TOWN OF GUILDERLAND
ZONING BOARD OF APPEALS
MAY 6, 2009
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 |
Members Absent: James Sumner
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Chairman Barber opened the meeting and pointed out the emergency exits in the event they were needed.
MATTER OF GARY WARNKEN – 107 VAN PATTEN LANE
Chairman Barber stated that this case was continued to allow the applicant's attorney to submit a response to the letter from the neighbor's attorney. Mr. Lang had submitted a letter to the Board responding to Mr. Schultz's correspondence.
Counsel Feller stated that SEQRA rules require that the Board issue a SEQRA determination before the final decision.
Chairman Barber made a motion of non-significance in this Unlisted Action:
"This Board has conducted a review of this application for a customary home occupation to determine whether the granting of this special use permit would have a significant impact upon the environment. This review consisted of the comments provided by the Town Planning Board, the Town Planner, the public hearings and the comments provided by the neighbors. Based upon this review, I move that a negative declaration under SEQRA for this customary home occupation should be issued." Motion seconded by Sue Macri. Vote 7 – 0. (Sumner absent, Cahill alternate)
Chairman Barber stated that the issue is the garage. Chairman Barber stated that the variance for the garage itself was granted back in 2006 and the variance runs with the land. Chairman Barber asked Don Cropsey if he thought that the conditions for the variance had been satisfied.
Don Cropsey replied that he did.
Chairman Barber asked Don Cropsey about the storage of commercial vehicles.
Don Cropsey replied that internal storage of commercial vehicles is allowed.
Chairman Barber stated that the "outdoor business activities" do not meet the requirements for a customary home occupation.
There was discussion regarding previously approved and denied customary home occupation requests.
Chairman Barber made a motion regarding the application of:
Special Use Permit Request No. 4133
Request of Gary Warnken for a Special Use Permit under the Zoning Law to permit: the use of a portion of a single-family home as a customary home occupation.
Per Articles III & V Sections 280-14 & 280-52
For property owned by Gary Warnken
Situated as follows: 107 Van Patten Lane Albany, NY 12203
Tax Map # 52.09-3-15 Zoned: R15
The Board makes the following findings of fact:
"This is an application by Gary Warnken for a special use permit for a customary home occupation at property located at 107 Van Patten Lane. The request pertains to Capital Concrete, Inc., a concrete form business. Twelve residents signed a petition in opposition to the application. Other residents spoke both in favor and against the request.
Most of the public hearing focused on a large garage at the rear of the property and its use in the applicant’s business. These concerns raised issues that are not part of this Board’s inquiry. First, the size of the garage is simply not an issue in this customary home occupation request. In 2006, this Board granted a two-foot height variance based upon the applicant’s stated need for additional height to accommodate a recreational vehicle and that the garage would be buffered by landscaping. This variance runs with the land. The Zoning Department has stated that the Board’s conditions for this variance have been met by the applicant.
Second, the mere storage of commercial vehicles in the garage is also not a relevant issue in considering this application. Zoning Code 280-25(F)(3) allows for the internal storage or garaging of commercial vehicles in a residential zone and does not require any permit from this Board.
This Board’s focus is solely based upon Zoning Code 280-5's definition of a customary home occupation. In their application, the applicant seek a customary home occupation to “receive mail [and] receive phone calls.” This “indoor business activity” meets the requirements for a customary home occupation, in that it is conducted wholly within the dwelling, does not involve any employees, and does not involve any clients or deliveries at the property. Indeed, this indoor activity occurs unnoticed in most residences.
