Town of Guilderland, NY - Zoning Board Minutes

Zoning Board Minutes - 04-16-2008

TOWN OF GUILDERLAND

ZONING BOARD OF APPEALS

APRIL 16, 2008

Members Present

Peter Barber, Chairman

Charles Cahill, Alternate

Sharon Cupoli

Susan Macri

Allen Maikels

Tom Remmert

James Sumner

Linda Clark, Counsel

Members Absent: Mike Marcantonio

_____________________________________________________________________

Chairman Barber opened the meeting and pointed out the emergency exits in the event they were needed.

NEW CASES:

MATTER OF DANIEL TARULLO – 9 WOODRIDGE 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. 4074

Request of Daniel Tarullo for a Variance of the regulations under the Zoning Law to permit: the construction of a 36' x 8' covered front porch in a required front yard. A 35' front yard setback is required; 29' is proposed, a 6' variance is requested.

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

For property owned by: Daniel Tarullo

Situated as follows: 9 Woodridge Court Albany, NY 12203

Tax Map #52.10-2-25 Zoned: R15

Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 16th of April, 2008 at the Guilderland Town Hall beginning at 7:30pm.

Dated: April 8, 2008"

The file consists of the mailing list to 23 neighboring property owners, the Town's required forms for an area variance, the Town Planner's comments, a narrative, a plot plan and a schematic diagram of the proposed porch.

The Town Planner had the following comments: "The applicant is requesting an area variance to construct a porch that will encroach 6' into the front yard setback. No planning objections."

Daniel Tarullo, applicant, presented the case.

Chairman Barber stated that is a small porch and he does seem to be minimizing the variance as much as possible.

Chairman Barber stated that there are other properties in the neighborhood that have porches in the front of their property.

Mr. Tarullo stated that he thinks that there are about 7 of the 9 houses with front porches on them.

Chairman Barber stated that he is located on a cul-de-sac so there is not the problem of one of the houses being in front of another with sight line problems.

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. (Marcantonio absent, Cahill alternate)

Chairman Barber made a motion for approval of:

Variance Request No. 4074

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

For property owned by: Daniel Tarullo

Situated as follows: 9 Woodridge Court Albany, NY 12203

Tax Map #52.10-2-25 Zoned: R15

The Board makes the following findings of fact:

A public hearing was duly noticed and supplemented by mailings to neighbors within 500' of said 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 request.

The Board further finds that the variance will allow the construction of a front porch which is partially beyond the setback but also partially within the setback by as much as six feet.

The property is located on a cul-de-sac where other properties have similarly situated and similarly sized porches.

The porch is attractively designed and will not cause an undesirable change or negative impact upon the neighborhood.

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

Adherence to the plans as submitted.

Construction hours are limited to the following: Monday – Friday from 7am to 6pm, Saturday from 9am to 5pm with no construction allowed 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 6 – 0. (Marcantonio absent, Remmert abstained, Cahill alternate)

MATTER OF PATRICK CHIP – 1728 WESTERN AVENUE

Tom Remmert read the legal notice:

Special Use Permit Request No. 4076

Request of Patrick Chip for a Special Use Permit under the Zoning Law to permit: the conversion of an existing beauty salon to a hearing and audiology clinic. All site characteristics including parking variances have been previously reviewed and approved by the Board.

Per Articles III & V Sections 280-19 & 280-52 respectively

For property under purchase agreement between Western Avenue, LLC and Jordan Brooks Partners, Inc.

Situated as follows: 1728 Western Avenue Albany, NY 12203

Tax Map #52.13-2-7 Zoned: BNRP

Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 16th of April, 2008 at the Guilderland Town Hall beginning at 7:30pm.

Dated: April 8, 2008"

The file consists of the mailing list to 47 neighboring property owners, the Town's required forms for a Special Use Permit along with a Short Environmental Assessment Form for an Unlisted Action, the Albany County Planning Board's notification of 3-20-08, the Town Planning Board's site plan review of 4-9-08, the Town Planners comments, a letter from the owner of Concord Pools in favor of the project but noting a concern that they in no way alter the area between the tanning salon and 1720 Western Avenue, and a description of the proposed use along with a site plan which depicts the location of the property.

