ZONING BOARD MINUTES
March 18, 2002
Approved 05/20/2002
Posted 05/27/2002
Minutes of the Zoning Board meeting held in the Town Hall, lower level meeting room, 11 South Main Street, Pittsford, on March 18, 2002 and filed in the Town Clerk's office on:
MEMBERS PRESENT
Ed Starowicz, David Rogachefsky, Larry Magguilli, George Dounce, Rufus Falk, Barbara Servé
MEMBERS ABSENT
Peter Webster
ALSO PRESENT
Richard Williams Attorney, David Rowe Building Inspector, Sandie Freitag Secretary for the Zoning Board of Appeals, John Higgins Town Board Liaison, Sandy Zutes Deputy Town Supervisor
Chairman, Ed Starowicz, called the regularly scheduled meeting of the Zoning Board of Appeals to order at approximately 7 p.m. He gave a summary of the procedures to be followed for each public hearing, how the Board would deliberate, how public input would be taken, etc. He indicated that written comments are welcome until the public hearings are closed.
CONTINUED PUBLIC HEARINGS:
4245 East Avenue
Nazareth College
Tax #151.14-1-1
Requesting an Area Variance
Code Section 185-39
Requiring all structures shall not exceed 30' in height.
Chairman, Ed Starowicz had opened the Public Hearing for 4245 East Avenue, Nazareth College on January 23rd, 2002, after discussion with the applicant and the board members the Public Hearing was closed.
The SEQRA Resolution has been submitted by the Planning Board dated March 11, 2002. A resolution can now be rendered by the Zoning Board of Appeals.
There was no additional discussion from either the board or the public.
Barbara Servé will render a resolution.
60 Falcon Trail
Tax #165.9-3-29
Requesting an Area Variance
Code Section 185-113 C (6)
Requiring 15' Side Setback
Chairman, Ed Starowicz opened the Public Hearing for 60 Falcon Trail.
Richard Williams, attorney for the Zoning Board, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Michael Shane presented the application and he didn't have any additional information to add to the application, although he did present pictures to show the shed and location. The neighboring owners didn't have any objections to the location of the shed. He wasn't aware that he needed a building permit.
There were no additional comments from the Board Members or the public.
This is a Type II Action - no further action taken. Local matter, no SEQRA required.
Rufus Falk moved to close the Public Hearing.
Seconded: George Dounce
83 Brook Road
Tax #151.17-2-43
Requesting an Area Variance
Code Section 185-23 C (1)
Requiring a 50' Front Setback
Chairman, Ed Starowicz opened the Public Hearing for 83 Brook Road.
Richard Williams, attorney for the Zoning Board, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Thomas Biedenbach, owner, presented the application for the new addition. The addition will block the addition on the side of the house and that ruins the style of the house. He would like to start construction within the next two months.
G. Dounce asked if there was any other location for this addition.
Mr. Biedenbach commented that he would like to keep the rooflines, and therefore this was the only attractive place to add on.
There were no additional comments from the Board Members or the public.
This is a Type II Action - no further action taken. Local matter, no SEQRA required.
David Rogachefsky moved to close the Public Hearing.
Seconded: Larry Magguilli
26 East Park Road
Tax #151.17-2-14
Requesting an Area Variance
Code Section 185-23 C (1)
Requiring a 50' Front Setback
Chairman, Ed Starowicz opened the Public Hearing for 26 East Park Road.
R. Williams, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Sid Burton, architect, he is representing the homeowner.
- The materials will match the house.
- This addition will hide the one on the left-hand side.
- This addition will not take away the light.
- The older addition is built on a slab and the roof leaks this will be fixed as well.
- The owners are thinking of installing a skylight or at the least just a glass pane in the roof to allow light into the part of house that will be behind the addition.
- The windows will match the windows on the existing house and addition.
- The owner was ready to begin construction and was unaware that he needed a variance.
There were no additional comments from the Board Members or the public.
This is a Type II Action - no further action taken. Local matter, no SEQRA required.
David Rogachefsky moved to close the Public Hearing.
Seconded: Ed Starowicz
3400 Monroe Avenue
Simon's Baby Furniture
Tax #150.16-2-3
Requesting a Flood Damage Prevention Variance
Requesting relief from Code Section 185-106 C (1) (b)
Requiring non-residential construction shall be flood proofed so that the structure is watertight below the base flood level
Chairman, Ed Starowicz opened the Public Hearing for 3400 Monroe Avenue.
David Rowe, Building Inspector, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Stu Chait, architect from Chait Studios, on behalf of Simon's Baby Furniture, 3400 Monroe Avenue, reviewed the application. Planning Board has already granted preliminary approval and the Architectural Review Board has granted final approval for the addition. Mr. Chait stated that the required height for the water protection is 410.8 above sea level and the water protection on the addition will be 12" above the required height.
