Members Present: Peter Barber, Chairman
Patricia Aikens
Sharon Cupoli
Mike Marcantonio
Susan Macri
Tom Remmert, Alternate
James Sumner
Janet Thayer, Counsel
Absent: Chuck Klaer
____________________________________________________________________
Chairman Barber opened the meeting and pointed out the emergency exits to the left and rear of the room in the event they were needed.
CONTINUED CASES:
MATTER OF INSURANCE AUTO AUCTIONS - NEIP
Jim Sumner recused himself from this application.
Chairman Barber stated that there was a public hearing on the interpretation request at the last hearing and continued for decision only and to allow the applicant to submit additional information.
John Stockley stated that in addition to salvage vehicles, there are also a number of vehicles that are operational both from repossessions or recovered stolen vehicles. Mr. Stockley stated that this is a quick moving inventory and that sets them apart from junkyards.
Chairman Barber asked Don Cropsey about the allegation that a competitor had previously operated in NEIP without any Town objections for a number of years.
Don Cropsey replied that there was a company in there that did much the same as is being proposed here but was unable to find any special use permit issued for the company; it could have occurred prior to the current zoning law (1987).
Chairman Barber asked Don Cropsey if he ever recalled an interpretation for the word junkyard.
Don Cropsey stated that he was not aware of any since he has been here (1982).
Counsel Thayer gave a brief overview of the standards reviewed for the interpretation; stating that the Board's job is to take the information provided by the applicant and apply the facts to the Code.
Chairman Barber made the following motion regarding:
Interpretation Request No. 3919
Request of Scott Petit for an interpretation of the Zoning Law to: determine if the storage and sale of total-loss vehicles can be considered a junkyard as defined in the Town of Guilderland Zoning Law.
Per Article V Section 280-56B respectively
For property owned by: Northeastern Industrial Park
Situated as follows: Van Buren Blvd. Guilderland Center, NY 12085
Tax Map # 50.00-1-14.21 Zoned: IND
This is a request by Insurance Auto Auctions for an interpretation, pursuant to §280-56 of the Town Code, regarding word "junkyard" as defined in §280-5 and used in §280-23(C) under which a junkyard is prohibited in an Industrial Zone.
This matter arises from the Chief Building Inspector and Zoning Administrator's determination that the applicant's proposed use is a "junkyard" as defined by the Code. This concern was brought to Mr. Cropsey's attention by the Chairman of the Planning Board after that Board's site plan review of the application. This Board is authorized to interpret provisions of the Code pursuant to§280-56.
Our interpretation starts with the definition of "junkyard" as set forth in §280-5. The definition states:
JUNKYARD - A lot, land or structure, or part thereof, used for the collecting, storage or sale of wastepaper, rags, scrap metal or discarded material; or the collecting, dismantling, storage, processing or salvaging of machinery or vehicles not in running condition or for the sale of the parts thereof, all when operated as a business on site where an employee is in attendance for the entire working day to receive deliveries and to be responsible for ensuring that materials brought to the site are stored in a manner that will not result in a any sort of nuisance to property or persons off the site.
As Board counsel has advised, our role is not to legislate or re-write the code no matter how old, wordy, or cumbersome the definition may be or what a layman's understanding of what is a junkyard. Our role is to construe the Code as written by the Town Board, giving meaning to all its words and phrases.
The definition is neither ambiguous nor vague. It clearly includes collecting, storage, and processing of vehicles not in running condition.
In its application for a Special Use Permit, the applicant describes the use as "storage of salvaged vehicles." The application for this interpretation states that the use includes the assembling of vehicles into groups, the temporary storage of vehicles for approximately 60 days, and the sale of the vehicles. The Short Environmental Assessment Form describes the project as follows:
Applicant proposes to store vehicles for salvage vehicles (1050 +/- cars including employee and visitor parking) under the 10-acre original application and 1780 +/- cars if the entire 16.64 acres is utilized.