Albany County Planning Board's notification of 3-20-08 was to defer to local consideration and noting that any changes to the curbcuts would require DOT approval.

The Town Planning Board's site plan review of 4/9/08 was to recommend without any conditions.

The Town Planner had the following comments: "The applicant has requested a special use permit to operate a hearing and audiology office from the existing commercial building. The property is a residential structure, with a parking lot in the rear graded down to Western Avenue, which has been used as a hair salon. No site changes are proposed and it is anticipated that traffic generation will be significantly less with this new use. No planning objections."

Chris Smith, coworker of Patrick Chip, presented the case. Mr. Smith stated that there would be a definite decrease in the traffic; there would be only two employees and probably a total of one customer an hour. There may be 5 to 6 customers the entire day.

Chairman Barber asked about the concern by Concord Pools.

Mr. Smith replied that there is a shared driveway between the two buildings but they also have a driveway on the other side of the building and they had no plans on doing anything different with the shared driveway.

Chairman Barber asked what the hours of operation would be.

Mr. Smith replied that it would be 9am to 5pm Monday through Friday only; no night or weekend hours.

Jim Sumner asked about the shared parking agreement that was mentioned in the previous special use permit.

Chairman Barber replied that this does not require a parking variance so there is adequate parking on site.

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

"This Board has conducted a careful review of this application to determine whether the granting of this special use permit at 1728 Western Avenue would have a significant negative impact upon the environment. This review consisted of the comments provided by the Albany County Planning Board, the Town Planning Board and the Town Planner. Based upon this review, the review of the application and the public hearing this evening I move that a negative declaration under SEQRA should be issued." Motion seconded by Sharon Cupoli. Vote 7 – 0. (Marcantonio absent, Cahill alternate)

Chairman Barber made a motion for approval of:

Special Use Permit Request No. 4076

Per Articles III & V Sections 280-19 & 280-52 respectively

For property under purchase agreement between Western Avenue, LLC and Jordan Brooks Partners, Inc.

Situated as follows: 1728 Western Avenue Albany, NY 12203

Tax Map #52.13-2-7 Zoned: BNRP

This decision is based upon the following findings of fact:

A public hearing was duly noticed and held this evening and supplemented by mailing legal notices to properties within 750' of said property. One resident provided written comments stating they had no objections to the request.

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

The Albany County Planning Board deferred to local consideration.

The Town Planning Board recommended with no suggestions or conditions.

The Town Planner had no objections to the granting of the request.

The Board further finds that the proposed use is an allowed use in a BNRP zone.

The proposed use will generate less traffic than the current use as a hair salon.

All other site conditions have been previously reviewed and approved by the Board when they granted the prior special use permit.

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

Adherence to the plans as submitted.

Hours of operation shall be from 9am to 5pm Monday – Friday with no weekend hours.

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. (Marcantonio absent, Cahill alternate)

MATTER OF LAWRENCE DINOVO – 3064 SPAWN ROAD

Sue Macri read the legal notice:

Special Use Permit/Variance Request No. 4075

Request of Lawrence DiNovo for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the conversion of a portion of an existing single-family home (340sf) to an in-law apartment. A variance of the law requiring occupants of the apartment to be related to the owners of the home by blood, adoption or marriage for a temporary period of time is required.

Per Articles III & V Sections 280-14 & 280-51 & 52 respectively

For property owned by: Lawrence DiNovo

Situated as follows: 3064 Spawn Road Schenectady, NY 12303

Tax Map #27.15-2-7.2 Zoned: RO30

Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 16th of April, 2008 at the Guilderland Town Hall beginning at 7:30pm.

Dated: April 8, 2008"

The file consists of the mailing list to 38 neighboring property owners, the Town's required forms for a Special Use Permit, a Short Environmental Assessment Form for this Unlisted Action, the Town Planning Board site plan review, the Town Planner's comments, a narrative and some site plans and drawings of the property.

The Town Planning Board's site plan review of 4-9-08 reads as follows: "Recommend with the following condition: applicant be required to comply with Town's requirement that the apartment be occupied by family members."