David Rogachefsky stated that Marty Brewster of the Planning Department received a letter from Monroe County Department of Health dated March 8, 2002 regarding East Branch of Allen's Creek for the 100-year flood discharge.
There were no additional comments from the Board Members or the public.
This is a Type II Action - no further action taken. It is a local matter. The Planning Board prepared a SEQRA Resolution on October 22, 2001.
David Rogachefsky moved to close the Public Hearing.
Seconded: Ed Starowicz
966 Linden Avenue
Pelligrino's Deli/Cafe'
Tax #139.13-2-4
Requesting 3 Area Variances
Code Sections 185-46 A (1) & 185-46.6 D (2) & 185-138 A, which includes landscaped front lawn in front of buildings, parking restricted to side & rear of buildings, and in a Commercial Zone only 2 signs are allowed.
Chairman, Ed Starowicz opened the Public Hearing for 966 Linden Avenue.
R. Williams, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
David Rogachefsky excused himself from this application due to a conflict of interest.
The applicant presented pictures to the board regarding the proposed building. John Caruso and Peter Psyllos owners of Pellegrino's Deli/Cafe' stated that they run a first class operation. They are asking for three separate variances as follows:
Drive through lane in front of the building, this would be used by faxed or phone in orders only, some landscaping will be planted in front of the building.
There will be parking spaces around the side and in the front of the building, some of the neighbors came to the Planning Board meeting and their concerns of the parking spaces.
The owners would like to have three signs on the building one facing the west on Linden Avenue, the other on the front of the building facing south, and the other one on the east of the building so that it can be identified from Washington St., when the code only allows two signs.
R. Falk asked if they considered purchasing the corner parcel and adding this land to the site.
John Caruso commented that yes they looked into it but the purchase price was too high.
The board members stated that the sign from the west on Linden Avenue because the sign on the front of the building would be enough for people to see them. The sign on the front of the building is quite obvious. The drive through is a very much apart of this business it will be dealing with the lunch crowd. How large is this site? What about a walk up for the faxed and phone orders, and move the building closer to the 30' front setback, that way all the variances for except the signage would not be needed.
Applicant stated that it is just under an acre. The drive up window is a major part of their business. The Planning Board already had them move the building in order to plant some landscaping in the front of the building.
Ed. Starowicz asked for additional comments from the board or the public.
There were none.
This is a Type II Action - no further action taken. It is a local matter. The Planning Board prepared a SEQRA Resolution on October 22, 2001.
George Dounce moved to close the Public Hearing.
Seconded: Ed Starowicz
161 South Wilmarth Road
Crown Atlantic
Tax #191.2-1-19 * 191.02-1-27.1
Requesting an Area Variance
Code Section 185-126 (b) (2)
Chairman, Ed Starowicz opened the Public Hearing for 161 South Wilmarth Road.
Dave Rowe, Building Inspector, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Tom Greiner, attorney with Nixon Peabody and agent to Crown Atlantic, presented the application and reviewed the and outlined the benefits to build a 158' tower next to the existing one and removing the existing pole instead of having two cell towers in the same location, as per the Planning Board Resolution dated March 11, 2002. The surrounding neighbors indicated that they would prefer 1 pole of 158' to two poles in the same location. The Planning Board for the towers has required no camouflage; it would be hard to do this. The character of the neighborhood will not be compromised and will not be a detriment to the area. The request is 5 1/5% variance from the code. It is not self created given the topography of the land, and the proposed height would help eliminate the number of towers in the town.
Additional questions asked by the board members are what color would the tower be painted? How long will you need to time of construction? How close are the two towers now?
Tom Greiner said it would be painted just like what was requested by the Planning Board & ARB for the first pole.
The Planning Board has declared a Negitative Declaration for monopole and providers. The tower would help cover the gabs to the north and along the Thruway. The new pole and the removal of the old one will cost approximately $90,000. Once approved it would take several weeks to do all of the construction and demolition of the old tower. The towers are fairly close so that they can construct the new tower then remove the older one and have no interruption to the service they provide.
There were no additional questions from the board or the public.
This is a Type II Action - no further action taken. It is a local matter. The Planning Board prepared a SEQRA Resolution on October 22, 2001.
Ed Starowicz moved to close the Public Hearing.
Seconded: Rufus Falk
773 Linden Avenue
Adult Entertainment Facility
Tax #138.15-1-28.2
Requesting relief from Code Sections 185-53.3 (3) and 185-49
Requiring Adult Entertainment use less than 500' from a residential zoning property line; and requiring restaurant use and non-alcoholic beverage service in a light industrial zone.
Chairman, Ed Starowicz opened the Public Hearing for 773 Linden Avenue.
