Town of Guilderland, NY - Zoning Board Minutes 02-07-2007

Zoning Board Minutes 02-07-2007

TOWN OF GUILDERLAND

ZONING BOARD OF APPEALS

FEBRUARY 7, 2007

Members Present

Peter Barber, Chairman

Patricia Aikens

Sharon Cupoli

Chuck Klaer

Mike Marcantonio

Susan Macri

Tom Remmert, Alternate

James Sumner

Janet Thayer, Counsel

_______________________________________________________________________

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 NEXTEL PARTNERS - WILLEY STREET

Chairman Barber stated that this case was continued to address a couple of concerns that were raised during the application. Since that time, Nextel has provided the Board with a packet of materials that addressed those issues along with some additional photographs of the proposed use.

Chairman Barber stated that they had asked the applicant to go back and look at the worst of the worst case scenarios which meant taking a look at all the antennas on the site and imagining that all the transmitting antennas were focused at a particular location and what the results would be in terms of the FCC health issue guidelines. Chairman Barber stated that under the Telecommunications Law of 1996 if the applicant demonstrates that they are in compliance with those FCC guidelines then basically the Board review on that issue is precluded.

Steve Elsbree of Nextel Partners gave a brief overview of the project. Mr. Elsbree stated that they had submitted supplemental information to the Board in response to the last hearing addressing the cumulative site RF details as far as meeting the FCC guidelines for the maximum permissible exposure for all the carriers. Mr. Elsbree stated that they are in compliance with the FCC guidelines.

Chairman Barber stated that they had also submitted materials regarding the location of the shed and the distance from neighboring houses.

Mr. Elsbree stated that was correct.

Chairman Barber stated that the Board had also received a report from Delaware Engineering.

Kin Johnson of Delaware Engineering summarized his report. Ken stated that they are in compliance with the FCC regulations and they have no problems with the report.

Liesse Mohr of 56 Gipp Road stated that she had looked over the report. Ms. Mohr spoke about Nextel's lack of detail proving their need for these antennas.

Chairman Barber replied that the Board has asked the TDE to review the propagation studies and the TDE has agreed that there is a demonstrated gap.

Liesse Mohr stated that there is nothing in the Town Code that says specifically that you must start by placing antennas on water towers. Liesse stated that the Code also states no towers can be in residential areas.

Chairman Barber replied that the code does encourage antennas to be placed on preexisting structures in lieu of new towers and the universe of available structures is relatively small.

Liesse discussed field monitoring around the tower. Liesse discussed other Town Codes and their requirements for installing new antennas as compared to Guilderland's Code.

Liesse Mohr stated that she felt that the Town should be more involved and active when it comes to installation of antennas and towers.

There was lengthy discussion regarding the analysis by an international scientist regarding the Nextel antennas (in file).

Chairman Barber stated that the Board has asked the applicant and also the TDE to review the worst-case scenario and to report back to them.

Liesse Mohr asked the Board to consider doing RF testing yearly.

Mr. Elsbree discussed the RFP mapping.

Chairman Barber made a motion to close the public hearing. Motion seconded by Sharon Cupoli. Vote 7 - 0.

Chairman Barber made a motion of non-significance in this Unlisted Action:

"This Board has conducted a review of this application to determine whether the granting of this request by Nextel Partners to place antennas on the Willey St. water tower would have a significant impact upon the environment. This review consisted of the public hearing held this evening and on 1-17-07 along with the comments provided by the TDE and also a review of the visual EAF which was submitted by the applicant. Based upon the review of all these materials, the Board finds that a negative declaration under SEQRA should be issued primarily because in determination of the TDE and also our review of the documents that the proposed RF emissions meet the threshold limits set by the FCC." Motion seconded by Sue Macri. Vote 7 - 0.

Chairman Barber made a motion to approve:

Special Use Permit Request No. 3990

Request of Nextel Partners, Inc. for a Special Use Permit under the Zoning Law to permit: the collocation of twelve telecommunication antennas mounted at 90' on an existing municipal water tower. Also included with this proposal is the construction of a 12' x 20' equipment shelter at the base of the tower.