The Town Planner had the following comments: "The applicant has requested a special use permit for an in-law apartment. The house sits back a distance from the road and has a two-car garage and ample space in the driveway for parking. It has come to the Town's attention that the second unit in the structure may have been illegally constructed without benefit of a building permit, that it is being rented to unrelated individuals, and that the applicant is now requesting its temporary use as an apartment unit. This would be contrary to the purpose and intent of the in-law apartment law and would set a serious precedent allowing apartment conversions in single-family districts. I have no planning objections to the in-law apartment contingent to the applicant receiving all necessary building permits and adhering to all the restrictions of the in-law apartment law including yearly documentation of the family relationship to the renters."

Larry DiNovo, applicant, presented the case.

Chairman Barber stated that the overriding issue here is that the in law apartment has to be rented by a relative by blood, marriage or adoption. Chairman Barber stated that he understood that sometime down the road he will have a relative in that apartment but at the present time there is another family in the apartment.

Mr. DiNovo stated that they have personal friends of theirs that became victims of identify fraud and they had to foreclose on their house and they would like to help them out and let them live in the apartment rent free until the time that his mom comes and lives there.

Chairman Barber stated that the Zoning Board is not the Legislative Board and the only authority they have is to grant what is set forth in the code. Chairman Barber stated that the very first requirement for an in-law apartment is that relationship that they do not have with this family and not meeting that first requirement makes it impossible for the Zoning Board to grant the special use permit for the in-law apartment.

Chairman Barber stated that the applicant could apply for a use variance which is a different application process.

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

Sharon Cupoli asked if the full apartment was done and if the kitchen did exist.

Mr. DiNovo replied that the apartment is not done; the rough framing and electrical has been done. Mr. DiNovo stated that this truly is a hardship and this couple has nowhere else to go.

Chairman Barber stated that the Zoning Board only have the ability to grant uses which are allowed in the zone; the only use that is allowed in the zone other than a single-family residence is an in-law apartment and the very first requirement for this in-law apartment is that it is occupied by someone related by blood, adoption or marriage. Chairman Barber stated that the applicant could possibly get a waiver from that requirement which is a use variance. The other possibility would be to go to the Town Board to find out whether they could possibly grant a grace period for the family to reside there until the applicant's mother would move in.

Chairman Barber made a motion to close the public hearing. Motion seconded by Sue Macri. Vote 7 – 0. (Marcantonio absent, Cahill alternate)

Chairman Barber made a motion for denial of the request of Lawrence DiNovo because the only ability of the Zoning Board of Appeals in terms of a special use permit for an in law apartment is a finding that the apartment is occupied by a person related by blood, adoption or marriage. Because of this point, this person is not the person occupying the premises and that first condition is not met, therefore the requirements for a special use permit cannot be satisfied. The Board, however, has discussed the possibility of the applicant applying for a use variance or seeking relief on a temporary basis from the Town Board. Again, the Zoning Board of Appeals is not the legislative body and does not have the ability to rewrite the code and has no authority whatsoever to grant this special use permit application. Therefore, I move that this application be denied." Motion seconded by Sue Macri. Vote 7 – 0. (Marcantonio absent, Cahill absent)

MATTER OF MEZZANOTTE – 2026 WESTERN AVENUE

Chairman Barber read the legal notice:

Amend Special Use Permit #07-06/Request No. 4065

Request of Victor A. Caponera, Jr., Esq. as attorney for Stellare, LLC for an amendment to Special Use Permit #07-06 under the Zoning Law to permit: the use of an existing outdoor patio area for seasonal dining for up to 18 patrons of an existing sit-down restaurant. In addition, a modification of the hours of operation is sought which would include Sunday dining hours and to allow up to 30 patrons to utilize second floor dining space.

Per Articles III and V Sections 280-20 & 280-52 respectively

For property owned by: Stellare, LLC

Situated as follows: 2026 Western Ave. Albany, NY 12203

Tax Map #51.07-2-28 Zoned: LB

Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 19th of March, 2008 at the Guilderland Town Hall beginning at 7:30pm.

