The Regular Meeting of the Zoning Board of Appeals of the Town of Van Buren, held at the Town Building, 7575 Van Buren Rd., was called to order at 7:30 p.m. All present joined in the Pledge of Allegiance to the Flag. Roll Call:              Robert Cleverly                 present                         James Bowes                             present                         Ronald Abold                            present                         John Virginia, Chairman         present                         Laura McBurney, Vice-Chair              present Also Present:           Vera Cavallaro, Secretary                         Ted Spencer, Attorney                                                                          MINUTES October minutes were approved as is. Motion         Mr. Abold moved to accept the October minutes as written, seconded by Ms. McBurney. There was no further discussion. Motion carried; unanimously Mr. Virginia waived the reading of the Public Notice. RIVERIDGE DEVELOPMENT LLC River and Daboll Rd. Tax Map Parcel ID# 045-01-01.2 AR-80 Zoning District Mr. Robert Ventre was present to address the Board. Mr. Ventre said that the project is over 3 years old and has been going through the Planning Board and also has been going through various changes in the process of this subdivision on River Rd. The purpose of the appearance before the Planning Board is to develop these 144 acres with 83 acres under present development. Originally the whole 144 acres was planned to be developed but because of the wetlands and the issues of getting through the wetlands with roads the decision was made to do this in two phases and the first phase involves 27 lots for residential development with zoning being AR-80. The request for variances come by reason of the fact that when this process was started the Town did not have the new code and the new code was passed in June of 2007 and at that time what changed was lot depth requirements, minimum and maximum, and therefore what they had done obviously wouldn't work and that is the need for variances but the requirements that the Town has now are a 250ft minimum side line lot depth and a requirement of 1ft for every 2½ft of frontage and depth and it can not exceed that amount. Mr. Ventre said that those are very strict perimeters and they are fine within a comprehensive plan but the problem they have is when the Town enacts a comprehensive plan and a new zoning code whatever district they are working in it doesn't work for every parcel. Zoning isn't that perfect and there is going to be a lot of parcels that are configured so that it doesn't work, some parcels have contours that are different which won't work and that is the reason why years ago the legislature put in variances in order to solve the imperfections in zoning. If the Board looks at this parcel strict area requirements of 2½ to 1 are very difficult when they are working with a curvilinear Seneca River boundary and not a rectangle but something less that a rectangle in a very short distance in between and thereby necessitating the problem which is that they can not comply under any reasonable circumstances with those requirements. Mr. Ventre said that there are seven lots involved and he believes it to be 6. Lots 26, 24, and 22 are the 3 areas where the variances are required and each lot exceeds the 1 to 2.5 lot width to depth and in this case it is 787ft and they have 203ft so the Board can see it exceeds the maximum lot depth by about 100ft and they have that in each of these 3 cases. There is no way of remedying this and it is very difficult to work with something like this but the whole fact of the matter is if they move lot lines one way the Board will notice that they have a deep cliff so the development of that area is very limited because of that cliff and as they move towards the other side all they do is create more non conforming lots in the area down below and that happens every place. Mr. Ventre said that at one point in time they attempted to take the road out at a different spot but the County said no and the County wanted that road to line up with Daboll Rd so the road is exactly where it has to be and if they move it back to try to resolve some of the lots by making them less deep and conforming they will create a problem with the opposite 3 lots. It is not their desire to bypass the Town code it is the problem with the land and that is why they are asking for variances. Mr. Ventre said on the other two lots they have a 177ft side yard and if they move the road they will have some vacant land or they are going to have it right on the Seneca River and then they would have a lot line that is too large. There is nothing that can be done with that because the one parcel is not part of the parcel that they want to develop so therefore that does not meet the 250ft minimum. Mr. Ventre said if they go down to the other two lots they have a similar problem with that being 260ft and they are operating off of a cul-de-sac which makes it extremely difficult. On one lot they have two public roads and if the other road becomes the front yard then that lot conforms because then the side become a rear lot and by the Town's definition it becomes the front yard so that gives them two lots that are substandard. So they have 6 lots in excess or substandard out of 27 lots. Mr. Ventre said that this will not be detrimental to any adjacent properties or alter the essential character for the development of the neighborhood and as he understands it they have the Seneca River to one side so there is not a neighborhood there and there is Lysander on the other side and if the Board looks across the River they would see 50 to 60ft lots that have been there for many years and were developed well before Van Buren began their development so this certainly will never impact Lysander. On the northerly side they have a vacant parcel which he understands wraps around and comes all the way down southerly and as he understands it the parcel may remain vacant, it is substantially wetlands and he thinks it was bought for hunting. If the Board looks to the other side they have a home or two there, vacant land, and then they get to Jack's Reef. There are no neighborhoods to impact and the only neighborhood to impact would be their own so they are not going to destroy any other neighborhood and further almost all the neighborhoods in the Town right now don't comply because this is a new law. The corn field would be the ideal situation for the Town's present regulation because if they put two roads in and made it a U shaped road they would be able to get compliance all the way around and the reason why is because it is almost a square and that is when those numbers work, they don't work when they have virtually only enough room for a lot line and a curvilinear