westlake: Go ahead sir.
Mr. Leja: Two quick points, one: Mr. Sgromo testified he gave sent the DOT an email with all the information in it. DOT hasn’t come back with anything in writing nothing in front of this board other than his round about way of saying well we think DOT will be ok with that. Nothing says that DOT is ok with it. Number two: It is the duty of this board to look at burden of the applicant to mitigate whenever possible and to make the variance as small as possible to make the impact as small as possible. They could shrink the store and eliminate the need for a variance in which case it wouldn’t be in front of this board at all. They chose not to do that. By choosing not to do that they present themselves wide open to this board to say what about our project creating a potential hardship in the neighborhood not just for the
subject of the variances that we are looking at but the neighborhood as a whole. They opened themselves up to that by coming in and asking for a variance. And tonight I am here telling you on behalf of my client the adjacent property we think there is an impact. Is it a minimal impact yes they can do it by one shrinking the store and not needing a variance at all in which case your job is done. Or two they might be able to mitigate it by coming to some type of arrangement with a nearby property owner to eliminate the traffic impact, but they chose not to do that and this is where I am asking you to keep this in mind when making your decision. Thank you.
Mr. Westlake: Thank you very much sir. I don’t think we have enough information I personally don’t you are six other members, I don’t have enough information tonight to make a real good decision because let them work this out about whatever driveway or whatever you want to call between themselves.
Mr. Darrow: Before we discuss this could I have two minutes with our counsel?
Mr. Westlake: Certainly. (Mr. Darrow and Mr. Fusco go into conference room).
Mr. Fusco: Let the record reflect that what Mr. Darrow and I discussed in private was his concern that a personal he is involved with might be a conflict of interest and I assured him that it was not and it is not even the type of situation that the law requires that he discloses before he votes.
Ms. Calarco: Motion to close public to be heard.
Mr. Baroody: Second.
Mr. Westlake: All in favor. If they had this all hashed out before they came here tonight about that easement from one person’s property to the other person’s property we probably wouldn’t need to be here right now they would have had this settled one way or the other. Until this came up tonight I didn’t know anything about this in between deal. Does it impact them I don’t know I am no DOT expert. If they shrunk the building that also would be a moot point.
Mr. Darrow: I tend to agree with you were in the beginning and I also believe that it was important for us to hear for the neighbor being in opposition. We heard from the neighbor and it is up to us to weigh in our minds is this a hardship or change in the character of the neighborhood. I personally can make my mind up on that. Now we are addressing the three points of the variance and I agree 100% with you are there any of these variances that can go away because we are required by law to give the least minimal amount of variance. But then we also have to look return on the size of the store can the 1400 square foot s tore turn over the same return on investment as far as merchandise and employees as a 2400 square foot store. That is only something they know and only something that they can present. So that is what you are getting by
this is why there is enough information that shows that you can’t make due with a smaller store if that is what you are saying I fully agree on that. Other than that I can go with what is submitted.
Ms. Calarco: We listened to we heard the disagreements they think it is not going to work for them. We have listened to many other people with the same reasons. We listen to both sides and our responsibility right now they are asking for an area variance. It doesn’t matter whether we think you can get by with a smaller store, this is what they want. We have heard both sides it is either a yes or a no each of us is entitled to do so. Let’s move forward.
Mr. Tamburrino: I am ready to make a decision.
Mr. Westlake: Ok. Do I hear a motion?
Mr. Darrow: I would like to make a motion that we grant Frontier Development, LLC/James Leach for property at 298 Grant Avenue a 20 foot area variance of the required 30 foot rear setback; a 40 foot area variance of the required 50 foot buffer area and an area variance of 140 planting units of the required 220 planting units of rear buffer as submitted on plot plan.
Mr. Fusco: And the submittals of counsel and testimony of the witnesses.
Mr. Tamburrino: I second the motion.
VOTING IN FAVOR: Ms. Marteney – I don’t believe this variance has an adverse effect on the physical or environmental conditions in the neighborhood.
Mr. Fusco: What about the self-created hardship issue.
Ms. Marteney: I don’t believe it was self-created.
