TOWN OF GUILDERLAND
ZONING BOARD OF APPEALS
NOVEMBER 19, 2008
Members Present:
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Peter Barber, Chairman Charles Cahill, Alternate Sharon Cupoli Susan Macri Allen Maikels Mike Marcantonio Tom Remmert Robert Feller, Counsel
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Members Absent: James Sumner
Chairman Barber opened the meeting and pointed out the emergency exits in the event they were needed.
CONTINUED CASES:
MATTER OF JAMES SINKINS – 7060 SUZANNE LANE
Chairman Barber stated that since the last hearing the Board has received a copy of an e-mail from a tech supervisor with Direct TV indicating that the only place that could provide an adequate signal was where it is currently located on the pole and that the roof was not an adequate location given the large tree.
Mr. Sinkins stated that was correct and the tree was not his tree.
Chairman Barber asked Mr. Sinkins if the Direct TV people looked at the roof.
Mr. Sinkins stated that they did.
Chairman Barber asked if they had installed it on the roof would there have been any additional cost.
Mr. Sinkins replied that they would have put in on the roof for no charge if there was reception with it placed there.
Counsel Feller stated that he had taken a look at the FCC rules and the key question involves the provisions from the FCC rules that preempt local land use rules that impair the installation maintenance reviews of these satellite dishes. More specifically there are two provisions – one that says that the FCC would consider the local law impairing it if it unreasonably delayed or prevented the installation, maintenance or reviews or alternatively increased the cost of installation of maintenance reviews. Under the FCC rules the local government is not permitted to have any permitting program that requires a free evaluation permit where you would have to come and apply for a permit prior to installation of the dish. There can be citing requirements so long as those citing requirements don't impair the reception or
signal.
Chairman Barber asked if the roof was a site where there was an acceptable quality signal and it did not require any building permit, the applicant could do it as a matter of right, and the applicant was not coming for a variance and subjecting himself to a variance requirement because he wants to put it in a site where he thinks is more preferable, could the Zoning Board of Appeals say no?
Counsel Feller stated that the difficulty with the FCC rules is that even though they explain what can and cannot be done, they do not really allow the municipality the type of normal oversight that a municipality would have to make to make sure that it was done properly. Counsel Feller replied that from a substantive point of view, the Zoning Board of Appeals could turn him down because he could get reception on the roof and it would be adequate reception so the ZBA would not be interfering with his right to get adequate reception. However, the problem is that it would never get to the ZBA in the first place because requiring prior approval is impermissible under the FCC rules.
Chairman Barber asked: if an applicant decides that they do not want to put an antenna on their roof for some reason but they can for no cost and with no building permit; could the applicant still say that they do not want the antenna on their roof and could they then come to the ZBA for a variance. Could the ZBA then say no because the applicant has another location that meets all the requirements for the FCC regulations.
Counsel Feller replied that it is in the Town's interest to have the satellite dishes placed in a way that creates the least intrusion visually as long as the spot provides adequate reception. Counsel Feller stated that he assumed that in 99% of the cases, that would happen and the satellite companies would not go out of their way to comply with the Town's regulations unless there was not adequate reception.
Chairman Barber stated that he thinks that the satellite provider would take the easiest route; such as a Town allowing satellite dishes in the front yard, they would take that route instead of installing it on the roof. Chairman Barber stated that this does not necessarily apply in this case, he did not want others to feel they could place their satellite dishes in front yards; this case may have unique circumstances.
Counsel Feller stated that if someone specifically wanted to avoid putting it on the roof where they could otherwise put in on the roof without a reception problem, and if they were sophisticated enough to be clear enough about what the FCC requirements are, they could just do that.
Chairman Barber asked if there were any questions or concerns from the residents.
David Michela of 7066 Suzanne Lane, neighboring property owner, voice his concerns regarding the lack of "hard data" concerning the signal. Mr. Michela discussed possible mitigation of the satellite dish if it is allowed to stay.
Barbara Avgerinos of 7062 Suzanne Lane raised her concerns regarding setting a precedent by allowing this satellite dish.
Chairman Barber made a motion to close the public hearing. Motion seconded by Sue Macri. Vote 7 – 0. (Sumner absent, Cahill alternate)
Chairman Barber asked Don Cropsey if he had received any further data from the installation company.
Don Cropsey replied that he had called the gentleman that had submitted the original correspondence and he had indicated that he would provide additional information but had not received anything as of yet.
Counsel Feller stated that if the Town had standards for placement of a satellite dish, and unless there was a showing of no reception, and the Town determined after it was installed that it was not one of the preferred installation points, perhaps the route would be to try and assert jurisdiction over the dish company and force them to reinstall the dish.
There was discussion regarding the information requested by Direct TV and what to do if they do not provide it.
Chairman Barber asked Don Cropsey to contact Direct TV once again for more documentation.
Mr. Sinkins stated that his roof if a perfect spot for the satellite dish if the large tree was not there.