Per Articles IV & V Sections 280-37 & 280-52 respectively

For property owned by Town of Guilderland

Situated as follows: 37 Willey Street Albany, NY 12203

Tax Map # 52.09-4-1 Zoned: R15

In rendering this decision, the Board makes the following findings of fact:

A public hearing was held on January 17, 2007 and continued to this evening. One resident provided us with oral comments and also some additional written submissions this evening.

The Board adopted a negative declaration under SEQRA by a unanimous vote.

In a resolution dated October 3, 2006, the Town Board authorized the water department to enter into a lease with Nextel for antennas on the Willey St. water tower pending approval of a special use permit by this Board.

The Town Planning Board waived review of this application.

The Town Planner had comments which the Board has considered during its deliberations.

The Board appointed Delaware Engineering to serve as TDE to review the applicant's submissions.

Over the years this Board has granted special use permits for other facilities including Verizon, Sprint and T-Mobile which are the three other providers on the tower.

All the other antennas at this tower are at a height in excess of 90' proposed by Nextel.

Under the Telecommunications Act of 1996 telecommunication facilities are treated as public utilities which means that they are not subject to the more strict requirements of a use variance that would otherwise be applicable. Because this is in a residential area the applicant would have to meet a very strict requirement for the use variance but it is not required because Congress decided that these facilities are entitled to a lower standard. That standard being that they must demonstrate two things: 1) that they have demonstrated a need or a gap in service in this area and 2) that the proposed method of meeting this gap in service is the least intrusive means of satisfying the demonstrated need. Nextel has submitted propagation studies which are part of the applicant showing the need which indicate a gap in service in the Westmere area. The Board notes that in this jurisdiction that Nextel and only Nextel has to demonstrate the gap in service. Delaware Engineering has reviewed the application and determined that the need had been satisfied. As for least intrusive means the Board also asked Delaware Engineering to examine this application to determine whether it was the appropriate location. It was also determined that there are no alternative sites which would meet the gap in service primarily because it is a residential area and does not have large structures to collocate on which would service the demonstrated area of need.

The Town Code encourages the sharing of existing structures in lieu of new construction of towers.

The dominant visual impact is the tower itself and the location of these antennas at 90' is shielded in large part by existing vegetation and they are lower than the existing antennas on the tower.

As for the health related issues, the Board appreciates the concerns raised regarding health impacts but as was indicated during the hearing, the Board is largely restricted in what they can review. The Telecommunications Act of 1996 states in particular that no state or local government may regulate the placement, construction or modification of a personal wireless service facility on the basis of the environmental effects; a rate of frequency emissions to the extent that such facilities meet FCC regulations concerning such emissions. That restriction on the Board's review and trying to go beyond the FCC guidelines and looking for more information has been found to be improper by the courts and has been struck repeatedly in this legal jurisdiction. The phrase environmental effects as set forth in that statute includes all health related issues and impacts resulting from electrical devices and emissions.

The Board further notes that those regulations in particular Bulletin 65 state that a wireless facility that is 10 meters in height above the ground and operates below a specified threshold power levels is categorically excluded from review by a local board. These threshold limits have been endorsed by the federal government which states that if you meet the FCC guidelines then local boards are not to review further.

The proposed antennas will be placed at 90' in height which is well in excess of the 10-meter threshold.

With regard to the FCC power levels we asked Nextel to review the cumulative effect of all the levels emitted by all antennas at the site existing and also the proposed antennas by Nextel. It is our goal here to look at the worst-case scenario with the idea that all transmitting antennas are acting at the same time, directed at the same location at full power. Using the antenna power analysis and the antenna main beam analysis which demonstrated that the threshold in one case was less than 1% of the threshold and less than 25% of the allowable threshold under the FCC guidelines. As a result the Board finds that this collocation at the water tower is acceptable and meets the FCC guidelines and also the applicant has demonstrated the need to provide a remedy for its gap in service.

In granting this decision, the Board imposes the following conditions:

Continued compliance with any FCC guidelines and regulations and the Town's Telecommunications Law or any amendments in that law over time.

The antennas and the base equipment be installed in accordance with the plans submitted.

There will no power generation at the site.

The antennas will match as much as possible the existing color of the water tower.

The light shall be shielded and downward directed with an automatic turnoff to avoid any unnecessary impacts upon the existing residences.