To the extent that the application seeks permission to engage in business activities outside the home, these “outside business activities” do not meet the requirements for a customary home occupation and must be denied. First, these outside business activities do not meet the definition’s requirement that the occupation or profession must occur “wholly within the enclosed walls of the dwelling unit exclusive of accessory structure.” A garage is an accessory structure. The credible evidence indicates that the business activity at the property extends beyond the dwelling unit and includes both this accessory structure and driveway. On a daily basis, the applicants’ employees arrive in the morning at the property, park their pick-up trucks on the driveway, and leave
together for off-site work in the applicant’s two on-site commercial vehicles, a dump truck and panel truck containing tools and additives for the applicant’s concrete form business. At a minimum, these daily outside business activities, as noted by the Town Planner, constitute a launching point for the business. Most importantly, these outside business activities are not conducted “wholly within the enclosed walls of the dwelling unit,” as required for a customary home occupation.
Second, these outside business activities involve more than one full-time non-family employee, where only one such employee is allowed under the customary home occupation definition. The applicant’s reliance upon another special use permit which allowed two non-family members is misplaced. In that matter, the applicant employed two part-time employees, one of which worked one-day per week and were rarely present at the same time. The Board construed this scenario to be the functional equivalent of one full-time non-family employee.
Third, these outside business activities are inconsistent with the definition’s requirement that the use “shall not generate traffic beyond that normally expected in a residential neighborhood.” The actual number of additional trips, at least six (6), is not the issue. Instead, it is the type of traffic, including daily arrivals of employees in pick-up trucks and departures in the applicant’s commercial vehicles, which exceeds normal residential neighborhood standards. The arrival of employees occurs at the same time that other contractors arrive to have coffee at the house. While the applicant identifies these contractors as “friends,” these daily gatherings add to traffic that is inconsistent with the requirement for a customary home occupation.
Fourth, the noise from daily mobilization activity occurs outside the dwelling unit and conflicts with the requirement that the use “shall not create noise . . . detectable by the normal senses of persons outside the dwelling unit.”
For these reasons, to the extent that the application for a customary home occupation seeks permission to engage in outside business activities, it is denied.
Nothing in this decision should be construed to prohibit the applicant from receiving mail and answering phones within his home. This decision also does not prohibit the storage of commercial vehicles in the garage in a manner consistent with the Code."
There was discussion by the Board members about enforcement of activity on the site not approved in the special use permit for this customary home occupation. There was discussion regarding what steps could be taken if activity continues on site which is not covered in the special use permit.
Motion seconded by Sue Macri. Vote 6 – 1. (Cupoli in the negative)
MATTER OF JOHN WALLACE – 460 RT. 146
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, IV & V of the Zoning Law on the following proposition:
Variance Request No. 4137
Request of John Wallace for a Variance of the regulations under the Zoning Law to permit: the construction of a 24' x 40' single-story addition to an existing single-family home. Addition will include a master bedroom, bath and a two-car garage. A variance is requested to allow this proposed addition within a 100' setback from a watercourse.
Per Articles III, IV & V Sections 280-14, 280-29F & 280-51
For property owned by: John Wallace
Situated as follows: 460 Rt. 146 Guilderland Center, NY 12085
Tax Map # 38.20-1-22 Zoned: R15
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 6th of May, 2009 at the Guilderland Town Hall beginning at 7:30pm.
Dated: April 28, 2009"
The file consists of the mailing list to 28 neighboring property owners, the Town's required forms for an area variance, the Town Planners comments, Albany County Planning Board's notification of 3/19/09, a letter from Steven Walrath, land surveyor, certifying that the first floor elevation of the dwelling meets the flood plain requirements, a depiction of the property and a brief narrative.
The Town Planner had the following comments: "Last year this applicant applied for and received an area variance to reconstruct an abandoned house that was located 56' from the Black Creek. He is now requesting a variance to build an addition to the existing home. The addition will not encroach any further than the existing house. No planning objections."
Albany County Planning Board's notification of March 19, 2009 was to defer to local consideration.
John Wallace, applicant, presented the case. Mr. Wallace stated that this does meet the requirements for the flood plain, it is 3.5' above the level. Mr. Wallace stated that this addition was within 56' of the creek.
Chairman Barber stated that the Board had previously granted a variance to allow Mr. Wallace to reconstruct an abandoned house on this site.
