TOWN OF GUILDERLAND
ZONING BOARD OF APPEALS
JANUARY 7, 2009
Members Present:
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Peter Barber, Chairman Susan Macri Allen Maikels Mike Marcantonio Tom Remmert James Sumner Robert Feller, Counsel
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Members Absent: Sharon Cupoli
Charles Cahill, Alternate
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Chairman Barber opened the meeting and pointed out the emergency exits in the event they were needed.
MATTER OF DARLENE NOVAK – 3045 SUNSET LANE
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. 4123
Request of Darlene Novak for a Variance of the regulations under the Zoning Law to permit: the construction of an attached carport within a required side yard on an existing undersized lot. A 4' +/- setback to the side property line is proposed, 8' is required. A variance of 4' is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Darlene Novak
Situated as follows: 3045 Sunset Lane Schenectady, NY 12303
Tax Map # 27.15-2-52 Zoned: R15
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 7th of January, 2009 at the Guilderland Town Hall beginning at 7:30pm.
Dated: December 23, 2008"
The file consists of the mailing list to 28 neighboring property owners, the Town's required forms for an area variance, a narrative provided by the applicant, the Town Planners comments and some diagrams of the house with the carport.
The Town Planner had the following comments: "The applicant has applied for an area variance to construct a carport that will encroach 4' into the required side yard. No planning objections."
Steve Novak presented the case.
Chairman Barber stated that the case seemed very straightforward. Chairman Barber stated that there was a petition signed by a number of neighbors stating that they had no objection to the project.
Rodger Stone stated that he had received questions as to why there were so many cars there all the time but if they were licensed and registered, it has no bearing on the town whatsoever.
The applicant stated that they have three cars and that is why they are looking for a carport.
Chairman Barber stated that this was an undersized lot so they are restricted a bit.
Chairman Barber asked if there were any questions or comments from the residents. There were none. Chairman Barber made a motion to close the public hearing. Motion seconded by Sue Macri. Vote 6 – 0.
Chairman Barber made a motion for approval of:
Variance Request No. 4123
Request of Darlene Novak for a Variance of the regulations under the Zoning Law to permit: the construction of an attached carport within a required side yard on an existing undersized lot. A 4' +/- setback to the side property line is proposed, 8' is required. A variance of 4' is requested.
Per Articles III & V Sections 280-14 & 280-51 respectively
For property owned by Darlene Novak
Situated as follows: 3045 Sunset Lane Schenectady, NY 12303
Tax Map # 27.15-2-52 Zoned: R15
The Board makes the following findings of fact:
A public hearing was duly noticed and held this evening. Five residents submitted a petition stating that they have no objection to the request.
The Town Planner had no objections.
This is a Type II Action under SEQRA, not requiring SEQRA review.
The Board also finds that this is an undersized lot and other homes in the area have similarly situated carports.
The neighborhood is heavily landscaped which will help screen the carport.
Therefore, the Board finds that the granting of this variance will not have a negative impact on the character of the neighborhood and the variance is not substantial.
In granting this request, 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 Jim Sumner. Vote 6 – 0. (Cupoli, Cahill absent)
MATTER OF GLASSWORKS – 2180 & 2200 WESTERN AVENUE
Tom Remmert read the legal notice:
"Notice is hereby given that the Zoning Board of Appeals of the Town of Guilderland, New York, will hold a public hearing pursuant to Articles III & V of the Zoning Law on the following proposition:
Variance Request No. 4124
Request of Daniel C. O'Brien for a Variance of the regulations under the Zoning Law to permit: the height of various buildings proposed in a recently approved planned unit development to exceed maximum height limits. Six of the development areas provide for buildings three stories in height.
Per Articles III & V Sections 280-17 & 280-51 respectively
For property owned by Beltrone Martial Trust and Joseph Lucarelli
Situated as follows: 2180 & 2200 Western Avenue Guilderland, NY 12084
Tax Map # 51.00-1-8 and 51.00-1-7 Zoned: PUD
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 7th of January, 2009 at the Guilderland Town Hall beginning at 7:30pm.
Dated: December 23, 2008"
The file consists of the mailing list to 51 neighboring property owners, the Town's required forms for an area variance, Albany County Planning Board's recommendation of 12-18-08, a narrative provided by the applicant, the Town Planners comments, a contract for the purchase of the land between the applicant and the Beltrone Trust and some diagrams of the property along with some renderings done by Dominic Raineri.