The applicant's letter dated January 23, 2006, also states "it operates facilities where valuable total loss vehicles are assembled in lots, warehoused briefly, and sold as quickly as possible to licensed buyers worldwide."
Based upon this evidence, it is the interpretation of this Board that the proposed use involves the collecting, processing, and storage of inoperable motor vehicles and fits within the Code's definition of a junkyard. Indeed, collecting and storage of inoperable motor vehicles is the dominant use in terms of both time (60 days of anticipated storage) and acreage (10 or 16 acres of storage).
It is also important to note that a junkyard is one of 50 prohibited uses in an Industrial zone. There are more expressly prohibited uses in an Industrial zone than any other zone. Many of these prohibited uses involve activities which might pose a risk to the Town's water supply, a concern also identified by the Town Planner and the Town Water & Wastewater Management.
I disagree with the argument that a literal reading of the definition of "junkyard" would mean that a non-operable lawn mower next to a house, would make it a junkyard or a non-operable automobile next to a gas station would render it a junkyard. Such an interpretation would ignore other more specific definitions of a residence or a gas station which more accurately describe the primary use of the property. Defining such incidental uses as a junkyard would effectively negate these more specific definitions.
The applicant also contends that a competitor operated a similar operation in the industrial park without Town objections. The Zoning Department has no record of an application for a special use permit for a similar use at this location. The records also do not reflect any request for an interpretation of the definition of a junkyard.
For these reasons, I would move to sustain the Chief Building Inspector and Zoning Administrator's determination and find that the use proposed by the applicant fits the definition of a "junkyard" as defined by §280-5 and used in §280-23(C) of the Code. Motion seconded by Sharon Cupoli. Vote 6 - 0. (Sumner recused, Klaer absent, Remmert alternate)
MATTER OF FUSCO ENTERPRISES - 1769 WESTERN AVENUE
Counsel Thayer read the legal notice:
"Notice is hereby given that the Zoning Board of Appeals of the Town of Guilderland, New York, will resume a public hearing pursuant to Articles III, IV & V of the Zoning Law on the following proposition:
Special Use Permit/Variance Request No. 3821
Request of Victor Caponera for a Use Variance, Area Variance and Special Use Permit under the Zoning Law to permit: the demolition of an existing self-service car wash facility, a nonconforming use, and to reconstruct a similar car wash facility in a different location on the same lot. Area variances are sought for the following: to allow placement of the proposed structure within a 45' front setback along Camp Terrace.
Per Articles III, IV & V Sections 280-20, 280-25 & 280-51 & 52 respectively
For property owned by Fusco Enterprises, Inc.
Situated as follows: 1769 Western Avenue Albany, NY 12203
Tax Map # 52.09-4-12.2 Zoned: LB
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 1st of February, 2006 at the Guilderland Town Hall beginning at 7:30pm.
Dated: January 25, 2006"
The new additions to the file include a letter dated November 22, 2005 from Victor Caponera and included with that was tax information requested by the Board, materials submitted by Joe Bianchine of ABD Engineers & Surveyors dealing with site access and traffic circulation, and Synthesis has provided an analysis of the noise impact based upon the proposed use and comparing it to similarly situated facilities.
Chairman Barber reminded the Board that Walter Kresge had provided an analysis in September of 2005 in which he concluded and found that no uses allowed in this zone would provide a reasonable rate of return based upon the size of the lot and the cost associated with the construction of buildings for those various uses. Chairman Board suggested that even before the consideration of the special use permit they first need to decide whether to grant a use variance.
Chairman Barber made a motion of non-significance in this Unlisted Action:
"This Board has conducted a review of this application to ascertain whether the granting of this Use Variance as requested by Fusco Enterprises would have a significant impact upon the environment. This Board concludes that there will not be a significant impact based upon the comments provided to us by the various entities that have reviewed this application. This is also based upon our review of the materials submitted to date which indicate that the proposed use by moving it forward, the bays from 6 to5, reducing the amount of pavement, altering the traffic circulation around the site, landscaping and berming - all of those collectively would mitigate any impacts upon the environment. These issues will be addressed more fully in the Special Use Permit review. Therefore, a negative declaration under SEQRA
should be issued." Motion seconded by Sharon Cupoli. Vote 7 - 0. (Klaer absent, Remmert alternate)
Chairman Barber made a motion for approval of:
Use Variance Request No. 3821
Request of Fusco Enterprises for a Use Variance for property located at 1769 Western Avenue and involves a car wash facility.