Dated: March 11, 2008"

The file consists of the mailing list to 58 neighboring property owners, the Town's required forms for a special use permit, a Short Environmental Assessment Form, the Albany County Planning Board's notification of 2-21-08, the Town Planning Board's site plan review of 3-12-2008, the Town Planners comments of 4-8-08, depictions of space, the prior special use permit, a letter from the applicants attorney, a letter dated 4-7-08 addressing parking, delivery trucks, service bar area concerns, lights and shrubbery from John and Paige D'Anna of 4 Cornell Avenue, a letter dated 3-7-08 from Herb and Phyllis Rhoades regarding their concerns about additional landscaping, signage to discourage parking along Cornell Avenue and odors.

Albany County Planning Board's notification of 2-21-08 was defer to local consideration.

The Town Planning Board's site plan review of 3-12-2008 was to recommend with the following conditions: site plan should show actual improvements proposed/provided for the outdoor patio, modify existing SUP limitation of employee parking to 2020-2022 Western Avenue to identify the stacked parking spaces on 2026 as employee parking also, consider reduced hours of operation on the patio, clarify the actual number of parking spaces required based on 108 seats proposed. Restricting the number of patrons that can be seated downstairs if the upstairs is fully occupied appears to be an unenforceable condition. The additional 7 parking spaces available at 2020-2022 Western Avenue just outside the 300' limitation may be available by area variance, and clarify the exclusive availability of the parking at 2020-2022 Western Avenue after 5pm.

The Town Planner had the following comments: "The applicant has applied to amend their restaurant special use permit by expanding the hours of operation, expanding the permitted capacity of the upstairs meeting room, and expanding the seating onto an outdoor patio for seasonal dining use. The main issue with these requests is the adequacy of the parking and also the impact of moving the use out of doors. I have the following comments:

- The original approval allowed for 60 seats in the restaurant plus 10 guests on the second level, for a total of 70 seats. The new proposal requests 52 seats indoors, 18 seats outdoors and the possibility of 30 people upstairs if only 40 people are downstairs. This would be a maximum of 88 people, or an increase of approximately 25%.

- I am not sure how, if the upstairs was reserved for a party of 30, that the downstairs could be limited to 40 patrons. This seems very difficult to regulate, and so I think there could be the potential for 100 guests. Further, I don't know if the seating at the bar has been included.

- The narrative states that the parking has increased from 45 to 54 spaces. To achieve this, the applicant is counting two spaces at the restaurant that are totally blocked in and every parking space at the adjacent office building at 2020-2022 Western Avenue. That office building presently has a counseling services tenant who has evening office hours. I am told that on certain nights, their clients cannot find parking now.

- I am also concerned about the outdoor seating area proposed hours – extending to 11pm most nights and 12 midnight on Friday and Saturday. The proposed seating area is in close proximity to existing homes, and would be used during the warm weather months when people traditionally have their windows open.

When this application first came in, I was hesitant that the use was perhaps too big for the site as indicated that the majority of the required parking has to be located off-site. I think the applicant has made an outstanding effort in improving the site. But I am still concerned about the impact the use has on the adjoining residences and also the evening use of the office building. If these impacts could be adequately mitigated by finding additional parking, reserving parking spaces for the evening tenant use of the office building, and limiting the outdoor dining hours, I would have no objection."

Victor Caponera, attorney for the applicant, presented the case. Mr. Caponera withdrew the request for any additional seating on the second floor and also amended the hours for the patio area to: Monday – Friday from 5pm to 10pm, Saturday from 11am to 10pm and Sunday from 11am to 9pm. Mr. Caponera gave a brief overview of the request and the original special use permit.

Dr. Gagliardi addressed the comments made by the Town Planner regarding the parking on his property. Dr. Gagliardi stated that as far as he knew, none of his tenant's clients had any problems finding parking on his site.

Mr. Caponera asked for modification of the previously granted hours for the restaurant to the following: Monday – Thursday from 5pm to 11pm, Friday from 5pm to 12midnight, Saturdays from 11am to 12midnite and Sundays from 11am to 10pm. Mr. Caponera also asked to utilize the patio during the summer months for up to 18 patrons. Mr. Caponera stated that they were only utilizing 52 of the 60 spaces inside.