R. Williams, read the legal notice as published in the Brighton Pittsford Post dated, March 6, 2002.
Richard Williams clarified to the board what they are to be reviewing and determining a decision on. The application that was originally submitted was for an area variance. The Code Enforcement Officer in one of his capacities reviewed the application and looked at the zoning code and made the determination dated January 3, 2002, in a letter to the council of the applicant indicating that a Use Variance not an Area Variance will be required with regard to the establishment of the adult use. The same letter similarly indicates that since restaurant uses are not permitted in the Light Industrial District nor is a bar whether alcohol is served or not are those that also requires Use Variances. It is his understanding that the other issue that originally appeared to need a variance is the impervious surface and but that issue has been resolved, and there would not need to be an impervious surface variance granted. The applicant had 60 days from the date of the decision rendered by the Code Enforcement Officer as to his interpretation of the code and the requested variance. No interpretation of appeal to this board was made; therefore, this board is bound by the decision of the Code Enforcement Officer regarding the interpretation. Before you tonight you have both a Use Variance and an Area Variance application that were submitted by the applicant, I would however, that since you are bound by Mr. Rowe's determination as to the need of the Use Variance only the Use Variance application should be heard at this time.
D. Rogachefsky asked as to what date was Mr. Rowe's determination.
R. Williams clarified the date as January 3, 2002.
Ed Starowicz reviewed the criteria that the board will be looking at as per list shown by overhead to the audience and which is attached to these minutes. The issues on this list is what they will be looking to the applicant to show unnecessary hardship on all of the four issues The applicant has to show proof for all of the permitted uses. If, he is asking the attorney Mr. Williams, if one of those criteria can not met that application has the potential to be denied.
R. Williams confirmed that statement; the applicant must meet all four criterias. Under the applicable New York State law the applicant must meet all four of the criteria set forth in the application, in order for a Use Variance to be granted.
Ed Starowicz stated that the applicant will review the application and then the audience will have the opportunity to come forth with their comments. Try to feed your comments into the criteria as shown for that will help the board when they formulae their resolution some point in the future.
Ryan Fennie, attorney with Hotzberg law firm and he here on behalf of Linden Avenue Enterprises Incorporated the application in this motion. On the agenda he wanted to make a brief clarification, on the agenda it mentions Bart Maimone it almost implies that he is the applicant simply for clarification he wants to note that Linden Avenue Ent. Inc., is the applicant and Mr. Maimone is simply the owner of the property where they would like to establish the business. Secondly, with all due respect to Mr. Williams, I would submit to this board that on February 8, 2002 that the law firm did reply by a letter objecting to Mr. David Rowe's determination that the proper classification of the variance needed in this case was a Use Variance and not an Area Variance. That letter was attached to and submitted with their latest application package for this hearing. Again, that letter was dated February 8, 2002. In second to that, even had they not submitted a written objection to that finding which they did. They have submitted two applications they have submitted a Use Variance application at the request of Mr. Rowe and also for certain uses that they need. They have also submitted an Area Variance application. He would suggest to this board that the board be compelled to consider everything that is put before it, not simply what it considers most relevant pieces. On that ground he wants to go over basically the application. We have submitted an application package, which is required in every instance. It is proper he would like to have it marked and admitted into this hearing so it shows up in the record, and that would be the standard materials. Also, he has an easel on which he wants to show some enlargement of the area. He wants to show the placement of the establishment. As it has been determined that this is a Light Industrial Zone which is the zone to be the one to house an adult use in Pittsford should there be one. I don't think that this point can be argued that this is not a point of law that is already been determined. That it's illegal for the Town of Pittsford to as a matter of prior restraint say that there can be not strip clubs, no adult entertainment venues, no nothing of this type anywhere in our town. There has to be some place that it can regulated time, manner and by place. Linden Avenue Ent. Inc. has been taken great pains to pick a place in that region that has been predetermined by the Town of Pittsford for an appropriate place to but this business. Now he has no doubt that there are many in the audience who would disagree that there is no appropriate place in Pittsford. The issue before this board is whether or not this parcel and this variance that they are requesting is reasonable. Now, he wants to go through the Area Variance specifically, and he would point to the board that the application for Area Variance states specifically and is provided by the town. It refers to the setback distance requirements.
Ed Starowicz interrupted Mr. Fennie to state that the board in only addressing the Use Variance at this time and not the Area Variance. He can review the Area Variance but the board is only hearing the Use Variance.
Mr. Fennie stated the board will consider what it will consider but they should hear all of the information in applications put before it tonight. He did not come here to do battle with the board and he would submit to them and if you refuse to consider the our Area Variance application you do so at your peril. They will appeal to the State Supreme Court and if they even refuse to consider the application I cannot say that you even have much change or prevailing and surviving an Article 78 petition. Having said that he wants this to be apart of the record that if you refuse to consider their Area Variance application I won't make you listen to it.
