TOWN OF GUILDERLAND
ZONING BOARD OF APPEALS
JUNE 4, 2008
Members Present
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Peter Barber, Chairman Charles Cahill, Alternate Sharon Cupoli Susan Macri Allen Maikels Mike Marcantonio Tom Remmert James Sumner Robert Feller, Counsel
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Chairman Barber opened the meeting and pointed out the emergency exits in the event they were needed.
CONTINUED CASES:
MATTER OF DOMINICK SCALISE – 1436 WESTERN AVENUE
Chairman Barber stated that this is a continued case so the Town Planning Board could conduct their site plan review. The Town Planning Board did recommend approval with the following conditions: the required parking spaces be identified on the plans and striped and also landscaping plan be provided. Chairman Barber stated that the Board also wanted to find out what the applicant is planning to do is consistent with the prior nonconforming use and to determine whether that use might have been abandoned at some point.
Chairman Barber stated that there were two documents found in previous folders: one was a special use permit issued in 1976 for Germanos gas station which allowed for the use of two bays to be added to an existing two bay service station and 21 years later there was a use variance which allowed a second automotive repair facility by using the two existing vacant repair bays.
Chairman Barber asked Don Cropsey if he knew if the property had ever been abandoned.
Don Cropsey replied that as far as he knows the use has not been abandoned on the property; the definition requires that there be an intention to give up the right to use it as such. Don stated that the owners have continuously tried to market the property for similar uses that had been in place there and stated that the only thing that has been abandoned is the use of the property as a gasoline filling station.
Chairman Barber stated that Don Reeb, president of the McKownville Improvement Association, also stated that the owners had tried to market the property over the years.
Chairman Barber asked about the gravel parking lot and if it was going to be paved.
Don Cropsey stated that he thought the intention was to pave it.
There was discussion regarding parking on the site.
Chairman Barber asked about the sidewalk.
Don Cropsey replied that typically when there is a driveway that enters the property the Town has allowed that area to be striped.
Chairman Barber stated that the use variance request back in 1997 also had a variance request for the sidewalk.
Counsel Feller asked about all of the bays being used.
Don Cropsey replied that in 1976 the building consisted of a gasoline station, a little office and two bays and at that time a special use permit was granted for two additional bays at the south side of the building which are the two bays that are being used by Anthony Germano who received in 1997 a use variance to utilize those bays.
Counsel Feller asked about retail sales.
Don Cropsey replied that there have been retails sales there; an auto parts sales shop used to be in the building.
Mr. Scalise stated that there would be no over the counter sales, it would be on an order basis only.
Counsel Feller stated that the Board needed to determine whether this was a change in use of the nonconforming use.
Chairman Barber stated that he looked at the square footage, how much is being used and this is not going beyond which has been used historically. Chairman Barber stated that he also looked at the hours requested by the applicant, which are less than the previous use. In granting the use variance there were a number of requests made and granted and none of those conditions are being exceeded by this proposed use so he stated that he is comfortable with the idea that it is not an expansion of a nonconforming use.
Counsel Feller replied that the Board has to judge whether this particular operation presents a change or alteration in the nonconforming use.
Chairman Barber asked if there were any questions or comments from the residents.
Tom Zelkowski, realtor, stated that the type of service that Mr. Scalise is providing is essentially the same as a repair shop; you have to order parts and then they install the parts.
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 a careful review under SEQRA regarding the application of Dominick Scalise to operate a 900sf+/- of space consisting of two garage bays and a small office for an after market vehicle shop. Our review consisted of the comments provided to us by the Albany County Planning Board, the Town Planning Board, the Town Planner and a review of the application and the prior special use permit and variance granted for this property. Based upon that review and the comments provided at the public hearing, I move that a negative declaration under SEQRA should be issued." Motion seconded by Sharon Cupoli. Vote 7 – 0.
Chairman Barber made a motion for approval of:
Special Use Permit/Variance Request No. 4084
Request of Dominick Scalise for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the use of 900+/-sf of space in an existing non-conforming auto repair garage. Two garage bays and a small office will be utilized. Former tenants include a gasoline depot, auto parts sales and auto glass replacement. Parking and landscaping to be determined by the Board.
Per Articles IV & V Sections 280-31 & 280-51& 52 respectively
For property owned by Anthony Caccamo
Situated as follows: 1436 Western Avenue Albany, NY 12203
Tax Map # 52.20-4-7 Zoned: BNRP
This decision is granted upon the following findings of fact:
A public hearing was duly noticed and supplemented by mailing legal notices to properties within 750' of said property. One resident appeared at the prior public hearing in support of the application.