Chairman Barber stated that the maximum number of patrons would be 80; 52 on the lower level, 10 upstairs and 18 on the patio.

Mr. Caponera stated that was correct.

Chairman Barber asked if they were willing to reduce their allowed # of patrons downstairs to 52 instead of 60.

Mr. Caponera stated that they could do that.

Chairman Barber stated that Rodger Stone counted 53 parking spaces so they are actually 8 spaces over what they actually need.

There was discussion regarding the calculations for the number of parking spaces needed.

Mr. Caponera stated that his client is willing to add more stockade fencing and landscaping around the patio area. Mr. Caponera also stated that they are contemplating a permanent sign on Sumter Avenue that stated after 5pm only left turns out of Mr. Gagliardis property.

Rodger Stone stated that they had discussed with the Wares the possibility of putting up a chain and cones across the Sumter Avenue side which they did for a period of time.

Mr. Caponera discussed the average number of dinners served since the restaurant has opened and stated that it is a maximum of 20 per hour that is utilizing the property and his client has never had a problem with the parking.

Chairman Barber asked about the small delivery trucks and why they cannot pull into the parking lot.

Mr. Caponera replied that he has discussed that with his client and now they do pull into the parking lot.

Chairman Barber asked if there was anything that could be done with the larger delivery trucks.

Mr. Caponera stated that when the parking lot was new the delivery trucks were tearing up the parking lot and the bigger delivery trucks cannot fit into the parking lot so they have to park on the street for a short period of time.

Mr. Caponera submitted a letter from the neighbors at 8 Sumter Avenue stating that they have noticed no noticeable change in the neighborhood since the restaurant opened up.

Al Maikels asked if there would still be smoking on the patio area.

Ms. Ware replied that it would be up to the customer whether or not they want to sit on the patio because there might be smokers out there.

Chairman Barber asked when the outdoor dining would take place.

Mr. Ware replied from late May to late September or early October.

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

Betty Shields of 2 Sumter Avenue had concerns regarding the patio area, non-compliance of the conditions in the original special use permit, specific signage, the number of parking spaces, snow removal, odors, the additional hours of operation, headlights and the tractor trailers.

Rodger Stone discussed the 53 parking spaces and how he arrived at that number. Rodger also stated that he has only on one occasion smelled cooking odors.

There was discussion regarding the enforcement of the signage.

Paige D'Anna of 4 Cornell Avenue voiced her concerns on the overflow parking, the delivery trucks, the service bar and the size and lack of the landscaping.

Phyllis Rhoades of 2 Cornell Avenue voiced her concerns regarding the stockade fencing, parking on the street and the extended hours.

Bryan Clenahan thanked the applicant for striking some of the more difficult parts of the application. Mr. Clenahan asked the Board to continue the application to give the neighbors a chance to review the changes in the site plan.

Paige D'Anna asked for a clarification as to whether it was just a service bar or a functioning bar.

Chairman Barber replied that was a determination that Don Cropsey made back in 2006. Chairman Barber stated that you look what the dominant use of the bar is and this would be considered a service bar.

Chairman Barber asked the applicant to submit a landscaping plan around the patio area, any enhancements to the berm area, the stockade fence, signage for Sumter Avenue and an amended lease agreement with Mr. Gagliardi.

Chairman Barber made a motion to continue the case until May 21, 2008. Motion seconded by Sharon Cupoli. Vote 7 – 0. (Marcantonio absent, Cahill alternate)

OTHER:

The Board appointed Delaware Engineering as the TDE to review the stormwater management for the project at 2500 Western Avenue. Vote 7 – 0. (Marcantonio absent, Cahill alternate)

The Board approved the minutes of 3-19-08. Vote 6 – 0.

SIGNS:

The Board approved a 30sf sign for Marissas Place at 5 New Karner Road. Vote 7 – 0.

(Marcantonio absent, Cahill alternate)

The Board approved a sign for Beltone at 1728 Western Avenue. Vote 7 – 0. (Marcantonio absent, Cahill alternate)