Mr. Wallace stated that he is looking to put an addition on now.
Chairman Barber stated that the addition is not going to be any closer to the Black Creek that the original reconstruction of the home.
Sharon Cupoli asked if he would be putting a basement under this addition.
Mr. Wallace replied "no", he would be putting it on metal posts.
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. 4137
Request of John Wallace for a Variance of the regulations under the Zoning Law to permit: the construction of a 24' x 40' single-story addition to an existing single-family home. Addition will include a master bedroom, bath and a two-car garage. A variance is requested to allow this proposed addition within a 100' setback from a watercourse.
Per Articles III, IV & V Sections 280-14, 280-29F & 280-51
For property owned by: John Wallace
Situated as follows: 460 Rt. 146 Guilderland Center, NY 12085
Tax Map # 38.20-1-22 Zoned: R15
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 had either written or oral comments regarding this application.
This is a Type II Action under SEQRA, not requiring SEQRA review.
Albany County Planning Board's notification was to defer to local consideration.
The Town Planner had no planning objections.
The Board previously granted an area variance for the main structure that allowed the applicant to reconstruct an abandoned house at this location. The proposed variance will allow an addition that will not encroach any further onto the Black Creek than the existing home.
The applicant has submitted a letter from Steven Walrath, a licensed surveyor which demonstrates compliance with the flood plain requirements.
For the reasons stated in the prior approval for the main dwelling, the same reasons would apply to the proposed addition.
In granting this decision, the Board imposes the following conditions:
Adherence to the plans as submitted.
Construction hours shall be limited to the following: Monday – Friday from 8am to 5pm, 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 Sharon Cupoli. Vote 7 – 0.
MATTER OF JOSEPH AND LYNNE GOLONKA – 2209 WESTERN AVENUE
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:
Special Use Permit/Variance Request No. 4138
Request of Joseph and Lynne Golonka for a Variance of the regulations/Special Use Permit under the Zoning Law to permit: the use of an existing owner occupied single family home located on a 6.2 acre parcel as a bed and breakfast inn. In addition, it is proposed to conduct catered weddings and parties for up to 140 people. On and off site parking is proposed. This property is listed on the National Register of Historic Places. A variance is requested from providing a 5' wide concrete sidewalk.
Per Articles III & V Sections 280-14 and 280-51 & 52 respectively
For property owned by: Joseph and Lynne Golonka
Situated as follows: 2259 Western Avenue Guilderland, NY 12084
Tax Map # 40.00-2-6.2 Zoned: R15
Plans open for public inspection at the Building Department during normal business hours. Said hearing will take place on the 6th of May, 2009 at the Guilderland Town Hall beginning at 7:30pm.
Dated: April 28, 2009"
The file consists of the mailing list to 31 neighboring property owners, the Town's required forms for a special use permit, a Short Environmental Assessment Form for this Unlisted Action, a letter from Alice Begley, Town Historian stating that she was in favor of the application, Albany County Planning Board's notification of March 14, 2009, the Town Planners comments, the Town Planning Board's site plan review of 3-25-09, a memo from Bill West of the Water Department, a narrative, some information from 1996 and a plot plan.
Albany County Planning Board's notification of 3-14-09 was to defer to local consideration.
The Town Planner had the following comments: "The applicant is requesting to use the residence as a bed and breakfast establishment and for catered parties both of which are permitted with a special use permit.
The applicant indicates that potential guests would number 30-40 for a small party and 125-140 for a wedding. The existing paved parking areas could accommodate a small party but for a large event the applicant needs to make arrangements for additional parking.
This is a beautiful historic property and it would not be appropriate to pave additional areas for an occasional large event. However, the applicant should formalize how many off site parking spaces are to be provided and how guests would be shuttled to and from the overflow parking.
No planning objections."