The Zoning Administrative Office is hereby authorized to issue the permits necessary to implement this decision.

If this Special Use Permit 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.

NEW CASES

MATTER OF MARIE REYONLDS - 3154 LONE PINE ROAD

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 IV & V of the Zoning Law on the following proposition:

Variance Request No. 3994

Request of Marie Reynolds for a Variance of the regulations under the Zoning Law to permit: the placement of a 20' x 12' detached carport structure within a side yard and within 3' of a side property line.

Per Articles IV & V Sections 280-34 & 280-51 respectively

For property owned by Marie Reynolds

Situated as follows: 3154 Lone Pine Road Schenectady, NY 12303

Tax Map #27.07-2-31 Zoned: R15

Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 7th of February, 2007 at the Guilderland Town Hall beginning at 7:30pm."

Dated: January 29, 2007

The file consists of the mailing list to 39 neighboring property owners, the Town's required forms for an area variance, the Town Planners comments, a narrative and a map that depicts the location of the carport in relation to both the applicant's house and the neighboring property.

The Town Planner had the following comments: "The applicant has applied for an area variance for a carport that was constructed within the required side yard. Although the carport could be moved closer to the house to eliminate the 3' variance, it would be difficult to move it further back because of the existing vegetation. No planning objections."

Gary Reynolds, applicant's husband, presented the case.

Chairman Barber asked what the distance was between the back of the carport and the spruce tree and why the carport could not be moved back a bit.

Mr. Reynolds replied that the distance from the back of the carport to the spruce is 35'. The ground from the back of the carport to the tree has a slope to it which would make it difficult to move it. Mr. Reynolds presented photos as part of the record. Mr. Reynolds stated that he did not realize that he needed a building permit because this was not a permanent structure and did not realize that it could not be put in a side yard.

Chairman Barber asked Don Cropsey if he had a chance to take a look at the site.

Don replied that he did. Don stated that the tree mentioned is quite a ways back and based upon what he observed, it is possible to move the shed back further. Don stated that it did seem relatively flat. Don stated that he did not feel that there was any way to eliminate the side yard variance because if it was moved behind the garage, there would be problems with the tree. Don felt that it could be moved back 15 to 20' without impacting the tree.

Chairman Barber asked if there were any questions or comments from the residents.

Christine Duffy of 114 Benjamin Street felt that the structure was too close to the neighboring property.

Greg Iberger, neighbor of Marie Reynolds stated that the carport was in violation of the code and was too close to his property line and felt that it was a potential hazard because it was not anchored down. Mr. Iberger stated that this carport was not consistent with the design or style of structures on the property or in the neighborhood and could devaluate the surrounding properties.

Chairman Barber asked Mr. Iberger how far his shed was off of the property line.

Mr. Iberger replied that it was approximately 4 to 5' off the line.

Don Cropsey stated that it appeared closer than the 5' required.

Chairman Barber asked Mr. Iberger if the applicant had placed the carport 5' off the property line and completely in the back yard if it would be a greater impact to his property.

Mr. Iberger replied that it would be about the same and he would like to see this structure removed.

Chairman Barber asked Don Cropsey if he would be willing to work with the applicant in possibly moving the shed back and talking to the neighbor.

Chairman Barber made a motion to continue the hearing for two weeks to give the applicant a chance to work with Don Cropsey regarding the possible shifting back of the shed and perhaps coming to a compromise with the neighbor. Motion seconded by Sharon Cupoli. Vote 7 - 0.

MATTER OF CAROLYN CARSON - 3039 OLD STATE ROAD

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 & V of the Zoning Law on the following proposition:

Variance Request No. 3993

Request of Carolyn Carson for a Variance of the regulations under the Zoning Law to permit: a reduction in land area and width at the building line on each of two lots in a proposed subdivision. A variance is requested to allow each lot an area of 13,125sf where 15,000sf is required and a width at the building line on each lot of 75' where 100' required.

Per Articles III & V Sections 280-14 & 280-51 respectively

For property owned by Carolyn Carson

Situated as follows: 3039 East Old State Road Schenectady, NY 12303

Tax Map #27.19-1-34 Zoned: R15

Dated: January 29, 2007"

The file consists of the mailing list to 50 neighboring property owners, the appropriate forms for this area variance, the Town Planners comments, a narrative and a survey of the property to be subdivided.