For property owned by Fusco Enterprises, Inc.
Situated as follows: 1769 Western Avenue Albany, NY 12203
Tax Map # 52.09-4-12.2 Zoned: LB
The Board finds the following facts:
· Public notice was duly noticed and comments have been heard on this application at various dates set forth in the record.
· Comments have been received from the Albany County Planning Board, the Town Planner and the Town Planning Board all of which will deal more appropriately with site plan review and issues and conditions that might be appropriate upon the issuance of the special use permit.
· In a June 17, 2004 decision, this Board sustained the Chief Building Inspector and Zoning Administrators interpretation that the proposed application required a use variance. There had been a suggestion that this was a prior nonconforming use and that the demolition and reconstruction of the buildings would not require a use variance. Again, the Board sustained Don Cropseys determination that a use variance was required.
· The Board appointed Walter Kresge to review the financial materials submitted by the applicant, in particular the dollar and cents proof that the applicant submitted which included tax returns and other materials. In his determination and analysis of those records, Mr. Kresge determined that no reasonable rate of return could be achieved for any of the permitted uses in the Local Business zone. Mr. Kresge reviewed and analyzed each of the 18 permitted uses in the Local Business Zone and concluded that none would achieve a reasonable rate of return primarily due to the size of the lot and the costs associated with developing the lot. Based upon this expert analysis and the applicant's submission, the financial requirement for a Use Variance has been established.
· The Board further finds that the character of the neighborhood will not be negatively impacted by the granting of this application as the issues relating to the site plan would be more appropriately addressed in the context of the Special Use Permit application.
· Based upon the review of the application so far, it appears that the berming which may be required to be increased in terms of height, will further reduce any visual impacts of the car wash.
· Synthesis reports that the decibel use will comply with the Town's 2003 noise ordinance.
· The situation represents a unique circumstance based upon the size and arrangement of the lot and does not apply to a substantial portion of the district.
· The Board also finds that the hardship was not self-created. When the car wash was constructed, it was a permitted use in the zone and received the necessary approvals. In 1987 the Zoning Code was changed which made this use prior nonconforming and necessitated this request for a Use Variance.
The Board grants this request with the following conditions:
· There will be a hearing stating the conditions imposed when the Board considers the Special Use Permit and Area Variance request.
If this Variance is not exercised within one year of date of issuance, it is hereby declared to be null and void and revoked in its entirety.
Motion seconded by Sharon Cupoli. Vote 7 - 0. (Klaer absent, Remmert alternate)
The Board made some recommendations for next meeting: a higher berm to mitigate noise and visual impact, a lighting plan, a colored rendering and a stormwater management plan.
Chairman Barber made a motion to continue the hearing to consider the special use permit and the area variance to the next meeting on February 15th. Motion seconded by Sharon Cupoli. Vote 7 - 0. (Klaer absent, Remmert alternate)
MATTER OF WILLIAM AND DONNA NIEMAN - 3 WOOD STREET
Tom Remmert read the legal notice:
"Notice is hereby given that the Zoning Board of Appeals of the Town of Guilderland, New York, will hold a public hearing pursuant to Articles III & V of the Zoning Law on the following proposition:
Variance Request No. 3923
Request of William and Donna Nieman for a Variance of the Regulations under the Zoning Law to permit: the construction of a single story garage and family room in a required front and side yard. A front setback of 31' and a side yard setback of 8.5' are proposed. Variances of 4' and 3.5' are requested respectively.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by: William J. Nieman
Situated as follows: 3 Wood Street Albany, NY 12203
Tax Map # 63.08-4-19.2 Zoned: R10
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 1st of February, 2006 at the Guilderland Town Hall beginning at 7:30pm.