VOTING IN FAVOR: Mr. Baroody, Mr. Darrow – I believe it is a very viable use for this vacant property that has been vacant for years, Ms. Calarco – It is a commercial property, Mr. Kilmer – I think the engineer’s testimony was the key and he has experience in regard to the traffic situation, Mr. Tamburrino – I agree I think the traffic engineer’s testimony absolutely changed my mind. It has been an abandoned eyesore for 15 or 20 years so a far as the neighbor is concerned I think it is a benefit, Mr. Westlake
Mr. Westlake: Your application has been approved good luck with your project.
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33 Liberty Street. R1A zoning district. Applicant: Robin Madill. Area variance for above ground pool (too close to rear and side property lines) and variance for new shed 8 x 12, too close to rear property line.
Mr. Westlake: 33 Liberty Street please come to the podium; tell us your name and what you would like to do.
Ms. Madill: My name is Robin Madill and I would like to get a variance for a pool and shed on my property.
Mr. Westlake: Any questions from the board? The pool is already there from what I could see.
Mr. Tamburrino: My question is I drove by the property last month and it seems pretty tight back there. Where are you going to place your pool equipment?
Ms. Madill: There was a pool there prior and I have been going for therapy for over 3 year due to a injury and Workers’ Comp cut my physical therapy and I have been put in a situation where in order to do my daily routine is to get a pool and continue with my therapy so I went and got it installed hoping that the variance would be approved and that the shed would be right next to the pool.
Mr. Darrow: On the application you have the size, as 20 x 54 you mean the diameter of the pool is 20 and a height of 54?
Ms. Madill: Yes.
Mr. Westlake: Thank you we will let you know in a minute here.
Is there anyone here wishing to speak for or against this application? Seeing none we will close the public portion and discuss amongst ourselves and let you know shortly.
Mr. Darrow: Is there a plot plan in the packet?
Mr. Westlake: Yes there is, 5th page in.
Mr. Darrow: Thank you.
Ms. Marteney: It is a small yard there is no other way to fit it in.
Mr. Tamburrino: And it is already there.
Mr. Westlake: The pool is but not the shed.
Mr. Baroody: It is on the hospital side.
Mr. Westlake: The shed will be towards the hospital parking lot and the pool is right behind the house. Any more discussion?
Mr. Baroody: I would like to make a motion that we grant Robin Madill of 33 Liberty Street two (2) area variances; 1) an area variance for 3 feet of the required 10’ of the side line set back and 2) an area variance of 5’1” of the required 10’ rear yard set back for pool and shed as submitted on plot plan.
Mr. Tamburrino: I second the motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved.
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124 Grant Avenue. C3 zoning district. Applicant: Cricket Store. Area variance for additional signage.
Mr. Westlake: 124 Grant Avenue please come to the podium; tell us your name and what you would like to do.
Mr. Hasan: Hi I am Magdi Hasan. I am trying to get a variance for signs at the store. There are not enough signs on it as it is.
Ms. Marteney: When you say banner on the side of the building what does that mean?
Mr. Hasan: Sometimes we have specials or promotions that are going on not every month but like Christmas, tax season and different times
Mr. Tamburrino: What is the banner?
Mr. Hasan: Like a different promo you can tack it up.
Mr. Tamburrino: Piece of fabric?
Mr. Hasan: Right like vinyl.
Mr. Tamburrino: Just wanted to make sure that was clear. You have 2 banners here one on each side they are vinyl you can tack them up. You have window decals
Mr. Hasan: All those are gone it is just painted white. Only thing is the Open sign and one sign on the right hand side that says Cricket the open sign with the circle that is gone. Don’t have much on top all it is an awning and all they did was put a decal over the existing person who had it before.
Mr. Tamburrino: These are small.
Ms. Marteney: If the decals are gone how many signs do you want?
Mr. Hasan: Just what you see.
Mr. Westlake: According to the application you want 10 new signs but only 2 are allowed. Where are the 10 new signs that you want? I see the Cricket on top, 2 banners, I see the 3 circles
Mr. Baroody: There are 6 on the door.
Mr. Darrow: And there is a sandwich board sign too out there.
Ms. Marteney: Sandwich board doesn’t count does it?
Mr. Paulsey: It would.