The Town Planning Board's site plan review of 3-25-09 was to recommend with the following conditions: a formal agreement be established for off site parking for large events, access at Western Avenue be reviewed to ensure it is adequately sized/designed to accommodate anticipated traffic.
A memo from the William West, Superintendent of the Town of Guilderland Department of Water and Wastewater Management stating that water/sewer permits will be required for modifications if large scale receptions are allowed.
Don Cropsey gave a brief overview of the project. Don stated that back in 1996 Mr. & Mrs. Golonka came in and applied for the same thing and at the time the Zoning Law did not allow what they wanted to do. Subsequent to their application they approached the Town Board and the Town Planner to amend the Zoning Law and the Board did enact legislation that would permit the use of historic properties on state or county highways to conduct bed and breakfast operations and special catering events. However, the law limits the number of people to 130.
Lynne Golonka, applicant, presented the case. Ms. Golonka stated that the house needs a lot of maintenance and upkeep and with this proposal it would allow them to stay there and enhance the property. Ms. Golonka stated that they have an agreement with the NYS Foundation of Nurses Association for parking which is located 6/10 of a mile from their property. Ms. Golonka stated that she is working with an arrangement for transportation back and forth. The hours of operation would be weekends until approximately 7pm.
Chairman Barber stated that the parking would be more than 300' from the site which would require an area variance. Chairman Barber stated that the Board would need more than just a letter for shared parking, they would need a signed contract.
Chairman Barber asked about the access from Rt. 20 to their property.
Ms. Golonka stated that the grass area could also be used if need be.
There was discussion whether the Department of Transportation would need to be contacted regarding the access to the property.
The Board discussed the variance for a sidewalk. Don Cropsey stated that there are no sidewalks on that side of Rt. 20.
Chairman Barber asked what kind of lighting they would have.
Ms. Golonka stated that she would not be having any evening parties so no lighting would be needed.
Chairman Barber asked about a mass gathering permit for large parties.
Don Cropsey replied that he did not think that they would need a mass gathering permit if a special use permit was granted.
Chairman Barber asked about the food service preparation and the water and sewer needs.
Don Cropsey stated that this would be more of a permanent situation, a mass gathering permit is for a one-time event.
Ms. Golonka stated that they do have facilities in the house and could also get porta johns to put outside if need be. Ms. Golonka stated that the food would be catered, so there would be no food preparation on site for the parties.
Chairman Barber asked if the property was still for sale.
Ms. Golonka replied that it is coming off the market on the 15th of May.
Tom Remmert asked about the number of guests allowed.
Chairman Barber stated that the number of guests allowed under the code is 130.
Ms. Golonka replied that 130 would be no problem.
Chairman Barber asked if there were any questions or concerns from the residents. There were none.
There was discussion regarding the need for readvertising for the variance.
Chairman Barber made a motion to continue the hearing for 2 or 4 weeks, depending on Albany County Planning Board's notification. Motion seconded by Sharon Cupoli. Vote 7 – 0. (Sumner absent, Cahill alternate)
SIGNS:
The Board approved the revised sign, canopy designs and lighting for the Citgo gas stations at Carman Road and Western Avenue with the condition that there be fully recessed lighting under the canopy. The stations will now become Sunoco gas stations. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved a 50sf freestanding monument sign for CM Fox Real Estate at 2390 Western Avenue. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved a 48sf building mounted sign for Emack and Bolios at 1704 Western Avenue. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved a 28sf freestanding identification sign for Cheryl Sorbero, Orthodontist at 1465 Western Avenue. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved a 20sf permanent freestanding sign for Siver Hill Restaurant & Banquet House at Pinehaven Country Club. Vote 7 – 0. (Sumner absent, Cahill alternate)
The Board approved three 372sf permanent building mounted identification signs for Dicks at Crossgates Mall. Vote 7 – 0. (Sumner absent, Cahill alternate)
MINUTES:
The Board approved the minutes of 3-4-09.
The meeting adjourned at 9:10pm.
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