The Town Planner had the following comments: "The applicant has applied for a subdivision approval to divide the existing parcel into two lots. This would require two area variances since the new lots will not meet the required lot area or width at the building line. The newly created lots will be consistent in size of the majority of lots along this area of Old State Road. No planning objections."

Applicant was not present at the hearing. Chairman Barber made a motion to continue this hearing until next meeting. Motion seconded by Sharon Cupoli. Vote 7 - 0.

MATTER OF SERAFINI BUILDERS - LOT 8 STOYKA PLACE

Sue Macri 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. 3997

Request of Serafini Builders for a Variance of the regulations under the Zoning Law to permit: a reduction in the width at the building line from 150' to 114'.

Per Articles III & V Sections 280-14 & 280-51 respectively

For property owned by Serafini Builders

Situated as follows: Lot #8 Stoyka Place Schenectady, NY 12303

Tax Map #27.16-3-21.111 Zoned: R30

Dated: January 30, 2007"

The file consists of the mailing list to three neighboring property owners, the Town's required forms for this area variance, the Town Planners comments, a depiction of the part of the Patriot Woods subdivision which shows Lot #8 in relation to Lot #6 and Lot #10.

The Town Planner had the following comments: "The applicant is requesting to place a single family home on a triangular shaped parcel that will require a variance for the width at the building line. Although there is no physical reason the house cannot be placed further back on the lot, I have no planning objections since the proposal will more than meet the front setback requirements."

Angelo Serafini of Serafini Builders presented the case. Angelo stated that this is the first home in this subdivision. Angelo stated that lot #6 has a 35' building line and the original plot plan for Lot #8 because of the curvature in the road pushed the lot back. Lot #8 has a unique configuration. Angelo stated that the house would be placed on 45'. Angelo stated that they hope to place the house on Lot #6 to be compatible with the house on Lot #8.

Chairman Barber asked what would be the building line without this variance.

Angelo replied that it would be back 90' because of the curvature in the road.

Chairman Barber stated that even though this is the first lot to be built on, it will bring this lot into greater conformity with the subdivision overall.

Chairman Barber stated that he did not have a problem with the variance and wondered why these issues do not get resolved at the Planning Board level.

Chuck Klaer asked how many other lots in the cul-de-sac would be needing variances.

Mr. Serafini replied right now none.

Chairman Barber stated that around the bend there is another lot that possibly might need a variance but the same argument would apply.

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 Sharon Cupoli. Vote 7 - 0.

Chairman Barber made a motion for approval of:

Variance Request No. 3997

Request of Serafini Builders for a Variance of the regulations under the Zoning Law to permit: a reduction in the width at the building line from 150' to 114'.

Per Articles III & V Sections 280-14 & 280-51 respectively

For property owned by Serafini Builders

Situated as follows: Lot #8 Stoyka Place Schenectady, NY 12303

Tax Map #27.16-3-21.111 Zoned: R30

The decision is granted upon the following findings of fact:

A public hearing was duly noticed and held here this evening. 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.

The proposed location meets the front setback requirement in this zone and granting this variance would align the house consistent with other lots, in particular Lots 1,2,3,4,5 & 6. As this is the first house to be built, it will not alter the character of the neighborhood.

In granting this decision, the Board imposes the following conditions:

Adherence to the plans as submitted by the applicant.

The Zoning Administrative Office is hereby authorized to issue the permits necessary to implement this decision.

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 6 - 0.

MATTER OF TIM ALUND - 2339 WESTERN AVENUE

Pat Aikens 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:

Special Use Permit/Variance Request No. 3995

Request of Timothy Alund for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the use of an existing single-story building, formerly used by a pool construction company as a retail store specializing in lawn and garden outdoor power equipment. 3000sf of space in this 4925sf building will be used for retail sales with the balance used as storage. Variances are requested for the following: 1) to allow a reduction in required buffer between a local business district and a residential zone and 2) to allow a reduction in required number of parking spaces from 28 to 18.