Albany County Planning Board's recommendation of 12-18-08 was to defer to local consideration.
The Town Planner had the following comments: "The applicant is requesting an area variance to allow three story buildings to be constructed with the Planned Unit Development. The whole idea of a PUD is to allow for flexibility in design and function. No planning objection."
Jim Schultz, attorney for the applicant, presented the case.
Chairman Barber asked the attorney if he would consider this a Type II Action under SEQRA.
Mr. Schultz stated that he would interpret it as a Type II Action.
Counsel Feller asked if there were a certain number of buildings that they were seeking variances for.
Mr. Schultz stated that they way that they presented the PUD that was approved by the Town Board was to set up the project as various building areas; there are a total of 15 development areas, 7 which are commercial and 8 additional residential areas. Mr. Schultz stated that because they don't know what the demand would be for commercial, they do not know what type of tenants there will be and it would be difficult to build specific buildings. This plan is to set up with development areas so at this point they are talking about 6 of the development areas that would most likely have buildings that will exceed 2 ½ stories in height and would require a variance. The variance would be to allow the construction of those buildings consistent with the requirements that were set forth under the PUD and consistent with
the final site plans that they have to submit to the Town Planning Board.
Counsel Feller stated that he would not consider this a Type II Action.
Chairman Barber stated that the Town Board has already ruled on this and done a findings statement.
Mr. Schultz stated that a positive declaration was issued back in 2006 and through that process they resulted in the final SEQRA approvals back in April of 2008.
There was lengthy discussion regarding the SEQRA and the Town Board approvals and findings.
Counsel Feller stated that he thought that the Zoning Board should issue findings on the Environmental Impact Statement just as the Town Board did.
Chairman Barber asked if they could just adopt the findings of the Town Board.
Jim Schultz replied that the Zoning Board could incorporate the findings of the Town Board since there have been no changes to the project from what was accepted by the Town Board when they issued their findings statement in April 2008.
Counsel Feller stated that each individual involved agency is obligated to make findings based upon the Environmental Impact Statement.
Chairman Barber stated that the Town Board determined this to be a Type I Action under SEQRA and asked if the Zoning Board could just adopt what the Town Board determined.
Counsel Feller stated that there are many situations where there is a project that is subject to the review of many different regulatory agencies. One of those agencies becomes the lead agency and does an Environmental Impact Statement and that Environmental Impact Statement serves for all of the involved agencies. When the Environmental Impact Statement is over, each of the involved agencies goes back and they deal with their permits and they are obligated to make findings under SEQRA. The Zoning Board of Appeals is not the lead agency in this matter.
Jim Schultz stated that the reason they are here is when the PUD regulations were adopted by the Town in 1987 they indicated that heights would not exceed 35' or 2 ½ stories. Mr. Schultz stated that when they proposed this project they were encouraged to have much density as possible in a restricted space and settled on having three story buildings. Mr. Schultz stated that when the PUD legislation was before the Town Board for approval it originally was suggested that they include in the Local Law the deviation from the Town Zoning Law the height restrictions under the PUD. Mr. Schultz stated that one of the Town Board members raised a concern that they were not respecting the zoning laws as is and they agreed at that time to take it out of the Local Law and bring it to the Zoning Board for a variance.
Chairman Barber stated that this did go through an exhaustive review by the Town Board and the Town Planner and stated that the Zoning Board could address any SEQRA issues at this time.
Jim Sumner asked of any of the three story buildings would be on Western Avenue.
Mr. Schultz replied that one section of the three story buildings were more along Windingbrook Drive.
Tom Remmert asked if there were certain building that were already designated to be three stories.
Mr. Schultz replied that there will be building in six of the development areas listed on the map that will exceed 2 ½ stories but not all of the buildings in those areas will exceed 2 ½ stories.
Tom Remmert had concerns regarding fire department access.
Mr. Schultz stated that they have dealt with the Guilderland Fire Department extensively on fire access and they have approved the plan.
Counsel Feller had concerns with giving a variance to various development areas.
Mr. Schultz replied that he does not know of any authority that prevents the Zoning Board from doing that.
Counsel Feller stated that normally a variance would come forward after the Building Inspector denied a building permit and in this case there have been no building permits submitted. Counsel Feller stated that he does not know if the Zoning Board has the authority to grant this variance.
Chairman Barber stated that this is all in the context of a PUD and from day one the idea that this project envisioned buildings that were in excess of the height limitations set forth in regulations was known. Chairman Barber stated that part of the local law has built into it an architectural committee that looks at all the buildings going in. Chairman Barber stated that PUDs by themselves are unique, they have their own set of rules.