R. Williams responded to Mr. Fennie's statement and he is correct that his law firm is submitted a letter dated February 8, 2002. In response to Mr. Rowe's letter. That letter was directed to Mr. Rowe in acknowledged receipt of Mr. Rowe's January 3, 2002 letter, and said that the applicant did not agree with the interpretation that Mr. Rowe had made. In addition, the letter made reference to the fact that the applicant was submitting a Use and Area Variance application. Mr. Rowe subsequently did not amend his viewpoint as to whether or not it was a Use Variance or an Area Variance. He thinks it is a real stretch for Mr. Fennie to now say well consider that letter of February 8th to be an application. It was not an application to this board it was not addressed to this board. There are appropriate procedures that are set forth for an appeal to be taken for the decision of the Code Enforcement Officer as to an interpretation matter, and there are certain time limits in respect to those requests. And there was not such application made and therefore this board is bound not by Mr. Fennie or by me but by the Code Enforcement Officers interpretation. Mr. Fennie wants to challenge the validity of your bring bound by that he can certainly bring the appropriate processing at the appropriate time to the appropriate court. For this evening we will leave it at that, now we have noted that you are not hearing the Area Variance and should satisfy your request.
Mr. Fennie proceeded with the Use Variance application starting first with the distance. Assuming for the point for this argument the distance between the residential lot line and the industrial lot line is Use Variance or use issue as opposed to the area between the two. We would submit that it would create an un-necessary hardship on Linden Avenue Ent. Intern that this picticular distance. The distance of 500' was chosen as a buffer zone, don't ask him why 500' was picked out of the air but that was chosen by the legislature as an appropriate amount of space a buffer zone between a residential zone and a light industrial zone. Now we could say that 500' of open space is an acceptable buffer but we also have to agree that a fence running through that 500' at 30' tall would be even a better buffer or perhaps two fences would be an even better buffer. Or perhaps two fences or two railroad tracks running between those two zones would be the best buffer possible. This would create an un-necessary hardship to deny the Use Variance application here because there is no need for the 500' setback in this instance. In this pictular case there is a very natural boundary created or rather a man made boundary as you would have it between these two zones in therefore it is an un-necessary hardship. Obvisouly the business is not open and therefore financial proof to present. For the record he would like to state that I he thinks it is very transparent of the Town of Pittsford to take the position that this is only a Use Variance application. Obviously the criteria that was presented a moment ago are much tougher much stricter that the Area Variance requirements, and I think that pigeon holing this argument into a Use Variance it shows that the true motivation of the Town is to prohibit this use all together. Not just the variance. To the second element the hardship to the applicant is unique because no other proprietor in the district is so limited by the proximity to the residential zone. The area is essentially industrial with no other proprietorships that offer entertainment. No proprietor finds himself prohibited by the law from utilizing his property in a way that is contemplated by the zone. In another words if I had any other type of business in this light industrial zone I wouldn't need a Use Variance in order to run my business, the type of business that is contemplated by the law. Only adult uses would be so limited by this particular set back by this requirement and therefore is unique. Allowing the adult entertainment venue to be operated within the 500' for a residential zone would not change the essential character of the neighborhood. He is talking about the industrial neighborhood. This is a light industrial zone there is nothing but commercial businesses up and down; there are no residences around except for the residences on the other side of the railroad tracks. It's industrial and would not negatively effected by the establishment of the business and the Woodland Estates similarly not be effected and the applicant had no part in creating this hardship. That is certainly one of the major issues and did the board want to hear comments on just the area variance before they go forth with the other issues. Distance requirement he thinks that most of the people that are there tonight will be addressing the distance proximity to the residential zone, should he stop here and allow the public to speak or continue with the rest of the application.
Ed. Starowicz stated that he can finish application and then the board will have the opportunity to address the applicant and then the public will have the opportunity to speak.
Mr. Fennie continued with the rest of the application. The second Use Variance application as noted in the letter of February 8th, this is a matter of some disagreement between themselves and the Town Board. Our position in creating a adult use zone the legislature contemplated some light beverage service and some light food service, that every club of this type has to have some ability to serve even if it is just finger foods, beer nuts or whatever it is. Some ability to serve food and drink on a limited basis in order to survive. Therefore, our position is not that a Use Variance is required in this instance because we do not plan to offer more than what is contemplated by the use. He realizes that this is somewhat ambiguous because they haven't determined what that yet. What we contemplate is a juice bar, and as the application lays out we are willing to conform their plans for what the serve as food and drink to the rules as to whatever the Board determines are the limits of restaurant uses. It is clear that they can not have a restaurant their position is that beer nuts do not make a restaurant and that somewhere between the two there is a happy medium. They would like to work with the Town in order to figure out a way to find this happy medium. But in far as any food or beverage service might require a Use Variance they have submitted the application and the fees.