This Board adopted a negative declaration under SEQRA for this Unlisted Action by a unanimous vote.
Albany County Planning Board's notification was to defer to local consideration.
The Town Planning Board's site plan review was to identify the parking both in terms of stripes and paved and submission of a landscaping plan.
The Town Planners comments of May 14, 2008 was to recommend approval with some questions regarding the accuracy of parking on site.
The issue before the Board previously was whether or not this proposed use was a continuation of the prior nonconforming use and the extent to which that continuation may be an expansion and whether or not that prior nonconforming use was abandoned. Abandonment is defined in the code as follows: "The voluntary, absolute relinquishment and/or giving up of a known right to which one is entitled, with the intention of permanently terminating or parting with such right. Abandonment depends upon the concurrence of two elements of factors:
A. The intention to relinquish and permanently give up a known right to continue a nonconforming use; and
B. The cessation of such nonconforming use, and overt act or failure to act, implying that the owner intends to permanently cease from putting the premises to the nonconforming use, or such other nonconforming use as may be permitted by this chapter. Whenever a nonconforming use of a structure has been discontinued for a period of one year, such discontinuance shall constitute prima facie evidence that such use has been abandoned."
The Board has also reviewed the prior special use permit of May 21, 1976 in which the Board granted a special use permit to allow the use of two existing bays to be added to an existing two bay service station. In March of 1997 the Board granted a use variance which allowed the use of a second automotive repair facility by using the two then vacant repair bays. The Zoning Administrator has advised the Board that he has found that there is no evidence of intent to abandon based upon the marketing of the property over the years. The Board further notes that Mr. Reeb has also noted that the property has been on the market and have been efforts to secure tenants for quite some time. The Board concurs with the Zoning Administrator that the use has not been abandoned.
Based upon the comparison of the conditions of the conditions set forth in both the special use permit and the use variance, which again set forth specific conditions including hours of operation, etc, that the proposed use for installing after market automotive products is consistent and not an expansion or change or alteration with the prior use and therefore does not require any additional findings regarding expansion by more than 5%.
In granting this decision, the Board imposes the following conditions:
Adherence to the plans as submitted.
The hours of operation are as set forth in the application, by appointment only, Monday – Friday from 9am to 6pm, Saturday from 10 am to 2pm with no Sunday hours.
As requested by the Town Planning Board, submission of a professional landscaping plan for review and approval.
The gravel parking lot shall be brought up to Town's standards which would include paving and striping of spaces.
There shall be no overnight parking of vehicles.
Delineation of the safe pedestrian passageway that connects with the sidewalk.
Any sign will require the approval of the Zoning Board of Appeals. The replacement of the existing freestanding sign would greatly improve the appearance of the site.
The applicant has agreed that there will not be any over the counter sales of products at the site.
There will be no oil changes, tune-ups, or fluid changes of any type as stated in the application.
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.
MATTER OF PAUL GLEASMAN – 2925 WEST OLD STATE ROAD
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. 4086
Request of Paul Gleasman for a Variance of the regulations under the Zoning Law to permit: the construction of an uncovered deck beyond a required 25' rear yard setback. 25' is required, 15' is provided, a 10' variance is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Paul Gleasman
Situated as follows: 2925 West Old State Road Schenectady, NY 12303
Tax Map # 27.18-1-12.3 Zoned: R15
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 4th of June, 2008 at the Guilderland Town Hall beginning at 7:30pm.
Dated: May 28, 2008"
The file consists of the mailing list to 30 neighboring property owners, the Town's required forms for an area variance, a brief narrative, a sketch of the location of the deck on the property and the Town Planners comments.
The Town Planner had the following comments: "The applicant has requested an area variance to build a deck that will extent 8' into the rear yard setback on this irregularly shaped lot. No planning objections."
Paul Gleasman, applicant, presented the case.
Chairman Barber stated that this an uncovered deck facing vacant land to the right and this lot is pretty triangular shaped. Chairman Barber stated that because it is an uncovered deck the setback is 25' instead of 35'.
Mr. Gleasman stated that he has a deck now but it is just not big enough.
Chairman Barber asked if he plans for any lighting on the deck.
Mr. Gleasman replied that he does not.