Counsel Feller stated once again that he does not feel that the Zoning Board has the jurisdiction to grant this variance.
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 Jim Sumner. Vote 6 – 0. (Cupoli, Cahill absent)
Don Cropsey stated that he had been in a couple of meetings regarding Glassworks over the years and from the onset they talked about three story buildings.
Chairman Barber asked how this application came to the Zoning Board without any building permit being applied for first.
Don Cropsey stated that was correct; all the final approvals for the project have not been obtained yet. Don Cropsey stated that the Town Board was comfortable with the project and they wanted to include all of the boards that review projects; the Zoning Board being one of them. The Town Board wanted the Zoning Board to take a look at the height issue.
Chairman Barber asked Don Cropsey if he felt that the Zoning Board could act on this application tonight.
Don Cropsey replied that generally speaking when people come to him and there is non- compliance with a provision in the Zoning Law, he denies the building permit; it is an administrative issue. Then that act is appealed through the Zoning Board. That has not happened in this case. Don Cropsey stated that if an application was made, he would not issue the permit until the variance was issued. This variance would allow them the flexibility of a design before an application is made.
Chairman Barber stated that at this point the Town Board has given a PUD through the Local Law. Now they would have to go back to the Planning Board.
Don Cropsey stated that the Planning Board approves the final site plan.
Chairman Barber asked in the context of the Planning Board's review would the Planning Board be getting into the details regarding the height of the buildings?
Don Cropsey stated that they would because it encompasses the architectural element of the project, he did not think that the project would be approved if it was a bunch of boxes.
Mr. Schultz stated that is going to be an integral part of their review.
Counsel Feller felt that the Planning Board should give their final approval first and then refer it to the Zoning Board.
Don Cropsey stated there have been a number of reviews and recommendations by the Planning Board and the Town Board and one of the components of this project has been the height so both the Planning Board and the Town Board have referred it to the Zoning Board.
Chairman Barber stated that this has been a very lengthy process; it has been to the Planning Board a number of times.
Don Cropsey stated that they had discussed the height of the buildings at a number of their meetings in house and it was his understanding at those meetings that the Zoning Board would have almost no input on this and that the heights would be included in the local law. Don Cropsey stated that towards the end of the review process it was determined that the Town Board wanted the Zoning Board to take a look at the heights.
Mr. Schultz replied that it was not because there was any concern about the heights; they knew that they could have changed the heights in the local law but they wanted this to be an opportunity for the Zoning Board to get involved. Mr. Schultz stated that in the Town Code it does not state that a building permit needs to be applied for first; it simply requires that an application for a variance be made.
Counsel Feller replied that under the Town Law the Zoning Board is an appellate body.
Don Cropsey stated that he recalls another general variance granted for 2 different subdivisions for multiple lots from the angle of repose.
Chairman Barber made a motion regarding the application:
"This is a Type I Action under SEQRA and that the application has been pending for a number of years. The Town Board issued a positive declaration in 2006 and at that time a Draft Environmental Impact Statement was prepared by the applicant. That DIS also contained mitigation and conditions to address the concerns identified by the Town Board which ultimately ended in a findings statement early this year finding that there will be no significant impact upon the environment through the granting of this PUD. That PUD included buildings that were in excess of 2 ½ stories or 35' therefore I am comfortable finding that adopting the findings of the Town Board with respect to the aesthetic impacts based upon the proposed development and also find that the village scope as designed is consistent with both the
Comprehensive Plan and the Guilderland Master Plan. I also find that the village scope that envisions peaked roofs and 3 story buildings is something that the Town has been encouraging at this site for a number of years and that the Town Board did ultimately adopt the PUD a short time ago. Based upon those findings I move that a negative declaration should be issued meaning that the granting of the variance as proposed by the applicant will not have a significant impact upon the environment."
Counsel Feller stated that the Zoning Board should still have to make findings.
Chairman Barber stated that he had made findings and had adopted the findings from the Town Board as their own.
Motion seconded by Sue Macri. Vote 6 – 0. (Cupoli, Cahill absent)
Chairman Barber made a motion for approval of:
Variance Request No. 4124
Request of Daniel C. O'Brien for a Variance of the regulations under the Zoning Law to permit: the height of various buildings proposed in a recently approved planned unit development to exceed maximum height limits. Six of the development areas provide for buildings three stories in height.