R. Williams stated that there is a Use Variance necessary, I don't think that this board has any discretion what so ever to set standards, you are the Zoning Board of Appeals. You are not a Planning Board, this is not a site plan or special permit, where you can set certain conditions and perimeters with regard to the use. Your charge is to either allow a variance so that an unauthorized use can be established or not. Yes or no depending whether or not the four tests has been satisfied. His understanding of the Light Industrial District is very very clear that restaurant uses are not permitted period. Bars are not permitted period. Adult uses: i. e. adult book stores, and adult entertainment establishments are potentially permitted again within the perimeters of the requirements including the 500' requirement. He would respectfully submit that simply by having naked people you don't then authorize an other wise a permissible use. So that just because that is nudity doesn't suddenly mean you can have a restaurant, or a retail establishment with literally naked employees. He thinks that it is very clear under the code that they will need to get a Use Variance to establish a use that serves food. Because there it no food or drink service allowed in the Light Industrial District.
Ed Starowicz the new code was passed in 2000?
R. Williams, yes the Light Industrial District in 2000 was revisited and there were a number of changes there were made including relooking at all of the various 40-50 allowed permitted uses within the Light Industrial District, and at the point in time the adult use was added. There is only reference to adult bookstore and adult entertainment there is no restaurant or bar either without or as part of the adult use mentioned anywhere in the code.
Ed Starowicz asked from the applicant clarification of what is a juice bar? Are you removing the alcohol portion of the application from this presentation?
Mr. Fennie stated that there was never a mention of alcohol as a part of this application. They have never applied for an alcohol permit, he is sorry for the confusion.
E. Starowicz clarified that the issue has been the food and drink service.
Mr. Fennie commented that the Town's position seems to him that there can not be one drop of liquid or morsel of food served else you must have a restaurant. If the zoning code has meant to say that there should be no food and no drink they could have chosen those words. As a matter of statutory construction they are taught in school that the words that are chosen means something and a restaurant and that a restaurant necessarily means something. It is not having a break room in your business so that your employees can eat, it's not having the ability to have prepared some food, and it is a restaurant where it's proposed primary use is to serve food for profit. That would be a very incidental part of this particular business and without ability to serve some food or drink it would not survive, and he thinks that this was contemplated by the legislature. But to submit the application in so far as this board may need a Use Variance in order to grant them what they want the limited ability to serve food and drink I would submit that the applicant would be deprived of all economic benefit of the property under the current regulation because without some ability to provide some food or drink even at a minimal level the establishment cannot be expected to survive as an entertainment venue, and clearly that is a permitted use in this zone. Such services are normal and customary in any type club. Financial records relevant to the claim don't exist so they can't be produced. The hardship to the applicant is unique because no other proprietor in the district or neighborhood is so limited by the need to serve some food these are all industrial spaces. Again, this is the only use that invasions some manner of entertainment of people coming in and sitting around for any other than work everything else in this neighborhood is commercial and industrial and doesn't need to serve food to survive. They are uniquely effected in that manner. Allowing limited foodservice would not the essential character of the neighborhood. And the applicant had no part in creating the hardship. All of that is basically the same for the Use Variance that they have requested for light beverage and again it is non alcoholic. We need to serve some manner of food and drink in order to have any type of club. He thinks it is unique to them because no one else has this particular difficulty in that zone. And serving juice in the neighborhood would not change the essential character, and they had no part in creating this hardship. In so far as the initial element of that claim goes, that is what they presented to the board. Mr. Fennie indicated that they have visual proof as to the location of the club in relation to the neighborhood he would like marked as exhibits for the hearing. There is almost visibility of the building, which would house this adult entertainment venue from Woodland Estates. And they centered around this property because it is the closet one; it's the one they need the variance from whether is be a use or area variance. The pictures show an overgrown space of land separated by the railroad tracks. There are two lines and separated by two fences. They pictures show that there is almost no visible line from any point from Woodland Estates to the building itself and at which point that you can see it, it would be only a corner of the building. The noise that is created by the railroad itself covers everything in the neighborhood including any music or any sounds that are coming out of this building there could be absolutely no effect of noise or any type of noise pollution from this type of business over and above what's created by the railroad already. He has completed his presentation.
Questions from the board:
- Is it the owner of the property or the business?
Mr. Fennie stated that it was the business.
R. Williams the application is correct it is typical that the owner is not the one who will be operating the business but the owner has consented to the application since the variance is not granted to the people it is granted to the land. The variance is application has made by the proposed operator on behalf of the land.
R. Williams addressed the application. With regards to the first test Mr. Fennie, can you speak to the issue of whether or not your position with regard to the various uses to the permitted uses that are allowed under Code Section 185-49 A - H? What is your position with regard to the viability of that lot to maintain financially any other uses that are allowed in the Light Industrial District?
Mr. Fennie stated the Mr. Williams question is why he can't meet the first test. The reason the Town of Pittsford has chosen to present this as a Use Variance application is because they know that there is all sorts of other uses in this are, which are at least viable. There is an existing business in this building right now Ricci's Towing and even though this business isn't doing a gangbuster business it is certainly viable. So right from the beginning the Town of Pittsford understood that this was a test that could never be met because we could never show that there was no other business that could be operated in this zone. We are requesting that the board view this element of the Use Variance test in terms of its amicability to adult uses, because of its amicability to all of uses in this zone is irrelevant. Nobody else would have the same type of restrictions that we would have.