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. 4086
Request of Paul Gleasman for a Variance of the regulations under the Zoning Law to permit: the construction of an uncovered deck beyond a required 25' rear yard setback. 25' is required, 15' is provided, a 10' variance is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Paul Gleasman
Situated as follows: 2925 West Old State Road Schenectady, NY 12303
Tax Map # 27.18-1-12.3 Zoned: R15
This decision is based upon the following findings of fact:
A public hearing was duly noticed and held this evening. No comments were provided by the residents; either written or oral.
This is a Type II Action under SEQRA, not requiring SEQRA review.
The Town Planner had no objections to the request.
The Board further finds that the lot is an irregularly shaped lot. The proposed deck is uncovered and only extends partially into the setback.
The proposed currently faces vacant farmland.
Under these circumstances, the Board finds that the variance is not substantial and will not adversely impact neighboring property owners.
In granting this decision, the Board imposes the following conditions:
Adherence to the plans as submitted.
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 Al Maikels. Vote 7 – 0.
MATTER OF JENNIFER AND P. GAVIN HOGAN – 1 WESTLYN COURT
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. 4088
Request of Jennifer and P. Gavin Hogan for a Variance of the regulations under the Zoning Law to permit: a single-story addition to the front of an existing dwelling within a required front yard. A 35' front yard setback is required, 28' is provided, a 7' variance is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Jennifer and P. Gavin Hogan
Situated as follows: 1 Westlyn Court Albany, NY 12203
Tax Map # 52.20-4-39 Zoned: R10
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 4th of June, 2008 at the Guilderland Town Hall beginning at 7:30pm.
Dated: May 28, 2008"
The file consists of the mailing list to 55 neighboring property owners, the Town's required forms for an area variance, the Town Planners comments, a narrative, a letter dated June 3, 2008 from Richard Esmay of 1424 Western Avenue stating they have no problem with the variance application, the site plan and some schematics that show the current floor plan and the proposed floor plan.
The Town Planner had the following comments: "The applicant is requesting an area variance to build an addition that will encroach into the front yard setback. No planning objections."
Jennifer and Patrick Gavin Hogan presented the request.
Chairman Barber stated that the road is very curved.
Jennifer Hogan stated that the house is quite far back off the road.
Chairman Barber stated that this seems fairly consistent with other properties in the area.
Chairman Barber asked if this would be a dining room addition.
Jennifer Hogan replied that it would be a new front stoop, a new front hall and a new formal dining room.
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. 4088
Request of Jennifer and P. Gavin Hogan for a Variance of the regulations under the Zoning Law to permit: a single-story addition to the front of an existing dwelling within a required front yard. A 35' front yard setback is required, 28' is provided, a 7' variance is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Jennifer and P. Gavin Hogan
Situated as follows: 1 Westlyn Court Albany, NY 12203
Tax Map # 52.20-4-39 Zoned: R10
This decision is granted upon the following findings of fact:
A public hearing was duly noticed and held this evening. The Board did receive a letter from Dr. Esmay of 1424 Western Avenue stating he had no objections to the request.
This is a Type II Action under SEQRA, not requiring SEQRA review.
The Town Planner had no objections to the granting of this request.
The Board further notes that the lot is located on a curve which causes a varied right of way and as a result the house is set back quite a distance from Westlyn Court.
The proposed addition will be made of brick and a shingled gable which matches and will blend in nicely with the existing structure.
The applicant is proposing to also install landscaping which will further mitigate any impacts from the proposed addition.
In granting this decision, the Board imposes the following conditions:
Adherence to the plans as submitted.
The construction hours shall be limited to the following: Monday – Friday from 7am to 6pm, Saturday from 9am to 5pm with no construction on Sunday.
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 Sue Macri. Vote 7 – 0.
MATTER OF BRIAN CLARK – 2093 WESTERN AVENUE
Allen Maikels 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:
Amend Special Use Permit #09-07/Request No. 4087
Request of Brian Clark for an amendment to Special Use Permit #09-07 under the Zoning Law to: modify approved hours of operation to provide for full day operation during school breaks. Proposed hours of operation will be Monday – Saturday from 8am to 9pm.
Per Articles III & V Sections 280-21 & 280-52 respectively
For property under lease agreement between Yelnah, LLC and Robert Rice and Brian Clark
Situated as follows: 2093 Western Avenue Guilderland, NY 12084
Tax Map # 51.02-1-17 Zoned: BNRP
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 4th of June, 2008 at the Guilderland Town Hall beginning at 7:30pm.