Chairman Barber stated he had visited the site and noticed that the antenna is facing back toward the house and is pointing over the roof. Chairman Barber stated that he would like to receive the additional information from Direct TV.
Chairman Barber stated that the difference between what the applicant has here and what you see with other FCC decisions is that the Town of Guilderland is not prohibiting this use and if they had, the Town would be in violation of the law.
Mr. Sinkins stated that he would be willing to install landscaping around the dish as long as it can still pick up the signal.
Nancy White of 7072 Suzanne Lane asked why the tree could not be cut down.
Chairman Barber replied that it is not the applicant's tree.
Don Cropsey stated that the applicant is willing to screen the dish from view and make a condition of approval for this application to have him screen it.
Jack Fairbank, President of the Country Village Townhouse Association, stated that the problem with the applicant screening the dish is that there are still residents behind the satellite dish that would see it.
Don Cropsey stated that he could screen it all the way around. Don stated that it could be screened effectively from view with trees that would not impede the reception of the dish; the dish is aimed at an angle and as long as the trees are kept below that angle, there won't be any disruption in reception.
Mr. Fairbank stated that they would like to see it on the roof as other residents have but if they receive proof that it cannot be put there then they can have is shielded. Mr. Fairbank stated that the Townhouse Association would most likely not be willing to pay the approximate $3000 for the removal of the tree.
Chairman Barber made a motion to continue the hearing to December 3, 2008 to see if they can get additional information from Direct TV. Seconded by Sharon Cupoli. Vote 7 – 0. (Sumner absent, Cahill alternate)
Counsel Feller stated that if the information comes back that the satellite dish could have been placed on the roof there will be a significant question as to whether the ZBA can compel that particularly if the installer is not willing to pay for it.
MATTER OF SUSHI TEI – 1800 WESTERN AVENUE
Counsel Feller recused himself from the application.
Chairman Barber stated that this is a continued case for decision only.
Frank Mayer of Bond, Schoeneck & King, LLC, representing Bi Fang Chen stated that he had contacted the landlord of the property and he had said that he was not willing to change the location of the placard on the sign nor would he be willing to modify the sign in any way.
Mr. Mayer submitted a picture of the monument sign last winter with the Sushi Tei placard covered with snow.
Chairman Barber stated that there have been a number of retail establishments in that plaza and this seems to have been a concern with them also.
Chairman Barber stated that the monument sign was established for the purpose of benefiting the establishments on the side and because there is always a sign there, why should they get two?
Mr. Mayer replied that because Sushi Tei is near the very back of the facility and they are on the very bottom of the monument sign and when drivers pass by, it may be more difficult to see that particular placard.
Chairman Barber stated that now it is at the top because of the vacant units.
Mr. Mayer stated that the permission to put the sign at the top of the monument sign is just temporary until a new tenant comes in.
Chairman Barber asked about the sight distance.
Don Cropsey replied that the sign as it is proposed will restrict sight distance from both this property and the adjoining property to the west. Don also stated that more importantly the proposal is contrary to what the sign section of the Zoning Law talked about in terms of the aesthetic and the visual impact that it will have on the community as a whole.
Chairman Barber made a motion regarding the application of Bi Fang Chen for a variance of the regulations under the Zoning Law to permit: the installation of two 4' x 4' business identification/directional signs to be mounted to the existing plaza identification monument sign. Variances are requested for the following: 1) to permit sign area to exceed area permitted by the ordinance and 2) to permit four business identification signs.
Situated as follows: 1800 Western Avenue Albany, NY 12203
Tax Map # 52.09-5-10 Zoned: LB
On November 5, 2008 this Board conducted a public hearing on this application. The applicant is asserting a need for additional signage to draw attention to their restaurant which is located at the rear of the side of Cosimos Plaza. Currently the applicant has a permanent building mounted sign and a permanent placard on the monument sign on Rt. 20 and also a temporary sign which occupies two of the six slots on the monument sign. The temporary sign is allowed by the landlord because the two units assigned to that sign remain vacant. The proposed new signs are two signs that form a "V" affixed to the base of the monument sign. The Board at its public hearing raised some concerns and asked for additional information regarding impacts on the line of sight for vehicles traveling on Rt. 20 and also exiting
and entering the site. The Board also asked if whether the applicant could achieve the same benefit by some other means as a redesigned sign monument and whether the variance is consistent with the goals of the sign ordinance. Don Cropsey has indicated that the signs would have a negative impact upon the sight line for vehicles exiting the site and the adjoining site and cars traveling on Rt. 20. The proposed signs are inconsistent with the Town's sign ordinance in that they are not compatible with other signs at the plaza. This property already has a monument sign which was included in the site plan associated with the special use permit for Cosimos Plaza and at that time the monument sign was intended to provide signage for businesses located on the side of the plaza. Adding an additional second sign at the base of the monument is inconsistent with the monument sign and also inconsistent with other signs on the monument sign. The proposed
signage would detract from the brick planter itself. Granting this variance for signage would set a precedent for other businesses that want additional signage. The sign ordinance addresses the concern by allowing both a building mounted sign and a freestanding sign as long as it is located at least 20' off the right-of-way. Therefore, for the reasons stated above, I move that the variance from the sign ordinance be denied." Motion seconded by Sharon Cupoli. Vote 7 – 0. (Sumner absent, Cahill alternate)
MATTER OF JAMES SASKO – 314 PAPA PLACE
Charles Cahill read the legal notice:
"Variance Request No. 4119
equest of Jim Sasko of Teakwood Builders, Inc. for a Variance of the regulations under the Zoning Law to permit: the construction of a 19' x 18' single-story addition to the west side of an existing single-family home. A variance is requested to allow a reduction of a previously approved 20' setback to 12'11".