Ed Starowicz Ricci's is or is not doing a gangbuster business.
Mr. Fennie said that they are not doing a gangbuster business but is a viable business. The business is open and therefore you can say it is a viable business and so in order to meet that test you would have to essentially say that why this is an improper test because you are asking for a different use that is contemplated. You can to any thing else other than this other use that they want the use that's not contemplated in the zoning law, their use is contemplated in the zoning law and therefore that is why they don't need a Use Variance.
Ed Starowicz stated that his is a permitted use right?
R. Williams commented that Mr. Fennie acknowledges the fact that the various uses under A - H, he recognizes his question for exactly for what it was, they are viable uses and this property could be used for one or more items set forth in A - H and therefore he can't possible satisfy test number one under the Use Variance application. Is that not correct?
Mr. Fennie agreed with Mr. Williams in this statement.
R. Williams addressed Item #2 of the Use Variance application area you familiar if there are any other lots in the Light Industrial District that would also need a variance from the 500' distance requirement? Or are you the only one?
Mr. Fennie commented that any property located along Linden Avenue along the portion where there would be traffic to sustain a business of the type that they would like to put in. Anybody would need the type of variance that they are requesting. He doesn't have engineer's figures regarding that. What he has is a tool that has been created by his contractor is a map to scale that show at any point that you would like to see that it would touch one of these residential districts down here, and would need the same type of variance. From the lot line from Ricci's Towing if you attached a line to the back lot line of 773 Linden Avenue you see that it is about 200' or 215' from any residential district below the rail line.
David Rogachefsky asked about going to the east on the north side of Linden Avenue?
Mr. Fennie this is the entire zone for the Linden Avenue Light Industrial District.
Harold Filbert says there is Linden Park that extends by East Rochester, it industrial there and some residential.
David Rogachefsky mentioned the properties by the Del Monte plant with a lot of frontage on the south side of Linden Avenue, and the residential is much further east. in the Village.
Mr. Fennie commented that that was correct and if he could read into the question a little bit he thinks that the question David is asking if there is any other place suitable inside the industrial zone might they go there, or should they be able go there as opposed having to come to the Board for a Use Variance. Even if there is another plot it's not necessarily say it is a viable plot if Del Monte owned it and I've heard through the grape vine that they are opposed to their application, probably would say defiantly would not make this available for their use. The plot at 773 Linden Avenue is the only one Linden Avenue Enterprises Inc. was able to obtain in an economic and viable way for use as this business. He didn't know of any spots inside the zone that are without being within 500' of a residential zone.
David Rogachefsky question was he thought that Mr. Fennie was trying to make a point that there was not any other place on Linden Avenue that is not within 500' of a residential zone.
Mr. Fennie doesn't think there are that could be economically viably developed into a business like this, there are some places that are off the road that have no power that would have to be completely landscaped and a building would have to be built as simply as to one that just needs to renovated. It's not to say that there is no other options there are no other economically viable options.
R. Williams requested that Mr. Fennie expand on his comment that they had no part in creating the hardship, which is the fourth task.
Mr. Fennie the hardship is created by the existence of a zoning regulation, which they can not meet due to the distance requirements and setback requirements which they did not have any part in writing.
R. Williams this is an arguementive question. If I take that argument to a very logical next step you would make the same argument if you wanted to establish this use within a residential district. That it is not a self created hardship to put an adult use within a residential district because you didn't enact the zoning code. Correct?
Mr. Fennie that is absolutely not correct. But you have demonstrated his point. If I wanted to go to a residential zone and I wanted to put an adult entertainment there then I would need a Use Variance. Because it would not be a contemplated use. So he would come to us and say please let me but my adult entertainment venue in the middle of the neighborhood. You would say didn't you know that this wasn't zoned for adult uses, he would say absolutely and they you came and got this spot regardless and you created the hardship, this is a zone that has a permitted use for this particular type of business. When this business owner came in and negotiated to option this piece of property it was negotiated that this was a permitted use. That there would be not need to get a Use Variance therefore; he did not create this hardship. It's a hardship that is created by Mr. Williams.
R. Williams wanted to clarify this statement. The self created test is essentially designed is to deal with the situation where the applicant knows going in that they need a variance, not with standing that have taken the step of either purchasing the property and trying make an established use. It's the one test frankly that is directly both in the use and area context and I say as an side, within the Light Industrial District and under the potential adult use I presume the applicant was aware of the 500' restriction before the applicant went further with this potential application.