Dated: January 23, 2006"
The file consists of the legal advertisement with mailing to neighboring property owners, the variance application, the narrative, the Town Planners comments, a map of the location of the property, a site plan and schematics of the proposed addition.
The Town Planner had the following comments: "The applicant is requesting two area variances to build a residential addition which will encroach into the side and front setbacks. No planning objections."
William Nieman, applicant, presented the request. Mr. Nieman stated that their house is a raised ranch and have run out of storage space. They will be moving the garage 16' to the west side of the house and also move it forward.
Chairman Barber asked if the addition would be constructed with the same type of materials as the existing house.
Mr. Nieman stated that it would.
Chairman Barber asked Mr. Nieman if he had talked to his neighbors at all about the request.
Mr. Nieman stated that the neighbors immediately around them know of the request.
Chairman Barber asked if there were any questions or comments from the residents. There were none. Chairman Barber made a motion to close the public hearing. Motion seconded by Sue Macri. Vote 7 - 0. (Klaer absent, Remmert alternate)
Chairman Barber made a motion for approval of:
"Variance Request No. 3923
Request of William and Donna Nieman for a Variance of the Regulations under the Zoning Law to permit: the construction of a single story garage and family room in a required front and side yard. A front setback of 31' and a side yard setback of 8.5' are proposed. Variances of 4' and 3.5' are requested respectively.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by: William J. Nieman
Situated as follows: 3 Wood Street Albany, NY 12203
Tax Map # 63.08-4-19.2 Zoned: R10
The Board finds the following facts:
· Public notice was duly noticed and held this evening. Notice was supplemented by mailing the legal notice to properties within 500' of this property. No residents provided either written or oral comments.
· This is a Type II Action under SEQRA, not requiring SEQRA review.
· The Town Planner had no objections to the granting of these area variances.
· The Board further finds that the proposed addition will not negatively impact the neighborhood and that many of the lots within a short distance have side yard setbacks that are far less than proposed here.
· The variance is modest in amount and is not readily discernable from the road.
· The proposed addition will be constructed of materials matching the current house and be aesthetically pleasing.
The Board grants this request with the following conditions:
· The Board is relying upon the plans and drawings submitted by the applicant.
· Because this is located in a residential area, any construction shall be limited to the following hours - Monday - Friday from 7am to 6pm, Saturday from 9am to 5pm with no construction allowed on Sunday.
· The materials used in terms of color and style shall be substantially similar to the existing house.
The Zoning Administrative Office is hereby authorized to issue the permits necessary to implement this decision.
If this area variance is not exercised within one year of date of issuance, it is hereby declared to be null and void and revoked in its entirety.
Motion seconded by Sharon Cupoli. Vote 7 - 0. (Klaer absent, Remmert alternate)
MATTER OF SUSAN SIKULE - 2073 WESTERN AVENUE
Sharon Cupoli read the legal notice:
"Notice is hereby given that the Zoning Board of Appeals of the Town of Guilderland, New York, will hold a public hearing pursuant to Articles III, IV & V of the Zoning Law on the following proposition:
Amend Special Use Permit #40-96/Variance Request No. 3924
Request of Susan Sikule of Just Cats Veterinary Clinic for a Variance of the regulations/Amend Special Use Permit #40-96 under the Zoning Law to permit: the conversion of an existing single family home and the construction of a two story structure to expand and connect to an existing veterinary clinic. This proposed conversion and addition will add 3430sf for a total sf area of 4598sf. A total of 30 parking spaces are proposed. Up to 12 employees will occupy the facility during maximum shift. A parking variance of 13 spaces is requested.
Per Articles III, IV & V Sections 280-19, 280-25 & 280-51 & 52 respectively
For property owned by: Dr. Susan Sikule
Situated as follows: 2073 & 2075 Western Avenue Guilderland, NY 12084
Tax Map #s 51.02-1-12 & 13 Zoned: BNRP
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 1st of February, 2006 at the Guilderland Town Hall beginning at 7:30pm.