Dated: May 28, 2008"
The file consists of the mailing list to 16 neighboring property owners, the Town's required forms to amend this special use permit, the Short Environmental Assessment Form for this Unlisted Action, Albany County Planning Board's recommendation, the Town Planners comments, the lease agreement, a narrative, the previous special use permit, and a letter dated June 5, 2008 from the property owner raising concerns and stating that they are opposed to the request.
Albany County Planning Board's recommendation was to defer to local consideration.
The Town Planner had the following comments: "The applicant is requesting an amendment to his special use permit to allow for additional hours at this martial arts studio. No planning objections."
Brian Clark, applicant, presented the case.
Counsel Barber stated that he understood that he wanted to add hours for full day camp during school breaks.
Mr. Clark stated that was part of the original application but it was not listed on the special use permit. Mr. Clark stated the original application included running summer camps.
Chairman Barber replied that it did state summer camps, but did not state any hours.
Chairman Barber asked what the situation was with the landlord. Chairman Barber stated that this is the first time there has been a situation where a tenant came in requesting permission but the landlord says no and it raises a legal issue about what role the landlord has when they own the property.
Mr. Clark stated that this was their plan from day one, the landlord was aware of their plan. Mr. Clark stated the extended hours would just be during school breaks.
Chairman Barber asked about the pending matter in town court.
Mr. Clark replied that it was an eviction matter.
Chairman Barber asked if there were any questions or comments from the residents.
Jennifer and Steve McClaine, owners of 2093 Western Avenue stated that the problem they have is that it was never stated that the extended hours would be all summer long, every day and every holiday break. Ms. McClaine stated that the noise level has risen considerably in the last year. Ms. McClaine stated that she would never have been in favor of this if she knew it was going to be every day, from 8am to 4pm. Ms. McClaine stated that on three separate occasions there have been children dropped off and left when no classes were going on or when no staff was present. Ms. McClaine stated that they have been running this for the past year.
Chairman Barber asked if they had signed a lease with the applicant.
Ms. McClaine stated that it was a sub-lease, Mike Caruso had allowed them to do that.
Chairman Barber stated that this was a legal issue; whether or not a tenant can make an application to amend a special use permit without the landlords consent.
Ms. McClaine stated that Mr. Clark had been operating their business illegally for the last 15 months.
Counsel Feller stated the question really is whether the owner's consent is needed.
Chairman Barber asked the applicant if they are currently operating under the hours that they are seeking.
Mr. Clark replied not currently, it is just after school that they conduct classes.
Jennifer McClaine stated that the initial application did not state any hours for the camp.
Chairman Barber asked if the daytime use has created parking problems.
Ms. McClaine replied that it is not a parking issue; it is more of a noise and safety issue.
Chairman Barber asked what the status of the court case was.
Ms. McClaine replied that they have to go back to court.
Mr. Clark stated that they are being evicted because they are operating outside of their hours.
There was discussion regarding a sound barrier to help with the noise.
Chairman Barber made a motion to continue the case for two weeks for Counsel to review. Motion seconded by Sharon Cupoli. Vote 7 – 0.
MATTER OF RONALD LONGWELL – 6606 RT. 158
Chairman Barber 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:
Special Use Permit/Variance Request No. 4085
Request of Ronald Longwell for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the operation of a customary home occupation 2 on a 3.89 acre parcel of land. A 5 acre parcel is required; 3.89 acres is provided, a variance of 1.1 acres is requested.
Per Articles III & V Sections 280-24.1 & 280-51& 52 respectively
For property owned by Ronald Longwell
Situated as follows: 6606 Rt. 158 Altamont, NY 12009
Tax Map # 38.00-3-2 Zoned: RA3
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 4th of June, 2008 at the Guilderland Town Hall beginning at 7:30pm.
Dated: May 28, 2008"
The file consists of the mailing list to 19 neighboring property owners, the Town's required forms for a special use permit and variance, a Short Environmental Assessment Form for this Unlisted Action, Albany County Planning Board's recommendation of 5-15-08, the Town Planners comments, a narrative and a letter from Brian Batile of 6580 Rt. 158 raising his concerns regarding the impact upon the character of the neighborhood.
Albany County Planning Board's recommendation of 5-15-08 was to defer to local consideration.
The Town Planner had the following comments: "The applicant is requesting a special use permit for a home occupation 2 and an area variance to store construction vehicles on the site. The applicant states that employees come to the site to pick up vehicles, equipment and supplies and then drive to the job site which entails the installation of swimming pools.