Per Articles III, IV & V Sections 280-20, 280-21, 280-25 & 280-51 & 52 respectively

For property owned by under purchase agreement between Edward and June Bohl and Tim Alund

Situated as follows: 2339 Western Avenue Guilderland, NY 12084

Tax Map #39.00-4-9.4 Zoned: LB

Dated: January 29, 2007"

The file consists of the mailing list to 9 neighboring property owners, the completed forms for a special use permit along with a Short Environmental Assessment Form for this Unlisted Action, Albany County Planning Board's recommendation, The Town Planners comments, the Town Planning Board's site plan review, contract between the purchaser and the applicant, a narrative, a depiction along with plans showing the existing structure, and photos showing the dilapidated building on the site.

Albany County Planning Board's recommendation of 1-18-07 was modify local approval to include review by NYSDOT for design of highway access and assessment of road capacity.

The Town Planner had the following comments: "The applicant had requested a special use permit to convert the former Kunite pool store into a lawn and garden equipment shop. The proposal will substantially improve both the exterior and interior of the building and pave a parking area where there is now only dirt and gravel. The existing curbcut will remain and the proposal meets the parking requirements. I have the following comments:

- I am not sure why the gravel area to the west of the building is remaining. It would be preferable to convert this into additional green area. Also, landscaping in the green areas and around the building should be shown.

- The Guilderland Hamlet Plan calls for a consolidation of the parcels to the east of this site to share a common access. Should that ever be accomplished it would be preferable for this site to also tie in. There is nothing on this site plan that would prevent that in the future.

- A sidewalk would be required but would not make sense at this time. The applicant may be required to place money in escrow for the construction at a later time.

No objection to site plan approval."

The Town Planning Board's site plan review of 1-24-07 was as follows: Recommend with the following conditions - provision of a landscaping plan and drainage plan, consider moving access to adjoining 60' right-of-way and closing existing access to Rt. 20, and NYSDOT review and approval for any work in the highway right-of-way.

Tim Alund, applicant, presented updated site plans for the Board. Mr. Alund stated that they doubled the greenspace area.

Chairman Barber asked about the right-of-way.

Don Cropsey stated that he believed that it was part of the parcel to the rear, Mr. Serafini's property.

There was discussion regarding the consolidation of curbcuts.

Mr. Alund gave a brief overview of the project. Mr. Alund stated that they want to fix up the building and open a lawn and garden retail store. Mr. Alund stated that everything stays inside. A new parking lot would be installed and there would be a walkway around the building. Mr. Alund stated that they will not take tractor-trailer delivery into this location; everything is going to go through their Schaghticoke store and then will be brought down on a short trailer behind a pickup truck. Mr. Alund stated that way they can increase their green area so that mowers and such can get tried out.

Chairman Barber asked about a landscaping plan and a drainage plan.

Mr. Alund stated that they are still working on the landscaping plan. Mr. Alund stated that along the property line on the western side there was a swale and the previous tenant of the building had filled it in with garbage. Their plan is to clean it out and open it back out to alleviate any kind of drainage problems between the adjacent properties and their property.

There was discussion regarding the size of the curbcut.

Don Cropsey stated that the curbcut could be narrowed for what is required for a commercial driveway.

Chairman Barber asked if there were any questions or comments from the residents.

Don Knightes of Knightes Equipment on Rt. 158 stated that he was not sure that another power equipment dealer was needed in town. Mr. Knightes stated that it was a very busy location and stated that it would be difficult to get a trailer in there. Mr. Knightes asked if there had been soil testing done on site.

Chairman Barber replied that as far as whether another store is needed in town is not a Zoning Board issue, it is an economic and commercial issue. Chairman Barber stated that the soil testing was not their responsibility and the Zoning Board does not get involved in that. The Zoning Board will however, look at the traffic issue and will make sure that DOT signs off on the issue. Chairman Barber stated that this is a permitted use at this site.

Angelo Serafini gave a brief history of the adjacent property. Angelo stated that he has no objections to the variances because in the end he will be able to accomplish what he needs to and not affect the adjacent owners.

There was discussion regarding the buffer area.

Angelo stated that he had pointed out the drainage situation and he has agreed to correct the problem.

Chairman Barber asked if the runoff is affecting the neighboring properties.

Mr. Serafini replied that the water has no way out; the pipe has been plugged for some time.