Mr. Fennie stated that the applicant did know that it was less than 500' and if this board chooses to take Mr. Williams interpretation that this is a self created hardship we would say that on the Area Variance application this self created hardship is a matter for you to take into consideration but does not necessarily bar you from granting an area variance. However the Use Variance situation, Mr. Williams, has made certain that if we cannot meet this one element of the test that we can not be granted the Use Variance and again that is why they have pigeon holed this argument. If Linden Avenue Ent. Inc. did create a hardship in terms of any variance needed it was with respect to the Area Variance. It simply is not logical to conclude that Linden Avenue Enterprises should have foreseen the tactic taken by the Town and said well I should have to have a use variance stead of an area variance. The area variance was contemplated the use variance quite logically was not.
R. Williams would like to end by saying Mr. Fennie on several occasions essentially accused the Town and pointed at himself in making an interpretation based on a specific desire with respect to a specific application and that's not true. The determination made is that use variances apply to variances from regulations of use, area variances relate to regulations as to distance and area. In fact the 500' restriction in this case is a regulation which restricts the use itself not a detail with respect use not a height not a side or front setback with regard to the shed or a particular building, but the distance that use itself including the all aspects of the lot must be from this case from a resident. So he thinks that the determination that the Code Enforcer made is a logical one and was reasoned out, not simply made somehow or other to prestigious this particular applicant.
Ed Starowicz asked:
As you went though the process of an available building, Ricci's is moving, but they are making money.
And the former car dealership which was in the same building and displayed outside.
Mr. Fennie stated that he has no idea if Ricci's is making money and also no knowledge that there may have been a car dealership at this location.
Ed Starowicz would like to know who could tell him. He would help him to formulate some direction here on the relationship of reasonable return that he looking for because if Ricci's is making money and if Ricci's is moving because he is being evicted by a sublease group he would like to know that.
Mr. Williams has already acknowledged that he can not meet Test #1 that there are many viable businesses that could go there, and is objecting to the context of a use variance but understands the within the context of a use variance he cannot possibly meet Test #1.
Ed Starowicz commented or Test #4 the applicant cannot meet.
Mr. Fennie doesn't concede that at all. When they entered into this transaction it was not with the understanding that a Use Variance would be required.
Ed Starowicz, the owner has the ability to lease to other operations. At the present time there is one tenant that is responsible for the majority of that with an open smaller section. He sees this from a standpoint of a financial, which leads into the first part that we're are saying that it can't be meant, but he thinks from that standpoint you are self creating the hardship through the ownership of the property subleasing to your group at least that is the way he looks at it.
Mr. Fennie stated that he disagrees with Mr. Starowicz interpretation, but again he has already stated his point.
Ed Starowicz asked for additional questions from the board.
There were no additional questions from the board members.
Ed Starowicz opened it the discussion to the public.
There were several clergy, property owners of the businesses and residents from the surrounding properties and communities that spoke against this applications for several some of which is as follows: The proposed adult entertainment club is to close to residential districts, the railroad tracks and fences are not enough of a buffer, the character of the neighborhood would be changed, the neighbors who have children would fear for their children's safety, some of the residents feel that this is a self imposed hardship and that they could find a more suitable locations elsewhere, these establishments tend to lead to spousal abuse, and it undermines marriages and it also increases crime. They also felt that it would lower the standard of the community. They claim that the trains that go by would cover the noise created by this establishment but the trains only last for a couple of minutes at a time and then they are gone. The trains do not run all day long. Photography should not be allowed into the community at a location that is less than 500' from a residential district.
There were additional letters submitted to the Zoning Board of Appeals opposing this application, which are now apart of the record.
This is a Type II Action - no further action taken. Local matter, no SEQRA required.
This hearing remains open.
RESOLUTIONS:
60 Falcon Trail
Tax #165.9-3-29
Requesting an Area Variance
Code Section 185-113 C (6)
Requiring 15' Side Setback
Discussion:
Rufus Falk is concerned about the exact distance from the lot line, whether or not it is 5' or located directly on the lot line. Has the homeowner sited it properly on the property? Can they make it as a condition that the building department will be responsible for determining the location of the shed?
Barbara Serve' if they were to sell the house how would this work.
Rich Williams they seller would have to do a survey of the property and show the location of this shed.
George Dounce moved to grant to the owners of 60 Falcon Trail, their request for an Area Variance for the already constructed accessory structure within the 15' side setback.
Seconded: David RogachefskyThere were no additional comments from the board.
Roll Call: All Ayes
A resolution was passed granting approval for the already constructed accessory structure allowing a 5' side setback.
See resolution attached for Findings of Fact and Special Conditions.
83 Brook Road
Tax #151.17-2-43
Requesting an Area Variance
Code Section 185-23 C (1)
Requiring a 50' Front Setback
Discussion:
R. Falk the owners' point is well taken if he puts it on the rear of the house he looses light and doesn't really blend with the architecture of the house. It is his only option. This is a corner lot and for this addition it is the best location.
George Dounce moved to grant to the owners of 83 Brook Road, their request for an Area Variance for the construction of an addition within the 50' front setback on the side of the house.