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Dennis and Barbara Trimarchi
Situated as follows: 314 Papa Place Schenectady, NY 12303
Tax Map # 40.05-2-29 Zoned: R40
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 19th of November, 2008 at the Guilderland Town Hall beginning at 7:30pm.
Dated: November 11, 2008"
The file consists of the mailing list to 22 neighboring property owners, the Town's required forms for an area variance, a narrative, the Town Planners comments, the generic variance granted in 1992 for side yard setbacks in this development, and some plans of the proposed addition.
The Town Planner had the following comments: "The applicant is requesting an area variance to construct a residential addition that would encroach 7+ feet into the required side yard setback. No planning objections."
Jim Sasko, owner of Teakwood Builders, presented the case. Mr. Sasko stated that the owners would like to make their two-story dwelling into a one-story dwelling to be able to reside at this residence long after they retire. Mr. Sasko stated that there are two portions to the addition; one a first floor master suite and the second is a first floor study.
Chairman Barber stated that this is an addition to the east, west and back of the house but the variance only applies to the west side.
Chairman Barber asked Don Cropsey if there have been any other variances granted from the generic variance granted back in 1992.
Don Cropsey replied that he did not think so.
Chairman Barber asked what the distance would be between the addition and the adjacent home on the west side.
Mr. Sasko replied that this is the garage side of the home; it would be approximately 50'.
Chairman Barber asked if any of the neighbors had come to them with any concerns.
Mr. Sasko stated that before they applied for the variance, there was discussion with the adjacent neighbor and they had no problem with the variance.
Don Cropsey stated that all of the houses are spaced quite a distance apart.
Tom Remmert asked if any of the big trees would be removed.
Mr. Sasko stated that one of the trees would have to be removed.
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. (Sumner absent, Cahill alternate)
Chairman Barber made a motion for approval of:
Variance Request No. 4119
Request of Jim Sasko of Teakwood Builders, Inc. for a Variance of the regulations under the Zoning Law to permit: the construction of a 19' x 18' single-story addition to the west side of an existing single-family home. A variance is requested to allow a reduction of a previously approved 20' setback to 12'11".
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Dennis and Barbara Trimarchi
Situated as follows: 314 Papa Place Schenectady, NY 12303
Tax Map # 40.05-2-29 Zoned: R40
In rendering this decision, the Board makes the following findings of fact:
A public hearing was duly noticed and supplemented by mailing notice to property owners within 500' of said property. No residents provided either written or oral comments regarding the application.
This is a Type II Action under SEQRA, not requiring SEQRA review.
The Town Planner had no objections to the granting of the request.
The applicant has indicated that he contacted the neighbor to the west, who would be the most directly affected neighbor, and they have no objection to the application.
The Board did grant a variance back in 1992 for this development which resulted in a 20' side yard setback. This application involves additions on two sides; on the east side there are no variances required but on the west side it partially infringes on the setback.
The proposed addition is intended to create a first-floor master suite and large kitchen and study to allow the continued occupation of the home by its owners.
The proposed additions are attractively designed and collectively promote the appearance on the property and are not a detriment to nearby properties.
The variance will provide substantial or ample space between the new addition and the adjacent house to the west and will not negatively impact the character of the neighborhood.
In granting this decision, the Board imposes the following conditions:
Adherence to the plans as submitted which were relied upon by the Board in rendering its review and its decision.
Any additional landscaping, if needed, shall be left to the discretion of Don Cropsey.
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 7 – 0. (Sumner absent, Cahill alternate)
SIGNS:
The Board approved a 18sf freestanding identification sign for Guilderland Court Apartments at 2979 Old State Road with appropriate landscaping to be installed at the discretion of Don Cropsey. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved a 18sf building mounted sign for Ichiban at 1652 Western Avenue. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board denied a temporary banner for Little Caesars Pizza at 1800 Western Avenue. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board discussed the fire lane at 1800 Western Avenue. Don Cropsey stated that the fire inspector determined that the striping was not necessary.
The Meeting adjourned at 8:35pm.
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