Chairman Barber asked where the pipe leads to.

Mr. Serafini replied that the pipe goes to a storm drain in the front of the property along Western Avenue.

Chairman Barber asked if DOT should take care of this.

Mr. Serafini replied the pipe that is blocked is on private property. Mr. Serafini stated that knowing that the Town always wanted to have neighbors work together, he allowed two access points onto the right-of-way on the entire area over there and because Mr. Bohl owns about 6 acres he granted him two access points subject to town review. Angelo stated that the access points could be moved and stated that the mechanism is in place for what the Board is looking for.

Don Cropsey stated that the gentleman preparing a plan for the Guilderland Hamlet wants to coordinate development of Angelo's multi family property as commercial property and the balance of the Bohl property. They want to make all these properties have a common access to Rt. 20 and Angelo holds a key to maybe providing that common access over the right-of-way.

Chairman Barber asked if they could approve Tim Alunds application at this time.

Don Cropsey stated that the Board could approve this with a proviso that says in the future if this right-of-way becomes the main access point, consider providing access to this property through that.

Sharon Cupoli asked Don if he would also consider closing the curbcut off.

Don Cropsey replied that at the time that this becomes a main access point onto the highway, he would say yes because it makes no sense to have two curbcuts that close together.

Angelo Serafini stated that Tim Alund should get a copy of what Mr. Bohl and Angelo agreed to.

Chairman Barber asked Mr. Serafini if the agreement was filed with the Albany Co. Clerk's office.

Mr. Serafini stated that it was not and said that Mr. Bohl would have to release that agreement.

Mr. Serafini stated that they are not reserving any area in the rear of this particular parcel in the event the Master Planner wants something different.

Mr. Serafini stated that he is willing to work with the applicant and is encouraged that it is going to get developed.

Chairman Barber made a motion to continue this case for two weeks to allow the applicant to address some of the Board's concerns including the landscaping plan, the rendering and to take a look at the access points. Motion seconded by Sue Macri.

Vote 7 - 0.

MATTER OF STEWARTS - RT. 155 & MILL HILL COURT

Chuck Klaer read the legal notice:

Special Use Permit/Variance Request No. 3996

Request of Tom Lewis for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the construction of a 3012sf convenient store with gasoline sales on a 1.9 acre leased portion of an approved planned unit subdivision known as Mill Hill. A variance is requested from providing a 5' wide concrete sidewalk along State Rt. 155.

Per Articles III & V Sections 280-17 & 280-51 & 52 respectively

For property owned by Adobe Blue Chip, LLC

Situated as follows: southwest corner of State Rt. 155 and Mill Hill Court Guilderland, NY 12084

Tax Map #51.00-3-1.12 Zoned: PUD

Dated: January 30, 2007"

The file consists of the mailing list to 44 neighboring property owners, the Town's required forms for a special use permit/variance, a copy of the Town Board's minutes in which they issued a negative declaration under SEQRA for this Mill Hill PUD project which included Stewarts and in particular when they adopted Local Law #5 of 2006 they referred this matter to the Zoning Board of Appeals with particular attention given to the architectural review of the structure, a traffic impact statement, the Town Planners comments, Albany County Planning Board's recommendation of 1-18-07, a narrative provided by CT Male Associates with regards to the special use permit and a series of plans including landscaping and site plans.

The Town Planner had the following comments:

"The applicant is requesting a special use permit to construct and operate a Stewart's convenient store and gas pumps. The site is part of a revised Planned Unit Development application currently being reviewed by the Planning Board.

Staff has met numerous times with the applicant including an on site visit. Many of the initial Town concerns have been addressed and accommodated including a traffic signal, pedestrian amenities, and the building architecture. In addition, a TDE has reviewed the plans and reports for both this project and the entire PUD.

I am supportive of this plan but list the following items as areas that should be further reviewed to insure a compatible project:

- The lighting for the gas pumps should all be recessed and the general site lighting designed to eliminate a nuisance to neighbors.

- Foundation plantings appear to be planter boxes placed along the pedestrian access into the store. The Board should determine if these plantings are adequate and if they allow sufficient room for pedestrian movement.

- The fuel canopy architecture should compliment the store and be sufficient to screen the fire suppression equipment.