I would question whether the storage of sand and patio block along with a dump truck and skid steer should be considered a home occupation. First because the occupation or profession is not being carried out on the site, and secondly, because it generates traffic beyond that normally expected in a residential neighborhood – both with the employees leaving with the materials and also the delivery of dump trucks of sand. Further, the open storage of construction materials is not in keeping with maintaining the residential/rural quality of the zoning district. Also, the applicant does not have the required 5 acre minimum to conduct a home occupation 2.
Should the Board determine that this use is in conformance with the customary home occupation 2 regulations, I would suggest that a plan be submitted that would effectively screen this operation from the roadway and any adjacent neighbors."
Chairman Barber asked if this case had gone before the Town Planning Board.
Don Cropsey replied that he did not think it had gone before the Town Planning Board.
Ronald Longwell, applicant, presented the case. Mr. Longwell stated that he is a subcontractor; he installs above ground swimming pools for a local pool company. Mr. Longwell stated that he owns a dump truck that the business leases from him which also tows a skid steer on it. Mr. Longwell stated that he has two employees that come to the house in the morning; they get in the vehicles and go to the job site, do their job and at the end of the day they come back to his house and park the vehicles and spend 15 minutes loading sand and mason block into the dump truck for the following day. Mr. Longwell submitted a petition from his neighbors stating they had no problem with the application.
Chairman Barber asked Mr. Longwell what his hours of operation were.
Mr. Longwell replied his employees are at his house by 7am; they usually leave five minutes later and would get back to his house anytime from noon to 7pm.
Chairman Barber asked if there would be any need to go back to his residence during the day to pick up any materials.
Mr. Longwell replied that they only come back at the end of the day.
Chairman Barber asked about the patio block.
Mr. Longwell stated that he keeps a few pallets behind the barn out of view and they hand load it into the dump truck.
Chairman Barber asked how often he would get patio block delivered to his home.
Mr. Longwell replied only once a season.
Chairman Barber asked if this property was subdivided.
Mr. Longewll replied that the gentleman that did own it before him did subdivide it.
Chairman Barber stated that a customary home occupation 2 is different than a customary home occupation 1. A customary home occupation 2 has certain requirements; one of them is a 5 acre requirement. Chairman Barber questioned that because this is set forth in the definitions if it is a requirement that would have to be met.
Chairman Barber asked Mr. Longwell if he thought that he complied with the requirement that a customary home occupation 2 shall be carried on in the principal dwelling unit or an accessory structure or elsewhere on the property.
Mr. Longwell replied he just stores his materials and parks his vehicles on his property; he has no customers coming to the house or no sales done on the premises.
Chairman Barber reviewed the conditions for a customary home occupation 2. Chairman Barber asked Mr. Longwell where his vehicles were parked on his property.
Mr. Longwell replied that they are parked beyond his barn.
Counsel Feller asked how long he had been conducting this business on the property.
Mr. Longwell stated that his business started in early April of 2008.
Chairman Barber asked if there were any questions or comments from the residents.
Roger Carr of 6588 Rt. 158 stated that since the Longwells have moved into the house, the property has been cleaned up, parks his vehicle in the back of the property and stated that he had no complaints regarding his business.
Allan Ditton of 6572 Rt. 158 stated that his only concern is any kind of dumping on the property.
Sue Green of 6655 Rt. 158 had concerns regarding the traffic coming out of Mr. Longwells property because of the curve in the road. Ms. Green stated that she was not opposed to the application, she just had concerns regarding the traffic and stated that the property was very well maintained.
Don Cropsey felt that the storage area for the sand should be screened, possibly with landscaping.
Mr. Longwell replied that he would be willing to do whatever is recommended.
Chairman Barber stated that he would like Counsel Feller to confirm that this is an area variance and not a use variance and also have the applicant appear before the Town Planning Board.
Chairman Barber made a motion to continue the hearing to July 2, 2008. Motion seconded by Sharon Cupoli. Vote 7 – 0.
OTHER:
The Board approved the minutes of 4-16-08. Vote 6 – 0.
SIGNS:
The Board approved a 23sf building mounted sign for the Melting Pot at Crossgates Mall. Vote 7 – 0.
The Board continued a temporary sign request from Jiffy Lube at 2067 Western Avenue. Vote 7 – 0.
The meeting adjourned at 9:25pm.
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