Per Articles III & V Sections 280-17 & 280-51 respectively
For property owned by Beltrone Martial Trust and Joseph Lucarelli
Situated as follows: 2180 & 2200 Western Avenue Guilderland, NY 12084
Tax Map # 51.00-1-8 and 51.00-1-7 Zoned: PUD
In rendering this decision, the Board makes the following findings of fact:
A public hearing was duly noticed and supplemented by mailing to nearby property owners. No residents provided either written or oral comments regarding the application.
The Board also made findings under SEQRA; finding that there would be no significant impact caused by the granting of this variance.
The Albany County Planning Board's recommendation was to defer to local consideration.
The Town Planner made comments encouraging the adoption of this application.
The Board further finds that pursuant to Local Law #2 of the year 2008 the Town Board approved this mixed use Planned Unit Development. Six of the proposed development areas as set forth in the attached map provide for three story buildings. These were the same plans that were submitted to both the Town Board and the Town Planning Board during its SEQRA review. The proposed three-story buildings have been part of this proposed PUD from the outset and received positive declaration under SEQRA and a findings statement that the proposed development would not have an adverse environmental impact. This included an assessment of the aesthetic impacts resulting from the proposed development.
The Board further finds that the three-story buildings for the most part will be located within the development area and along Windingbrook Drive.
In addition to the Town Board, the project has been favorably endorsed by the Guilderland Hamlet Association and is consistent with the village concept endorsed by both the Comprehensive Plan and the Guilderland Hamlet Master Plan.
The height variance is required in part because of the pitched roof used in the village neighborhood design that is encouraged by both the Comprehensive Plan and the Guilderland Hamlet Master Plan.
In granting this decision, the Board imposes the following conditions:
Adherence to the PUD Local Law and also subject to final site plan review by the Town Planning Board.
The applicant shall work with the fire department regarding any issues ladder truck access to the structures.
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. (Cupoli, Cahill absent)
MATTER OF NATIONAL DEV. COMPANY – 1828 WESTERN AVENUE
Al 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 #44-95/Variance Request No. 4125
Request of Joseph McFawn of National Development Company, LLC for a Variance of the regulations/Amend Special Use Permit #44-95 under the Zoning Law to permit: the conversion of a 2150+/-sf two-story dental office to a real estate office. 15 parking spaces are provided; 16 are required. A shared parking and vehicle access agreement with the adjacent property was previously approved by the Board. A variance is requested from providing a sidewalk along US Rt. 20.
Per Articles III & V Sections 280-19 & 280-51 & 52 respectively
For property owned by National Development Company, LLC
Situated as follows: 1828 Western Avenue Albany, NY 12203
Tax Map # 52.09-6-14 Zoned: BNRP
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 7th of January, 2009 at the Guilderland Town Hall beginning at 7:30pm.
Dated: December 30, 2008"
The file consists of the mailing list to 120 neighboring property owners, the Town's required forms for an area variance, the Short Environmental Assessment Form, Albany County Planning Board's recommendation of 11/20/08, The Town Planners comments, the Town Planning Board's site plan review of 12/10/08, the deed for the property, a brief project narrative, a plan of the property, renderings of the interior and a copy of the special use permits granted to David Mazzio for both 1828 and 1830 Western Avenue properties dated November 29, 1995.
Albany County Planning Board's recommendation of 11/20/08 was to defer to local consideration.
The Town Planner had the following comments: "The applicant has requested a special use permit to use the existing building as a real estate office. The building had formerly been used for a dental practice until it was damaged by fire. The applicant intends on renovating the structure for office use. I believe the dentist may have had parking rights on the adjoining property but this is not indicated with this application. No planning objections contingent on the Board determining the adequacy of the parking."
The Town Planning Board's site plan review of 12/10/08 was to recommend with the following suggestions: consideration be given to eliminating the three parking spaces in the Palma Blvd. right-of-way and extend curbing and sidewalk.
Paul Scioccetti, attorney for National Development Co., presented the case. Mr. Scioccetti stated his applicant would like to operate a real estate company at this location. Mr. Scioccetti stated that this property was damaged extensively by fire and his client is renovating it. His client has one employee who will be working there with him. Lighting will be downcast lighting; landscaping will upgraded in the front of the building. Mr. Scioccetti stated that he would not need all the parking that he currently has. Mr. Scioccetti stated that the only issue is the matter of the ingress and egress for the adjoining property and for additional parking. Mr. Scioccetti stated that his client does not have a problem with the neighbors using the ingress and egress but his client does not need any additional
parking on the neighbor's site. Mr. Scioccetti stated that hopefully they would be able to come up with a shared parking agreement with the neighbor.