- Mill Hill Court will remain a private road and an agreement for shared access and maintenance should be submitted.

No planning objections contingent on the above concerns being adequately addressed."

Albany County Planning Board's recommendation of January 18, 2007 was: Modify local approval to include: 1) Review by the NYSDEC to determine potential jurisdiction under bulk petroleum storage regulations, 2) Submission of a copy of the Notice of Intent filed with the NYSDEC affirming that a Stormwater Pollution Prevention Plan has been prepared is being implemented or submission of a Stormwater Pollution Prevention Plan that is consistent with the requirements included in the NYSDEC SPDES General Permit for Stormwater Discharges (GP-02-01, January 2003) for construction activities that disturb more than one acre of land, 3) Review by the ACDOH for water supply, wastewater discharge and other required permits, and; 4) Review by the Albany County Department of Health for a food service and other required permits."

Theresa Bakner, attorney with Whiteman, Osterman and Hanna presented the case on behalf of Adobe Blue, the property owners and also on behalf of Tom Lewis from Stewarts, along with Skip Francis from CT Male Associates. Ms. Bakner gave a description of the overall project. Ms. Bakner stated that back in 1993 there was a Local Law adopted by the Town Board authorizing the establishment of a PUD at this location. There were 5 lots, Phase I, II, III, IV and the 5^th lot was Mill Hill Court. Mill Hill Court is privately owned by Adobe Blue Brick. The first phase of the development is the only phase that was actually built and it comprises the existing adult care facility. The other three phases were never built. The only two phases that Adobe Blue Brick brought back before the Town Board were Phases II and III. Originally the project was much denser and because of the change in the type of housing market Adobe Blue Brick thought that a couple of revisions to the 1993 PUD approval should be made. Those changes included changing the age limit and reducing the density of the project and increasing the greenspace. The layout of the project was also changed so that it more suited the types of housing today and so that the Stewarts could be placed here. Ms. Bakner stated that because of the increased traffic generated by the Stewarts, they are able to place with DOT's permission a traffic signal at the intersection of Rt. 155 and Dr. Shaw Road as well as Mill Hill Ct. NYSDOT has reviewed the work done by Creighton Manning Engineering and has approved the traffic analysis and the warrants for a traffic signal. The use of a Stewarts may also help cut down on trips to other sections of the town thereby improving traffic. Ms. Bakner read Local Law #5 of 2006 dealing with this PUD.

Chairman Barber wondered why the Zoning Board was not included during SEQRA review.

Chairman Barber stated that the Zoning Board is dealing with this as a special use permit and they were asked by the Town Board to look at the architectural aspects. Chairman Barber stated that a lot of time has been spent with Town staff and that this is the tail end of the process. Chairman Barber asked Ms. Bakner if there were any areas of disagreement that they may have with Town staff.

Ms. Bakner stated that she believed that all of the issues have been addressed.

Chairman Barber asked about lighting and landscaping.

Skip Francis of CT Male replied that they have added several landscaped features to improve the aesthetics of the site as well changing the exterior architecture. Mr. Francis discussed how the condominiums would look. Mr. Francis stated that there are mature trees at the northeast corner of the parcel which will remain but will remove some of the pine trees to open the area up. Some of these trees will be relocated. Mr. Francis stated that none of the large pine trees along Rt. 155 north of Mill Hill Court would be removed, those would remain. Mr. Francis stated that the canopy lighting would be direct down lighting or recessed lighting and will minimize a lot of the glare and the relocation of some of the trees would help minimize the glare also.

Chairman Barber asked the height of the canopy.

Mr. Francis replied that the height is approximately 17.5' to the top and 14.5' to the bottom clearance.

Tom Lewis of Stewarts stated that this Stewarts was very unique due to the architecture, the fact that there is no curb cut on Rt. 155, the lavish landscaping and the signage is minimal.

Don Cropsey stated that they had a concern with the lavish landscaping; what plant species to place along the building.

Chairman Barber asked what the canopy is made out of.

Don Cropsey stated that it would be very similar to the Cumberland Farms canopy, kind of an extruded aluminum with trim. Don stated his other concern was the amount of lighting under the canopy; he thinks that there may be too much lighting.