Dated: January 24, 2006"
The file consists of the mailing list to 17 neighboring property owners, the Town's required forms for a Special Use Permit, the Short Environmental Assessment form for an Unlisted Action, the Town Planner's comments, the Town Planning Board's site plan review, Albany County Planning Board's recommendation, a narrative and plans completed by Vollmer & Associates, the prior special use permit, and a letter and photos from Wayne Crounse of 2071 Western Avenue voicing his concerns of the shared driveway and the noise and inconvenience of delivery trucks, site plans and other various documents associated with the site.
The Town Planner had the following comments: "The applicant has requested a special use permit to allow the expansion of the existing Just Cats veterinary clinic into the adjacent building, with an addition to join the two buildings. No variances are needed for this project and there is additional land in the rear if more parking is deemed necessary. Further, the renovations will create an attractive façade along Western Avenue.
My only concern is the access. The proposed calls for the relocation of the existing house's driveway to the western property line. This places it closer to the adjoining office building's access and also to the entrance of the 20 Mall. The DOT will have to approve this new curbcut. Ideally, there would be only one entrance but it appears the space between the structures and the property lines are too narrow for two-way traffic. Further, the area seems tight to allow for truck deliveries.
I have no objection to approval contingent on the issues of access, vehicle circulation and the location of the new curbcut being closely examined."
The Town Planning Board's site plan review is as follows: "Recommend with the following condition: provide a lighting plan, and the following suggestion: consider providing a direct pedestrian from Western Avenue sidewalk to the building."
Albany County Planning Board had the following recommendation: "Modify local approval to include review by NYSDOT for design of highway access and assessment of road capacity."
Susan Sikule, applicant, presented the request. Ms. Sikule stated she is looking to connect the two building that she owns; one is a veterinary clinic and one is a house.
Paul Conant of Vollmer Associates gave a brief overview of the project. There was discussion about the number of parking spaces needed. There would be new landscaping on the front of the building and landscaping on the entrance side. A stormwater detention area is proposed in the rear of the site. They are looking for entrance into the site and an unloading zone where tractor-trailers could unload. The curbcut would be relocated to a different part of the site.
Chairman Barber asked if they think that the trucks could maneuver to clear the driveway.
Mr. Conant felt that they could.
Chairman Barber stated that this would also reduce Mr. Crounse's concerns about cars pulling into his driveway.
Chairman Barber asked if they were proposing any signage.
Mr. Conant stated that they were.
Chairman Barber asked about lighting.
Mr. Conant replied that currently they have four lights proposed.
Chairman Barber asked about pedestrian access.
Mr. Conant thought that it would be hard to achieve.
Mr. Conant discussed the parking; 43 spaces are required but based on Ms. Sikule's business that many spaces are not needed. 30 spaces will be provided and 13 will be banked.
Chairman Barber asked if there were any questions or comments from the residents.
Wayne Crounse, next-door neighbor had concerns regarding the impact to his property. Mr. Crounse stated that there are tractor-trailers, people wandering in his yard, customers parking in their driveway.
Chairman Barber asked if signage would help.
Mr. Crounse replied that there should be signage, right now there is none. The Crounses felt that one way in and one way out is the only way to go and have them add as many parking spaces as they need.
Mike Marcantonio asked how long the deliveries would take.
Ms. Sikule replied approximately half an hour.
Ms. Sikule said her deed stated that the driveway had to be a two-way driveway.
There was discussion regarding the signage needed.
Chairman Barber made a motion to appoint Delaware Engineering to review the lighting plan, drainage plan, traffic circulation and signage and to continue the hearing to March 1, 2006. Motion seconded by Sharon Cupoli. Vote 7 - 0. (Klaer absent, Remmert alternate)
The Board two building mounted signs (total 34.08sf) for It's Only Natural at Stuyvesant Plaza. Vote 7 - 0. (Klaer absent, Remmert alternate).
The meeting adjourned at 8:45pm.
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