Ms. Marteney: Then there are more than 10.
Mr. Hasan: The decals aren’t there any more I took them down and underneath it has been painted all white.
Mr. Darrow: The decals is that is what is underneath the sign that says Authorized Dealership, those are gone.
Mr. Hasan: Yes
Ms. Marteney: You need only 7 signs.
Mr. Westlake: So it is the Cricket sign on top, 2 banners, the 3 circles
Ms. Marteney: No those are gone the circles are gone.
Mr. Darrow: Sign on the awning and left and right on the building
Mr. Baroody: Everything except the 3 circles.
Mr. Hasan: Yes. There is a pole sign.
Mr. Baroody: Sandwich board sign 1 or 2?
Mr. Paulsey: Two
Mr. Darrow: Pole sign is 2 as well?
Mr. Paulsey: No pole sign is 1.
Mr. Westlake: I would like to have him clarify what signs he wants not just 1- sings so we all know that we are verifying 10 signs. I don’t know what he is asking for here. I see the Cricket sign on the top the big one, banner and banner is three, the little Cricket sign is four, the open sign is five, the two rectangle is six and seven, eight and nine would be the sandwich board but that is not allowed so you can’t use that any more and you say you have a pole sign.
Mr. Hasan: Over the sandwich board.
Ms. Marteney: That is eight signs.
Mr. Westlake: We have to clarify this because if you put up different sign than what we approved, we just can’t approve ten signs we have to have a definitive answer.
Ms. Marteney: You have eight signs and how many can he have?
Mr. Westlake: Two.
Ms. Marteney: So he needs six.
Mr. Westlake: If you read the application here it says the applicant is requesting an area variance n order to erect and install ten signs. Only two signs are allowed to be erected we are not going to allow ten
Mr. Baroody: The sandwich board is temporary it comes in every night.
Mr. Hasan: The sign is on the side of the building right now.
Mr. Darrow: Eight signs total he allowed is two the variance is for six.
Mr. Westlake: Ok, that is what I see. Thank you very much. Is there anyone here wishing to speak for or against the application? Seeing none we will close the public portion and discuss amongst ourselves and let you know shortly. Any other questions from the board?
Mr. Darrow: I think if we do the number signs if he wants to switch them out he doesn’t have to come back but if we do exact verbage size
Mr. Baroody: Let’s go with the number of signs as submitted
Mr. Westlake: But if we allow him six signs he can change the size of the signs.
Mr. Baroody: As submitted. List the signs the Cricket sign on top of the building would be 10’ x 2’, the banners on the left and the right of the building would 6’ x 3’, the sign on the left door would be 2.5’, the center door with the rectangle would be 2’ 10” x 1’ 2”, the rectangle on the right would be 2’ 6” x 1’ 3” and the pole sign is there.
Mr. Westlake: The window decals are gone. Is everyone good with this?
Mr. Baroody: I would like to make a motion that we grant Magdi Hasan/William Merritt, 124 Grant Avenue, an area variance as submitted per plan per the dimensions shown for six additional signs.
Mr. Kilmer: I second the motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino
VOTING AGAINST: Mr. Darrow – I feel it should be total amount of square footage included, Mr. Westlake – I go along with Mr. Darrow for the same reason.
Mr. Westlake: Your application has been approved. Good luck with your project.
Mr. Hasan: Thank you.
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2 Sherman Street. R1 zoning district. Applicant: Ray Kilmer. Area variance for front yard parking.
Mr. Westlake: 2 Sherman Street please come to the podium; tell us your name and what you would like to do.
Mr. Kilmer: Ray Kilmer
Mr. Fusco: Let me interrupt a moment. The answer to #10 on your application is insufficient. We have to find item #10 as a matter of law. So for you to say you don’t suffer any economic injury is self-defeating. I am not trying to kill your project any ideas getting cars off the street can be noble, but people sometimes look over our shoulder when we make decisions. Item #10 is not answered correctly.
Mr. Baroody: Would you like to revise and resubmit your packet?
Mr. Kilmer: I really don’t understand how to answer that question. I just want to redo a driveway and add a few feet to it.
Mr. Fusco: Let me help you answer that question do you think your property would be valuable if this variance were granted?