Tom Lewis stated that this would be the least light impact canopy in town.

Chuck Klaer suggested that the support from the canopy be a darker color; non-reflective.

Mr. Lewis stated that if it can be done, it will be done.

Chuck Klaer asked how many booths would be in the Stewarts.

Mr. Lewis replied that all of their shops have three slightly undersized booths.

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 Sharon Cupoli.

Chairman Barber stated that the Zoning Board does not need to make a SEQRA motion on this because there already was one for the PUD.

Chairman Barber made a motion for approval of:

Special Use Permit/Variance Request No. 3996

Per Articles III & V Sections 280-17 & 280-51 & 52 respectively

For property owned by Adobe Blue Chip, LLC

Situated as follows: southwest corner of State Rt. 155 and Mill Hill Court Guilderland, NY 12084

Tax Map #51.00-3-1.12 Zoned: PUD

In rendering this decision, the Board makes the following findings of fact:

1. A public hearing was duly noticed and held this evening and that no residents provided either written or oral comments regarding the application.

2. The Town Board already issued a negative declaration on July 11, 2006 under SEQRA when it adopted the local law for this PUD.

3. Albany County Planning Board provided us with a recommendation on January 18, 2007 and the Town Planning Board's review is under the PUD law and therefore they did not provide us with any site plan review for this application.

4. The Town Planner's comments were considered by the Board this evening.

5. The Board further finds that this is PUD was approved by the Town Board under Local Law #5 of 2006. The PUD encouraged the mixed use and envisioned the commercial use proposed here this evening and in fact referred to this Board for a special use permit review the proposed Stewarts application with an emphasis at looking at the architectural aspects.

6. The Board received extensive comments from staff regarding the work that the applicant has done to work with the Town and bring about a very attractively designed structure.

7. The classical architecture is consistent with the proposed architecture for the main structures in the rear.

8. The applicant has agreed to maintain the mature trees on site to the extent possible and also has proposed recessed lighting to reduce any impacts.

9. The parking is deemed to be adequate and no variance is requested.

10. As part of the SEQRA process the Town Board reviewed the traffic impact analysis and found that the proposal was appropriate in terms of traffic impacts.

11. The Board grants the sidewalk variance upon the ground that the sidewalk would have no terminus and it is highly unlikely that there will ever be a sidewalk to the south.

12. The site plan provides adequate pedestrian access and movement within the site.

In granting this decision, the Board imposes the following conditions:

1. Adherence to the plans submitted (as amended).

2. Hours of operation will be from 5am to 12am seven days a week.

3. 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.

4. Adherence to the landscaping plan; work with the Zoning Administrator to field locate trees for shielding canopy lighting.

5. Fire Department review and approval.

6. Town review and approval of an agreement for shared access and maintenance of Mill Hill Court.

7. No signs or banners shall be allowed without Board approval.

8. As required by Albany County Planning Board, DEC review to determine potential jurisdiction under bulk petroleum storage regulations, submission of a SPEDES general permit, and review by the ACDOH for water supply, wastewater discharge and review by ACDOH for a food service permit.

9. Any lighting impacts to be reviewed by Don Cropsey on site.

10. Support beams for canopies shall be non-reflective.

11. Subject to final site plan review and approval by Planning Board of the overall PUD including both site and direct pedestrian connections.

The Zoning Administrator is authorized to issue any permits necessary to implement this decision.

If this Variance/Special Use Permit is not exercised within 18 months of its issuance, it is hereby declared to be null and void and revoked in its entirety.

Motion seconded by Sharon Cupoli. Vote 7 - 0.

The Board approved two signs for Musicland at 1736A Western Avenue, one 5sf panel change and one 14sf building mounted sign. Vote 7 - 0

The Board approved two signs for Stewarts at Rt. 155 & Mill Hill Court, one 40sf permanent freestanding identification sign and one 10sf building mounted sign. Vote 7 - 0.

The Board approved a 36sf free standing Mill Hill community sign. Vote 7 - 0

The Board approved a permanent 50sf freestanding identification sign for Poiema Salon & Spa at 2093 Western Avenue. Landscaping shall be installed at base of sign. Vote 7 - 0.

The meeting adjourned at 11:00pm.