Seconded: Barbara ServéThere were no additional comments from the board.
Roll Call: All Ayes
A resolution was passed granting approval for the addition to be constructed within the 50' front setback allowing a 30' front setback. Completed construction date December 31, 2003.
See resolution attached for Findings of Fact and Special Conditions.
26 East Park Road
Tax #151.17-2-14
Requesting an Area Variance
Code Section 185-23 C (1)
Requiring a 50' Front Setback
Discussion:
No discussion for this application.
Barbara Servé moved to grant to the owners of 26 East Park Road, their request for an Area Variance for the construction of an addition within the 50' front setback.
Seconded: George DounceThere were no additional comments from the board.
Roll Call: All Ayes
A resolution was passed granting approval for the addition to be constructed within the 50' front setback allowing a 45' 5" front setback. The completion date will be December 31, 2003.
See resolution attached for Findings of Fact and Special Conditions.
4245 East Avenue
Nazareth College
Tax #151.14-1-1
Requesting an Area Variance
Code Section 185-39
Requiring all structures shall not exceed 30' in height.
Discussion:
There was no discussion regarding this application the hearing was closed on February 18, 2002.
Barbara Servé moved to grant the owners of 4245 East Avenue, Nazareth College, their request for an Area Variance, which will allow the construction of the grandstand and guardrails to be over the 30' height requirement.
Seconded: Larry MagguilliThere were no additional comments from the board.
Roll Call: All Ayes
A resolution was passed granting the requested Area Variance to allow the construction of the grandstand and guardrails for the new athletic building to be 4' 6" over the required 30'height as per the Town code. The Area Variance granted shall not exceed 35' in height. The completion date will be December 31, 2003 as per plans submitted by the applicant.
See resolution attached for Findings of Fact and Special Conditions.
3400 Monroe Avenue
Simon's Baby Furniture
Tax #150.16-2-3
Requesting relief from Code Section 185-106 C (1) (b)
Requiring non-residential construction shall be flood proofed is that the structure is watertight below the base flood level
David Rogachefsky moved to grant the owners of 3400 Monroe Avenue, Simon's Baby Furniture, their request for an Area Variance, which will allow the construction an addition to the existing building within the 100-year flood plain.
Seconded: Larry Magguilli
Roll Call: All AyesA resolution was passed granting the requested Area Variance to allow the construction a 5000' sq. ft addition within a flood plain which will be constructed watertight below the base flood elevation with the walls substantially impermeable to the passage of water.
See resolution attached for Findings of Fact and Special Conditions.
161 South Wilmarth Road
Tax #191.2-1-19 & 191.02-1-27.1
Requesting an Area Variance
Code Section 185-126 (b) (2)
Discussion:
George Dounce would rather see one tower at 158' than two towers.
Barbara Servé would not want to set a precedent for other towers in the town.
R. Williams stated that ZBA does not set a precedent the Planning Board does.
Rufus Falk moved to grant the owners of 161 South Wilmarth Road, Crown Atlantic, their request for an Area Variance, which will allow the construction of a cell tower to exceed 8' over the allowed 150' height requirement, instead of constructing 2 tower at 150' in height.
Seconded: David Rogachefsky
Roll Call: All Ayes
Ed Starowicz voted No.A resolution was passed granting the requested Area Variance to allow the construction of a cell tower to be 8' higher than the allowed 150' as required by Town of Pittsford Code.
See resolution attached for Findings of Fact and Special Conditions.
966 Linden Avenue
Pelligrino's Deli/Cafe'
Tax #139.13-2-4
Requesting 3 Area Variances
Code Sections 185-46 A (1) & 185-46.6 D (2) & 185-138 A,
which includes landscaped front lawn in front of buildings, parking restricted to side & rear of buildings, and in a Commercial Zone only 2 signs are allowed.
Discussion:
Planning Board has given Preliminary approval for the drive through window.
The members agree that two signs are adequate.
The rush time would only be 2-3 hours through the lunch hours.
They would like to see a redesign to the site plan.
They are requesting that the Planning Board take another look at the site plans.
OTHER ITEMS:
- REVIEW/APPROVAL OF MINUTES:
February 18, 2002 - Minutes are being reviewed.
March 6, 2002 - Ed Starowicz moved to accept the minutes as written.
Seconded: All Ayes - POINT PERSONS FOR APRIL 15, 2002 MEETING
- 20 Silco Farms, Area Variance Peter Webster
- 3317 Clover Street, Area Variance Rufus Falk
- 19 East Street. Area Variance David Rogachefsky
- 20 Silco Hill, Area Variance George Dounce
Ed Starowicz moved for adjournment at 11:00 p.m.
Seconded: All Ayes
Respectfully submitted,
Sandie Freitag
Zoning Secretary
OFFICIAL BOARD MINUTES ARE ON FILE IN THE OFFICE OF THE TOWN CLERK