Mr. Kilmer: Probably yes.
Mr. Fusco: That is the answer. Now would you like 30 days to amend?
Mr. Kilmer: Yes.
Mr. Westlake: 2 Sherman Street it tabled to the September meeting. All in favor.
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141 Garrow St. Ext. R1 zoning district. Applicant: Lynette Geisinger. Area variance for shed.
Mr. Westlake: 141 Garrow St. Ext., please come to the podium; tell us your name and what you would like to do.
Mr. Williams: My name is Mark Williams. I want to put a shed/storage space to get my and Lynette’s garage cleaned out.
Ms. Marteney: What is your relationship to the applicant?
Mr. Williams: Boyfriend.
Ms. Marteney: Ok Lynette’s name is on the application.
Mr. Williams: Yes. Looking to put something out back for storage put my bike away and lawn mowers and have access for her car to get into the single bay garage.
Mr. Tamburrino: On the plot plan the shed is over the property line is that correct?
Mr. William: No because we own the property right behind it.
Mr. Tamburrino: That is what I thought.
Mr. Williams: We purchased it 82 Mary Street, just a stretch of woods basically.
Mr. Fusco: But is it on a separate tax map number?
Mr. Williams: I think it is but I listed it in the application.
Mr. Fusco: Problem is encumbrance from one property goes onto another that it is a separate tax map number without conjoining the two.
Mr. Williams: I don’t know if the City has put it on one lot, but probably 2 separate lots.
Mr. Fusco: That is answer that we need to know and there is a procedure for you to be able to conjoin those 2 properties into 1 without having to go to the Planning Board for approval. Get my drift?
Mr. Williams: I understand.
Mr. Fusco: See what I am saying but there is a way to cure that problem first. There is conjoining procedure that our Code Enforcement Office can help you with. You don’t have to go to the Planning Board, our Code Officers know how to do that procedure, you cure that defect then you are no longer straddling 2 properties.
Mr. Baroody: Or relocate the shed.
Mr. Williams: I want to keep it out back.
Mr. Westlake: Would he need a variance if he joins them together?
Mr. Williams: It is too big.
Mr. Darrow: Over the square footage.
Mr. Williams: Table until next month.
Mr. Westlake: 141 Garrow St. Ext. tabled until the September meeting – all in favor.
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413 S. Seward Avenue. R1 zoning district. Applicant: Gerald Fisher. Area variance for front porch.
Mr. Westlake: 413 S. Seward Avenue please come to the podium; tell us your name and what you would like to do.
Mr. Fisher: Jerry Fisher and we would like to put a porch across the front of the house.
Mr. Fusco: Near the end of your application you indicate that you may change your mind and put on mind and put up a 30 x 8 instead of 30 x 10. You may want to revise or remove that one of the elements for an area variance under New York State Law is that the board can only grant you a minimum variance needed. For you to say I can get by with an 8 x 30 but I really want to have a 10 x 30 is self-defeating.
Mr. Fisher: We just decided to go with the 8 x 30.
Mr. Fusco: You want to go with 8 x 30?
Mr. Fisher: Yes sir.
Mr. Westlake: So it will be 7’ 4” instead of 9’ 4”. Any questions from the board?
Mr. Darrow: What is the current size or size of the porch now?
Mr. Fisher: Just have a little stoop right here 5 x 5.
Mr. Darrow: In the front of the window ok.
Mr. Tamburrino: Will it be an enclosed or open porch?
Mr. Fisher: It is an open porch.
Mr. Westlake: Thank you. Is there anyone here wishing to speak for or against the application? Seeing none we will close the public portion and discuss amongst ourselves and let you know shortly.
Mr. Fisher: Thank you.
Ms. Marteney: All the houses on the street have front porches. Only one without a porch.
Mr. Tamburrino: I don’t see an issue.
Mr. Darrow: I would like to make a motion that we grant Gerald and Donna Fisher of 413 S. Seward Avenue a 7’4” front area variance for the purpose of erecting a 8’ x 30’ front porch as submitted in plot plan.
Mr. Tamburrino: I second the motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved. Good luck with your project.
Mr. Fisher: Thank you very much.
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