Chairman Barber asked what happens if they don't?
Mr. Scioccetti stated that he thinks it would be a bit over burdensome for the property owner to have to maintain his access without some kind of consideration for maintenance and to make sure there is some kind of insurance.
Chairman Barber asked again what would happen if they don't reach an agreement.
Mr. Scioccetti replied that they go back to the issue of the neighbors accessing the driveway. Mr. Scioccetti stated that he thought it would be a reasonable request.
Chairman Barber asked if they would shut off access to Palma Blvd.
Mr. Scioccetti stated that the goal would be to make sure there is adequate insurance and that there is a shared driveway agreement so that the maintenance and repair is shared by the people that are using it. Mr. Sciocchetti stated that without a shared parking agreement that property could be shut off.
There was discussion of the previous shared parking agreement between 1828 and 1830 Western Avenue.
Chairman Barber asked if the hair salon property had access onto Rt. 20.
Don Cropsey stated that he believed there was a driveway that was still in existence.
Chairman Barber asked if they would still have access.
Don Cropsey stated that they would.
Chairman Barber stated that it was his understanding that in 1995 the condition was that it was going to eliminate the access from Rt. 20 between the two parcels and then share the ingress and egress to Palma Blvd. to access the light.
Don Cropsey replied that he thinks that they kept it for a parking spot, he is not sure how much it is used.
Chairman Barber stated that back in 1995 the Albany County Planning Board disapproved the special use permit because there was a concern about access at that point.
Chairman Barber stated that if we are at a situation where the property owner at the corner does not like the fact that the next-door neighbor is not contributing to the upkeep, etc. and would want to prevent access to the light from the 1830 Western Avenue property owner, what would happen then.
Don Cropsey stated that it is a condition and would be something that would have to be resolved by the Zoning Board. Don stated that the Board approved the permit comprehensively; based on Rt. 20 studies, etc.
Chairman Barber asked Mr. Scioccetti if he had a copy of the lease agreement.
Mr. Scioccetti replied that he did, but it expired in 2000. Mr. Scioccetti stated that the agreement as written had the owner of 1830 as a landlord and the owner of 1828 as a tenant renting space from the property next door for a fee. In consideration for the space, the owner was given $25 per space plus access across the property.
Chairman Barber asked Don Cropsey if the hair salon needed the parking on the adjacent lot.
Don Cropsey stated that the new applicant does not need the parking next door.
Chairman Barber stated that the parking is not really an issue anymore; the question is just the ingress and egress.
Chairman Barber asked about the lighting.
Mr. Scioccetti stated that there would be a motion light on the back southwest corner of the building shining down on the parking lot; an additional light over the back entrance, a light over the front entrance and an illuminated sign in the front. There is a second entrance on the west side which will not be used regularly. Mr. Scioccetti stated that the landscaping along the back will remain and the landscaping in front will be redone.
Chairman Barber asked how visitors accessed the building.
Mr. Scioccetti replied that the visitor can either enter through the back where the parking is or the front although the front entrance is mainly for show.
There was discussion regarding the applicants construction and restoration businesses.
Chairman Barber asked if there were any questions or comments from the residents.
John Bini, part owner of 1830 Western Avenue stated that he has no problem sharing expenses of the parking lot.
Don Cropsey stated that he had concerns with the location of the motion detector light.
Chairman Barber made a motion to close the public hearing. Motion seconded by Al Maikels. Vote 6 – 0. (Cupoli, Cahill absent)
There was discussion regarding the variance for the sidewalk.
The Board discussed the need for an agreement between the two property owners for ingress and egress.
Chairman Barber made a motion to continue the hearing for decision only on January 14, 2009. Motion seconded by Al Maikels. Vote 6 – 0. (Cupoli, Cahill absent)
OTHER:
The Board approved a temporary sign for H & R Block at 20 Mall until April 15, 2009 conditioned upon the removal of the sign at the end of each day. Vote 6 – 0. (Cupoli absent, Cahill absent)
The Board approved the minutes of 11-19-08. Vote 5 – 0. (Cupoli, Cahill absent, Sumner abstained)
The Board approved the minutes of December 3, 2008 with minor corrections. Vote 6 – 0. (Cahill, Cupoli absent)
The meeting adjourned at 9:15pm.
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