river and a curvilinear road. They don't have a feasible way of curing the problem and in all honesty they certainly would like to but at the same time there is a necessity for a certain level of lots considering the amount of road that they have to put in for this. Mr. Ventre said there are no physical detriments and with environmental the drainage works, they have already established their drainage, swales, and prepared a SWPP plan and there is apparently no problem with drainage and this is an easy place to drain. Short of that there aren't any other environmental concerns that should affect this Board and he knows it is rare within a variance application and the Board probably hasn't heard many. Mr. Ventre asked if it is substantial; substantial is a funny part and the courts have talked about substantiality and substantiality doesn't necessarily mean that anything that hits a certain percentage is substantial. An example would be if they had 100ft side yard requirement and they vary at the 50ft the they have done 50% but someone is still 50% away from the side yard now if they take a 10ft side yard and vary it 50% then it is 5ft and that is close so 5ft might be substantial and the 50ft might not be substantial. So here these lots are a little longer but for all intents and purposes what is it going to do to anything to this area that they are a little longer. It is not unusual for river lots and the purpose of the code was to prevent spaghetti lots going either way and that is not what has occurred here by its own need for this particular drainage easement which has to be there that is the place that they need the depth and the fact that they have a lot line here that is a lot smaller than 250ft doesn't change the fact that these lots comply in every other way and they are not going to affect anything. When this develops he can assure the Board that if that lot is 250ft deep it will be worth just as much as the other lot. The zoning code works in 89% of the Town's zoning district but it just doesn't work every place and that is what they are saying here. Mr. Ventre said is this self created; the land is under contract but even if the Board wanted to consider that when they entered into this the code wasn't there so whether they would have entered into a contract if they had seen the new code might be a different story. A self created hardship as the Board knows is not a bar as it is to a use variance, it is not a bar to an area variance it is just one more thing to weigh and balance when they get there. Much of this is inconsequential because this land is very unusual and it warrants that they be relieved from some of the burdens on these 6 or 7 lots. Mr. Virginia asked about lot 27 and said that he understood that this was going to be a phase one phase two project and now it is no longer phased so now they have lot 27. Mr. Ventre said the reason why they didn't proceed is because the process with wetlands if they are going to cross them is a lengthy process and that is why they stopped at this point in time. Mr. Ventre pointed out to the Board that in lot 27 they have a better configuration and chances are they will not be any requests for variances. Mr. Virginia said the plan that is in front of the Board right now does not say phase 2 it says lot 27 so that is a non-conforming lot. Mr. Ventre said that they will be glad to mark that phase 2 and there is no intention to create that as a building lot. Ms. McBurney said in order for the Board to continue the Board needs to consider that as a lot for reasons that the Planning Board went into great extent as to why that needs to be a part of this project and not a phase one and phase two. There was lengthy Planning Board discussion about phase one and phase two and if it was going to happen or not. At this point it is a non-conforming lot. Mr. Spencer said that he hadn't been at the Planning Board meeting so he may be wrong but he knows this proposal has gone through a couple of evolutions but his recollection from what he had read not to long ago was that it was going to be a 26 lot development for residential lots and the balance of the property was just going to be the balance of the property there wasn't a phase two. Mr. Ventre said that the Board then has tons of non-conforming lots in the Town if they consider that one lot existing prior to any attempt to subdivide and that would mean that no one ever is going to get to subdivide in the Town of Van Buren. It is a non-conforming lot but there is no way to develop the entire parcel and it is an accepted practice in every Township and under the State codes to develop in phases. There is no intention to build a house on that lot but that is intended in some point in time to go to a phase two which means the Planning Board is going to have all control over phase one as it will in phase two. Mr. Virginia said that the zoning officer feels that lot 12 is non-conforming. Mr. Ventre said that there can only be side yards that emanate from lot frontage and that is the Town's definition so they have a triangle lot with two side yards and both of them exceed 250ft. The lot frontage is determined at the building line which is 60ft back and they are well over. Mr. Virginia said there are 27 lots and if they take out 12 then they have 8 lots that are non-conforming. The Board discussed which lots needed variances. Mr. Virginia read a letter written by the Codes Officer in which it stated that lots 1, 3, 12, 14, 19, 22, 24, 26, and now they need to add lot 27. Mr. Virginia said that is a third of the property and he believes that to be substantial. Mr. Ventre said substantiality is not measured necessarily by a percentage it is measured by what this Town does with the knowledge that this parcel can not comply with this regulation and that is the supreme reason why there is a variance procedure. There is no way of correcting this and the Board can send 5 engineers down there and move the lines left and right and they are going to come up with lots that don't conform one way or another. Mr. Virginia said that they are always going to have lots on this particular project that are non-conforming what he is saying is that they could have less then 9. Mr. Ventre said that he thinks that they have 8 and the Board is only calling the one a non-conforming lot but it is not going to be developed and they will stipulate that it is not a building lot. Mr. Virginia said then they still have 8. Mr. Ventre said one more or one less doesn't matter, substantiality is are they asking for more then anyone should be entitled in these circumstances and they are not and if they could do it with 2 or 3 lots they would but they can't move the road and they can't move the river and they can't create land and no matter what they do and anything they move it creates other lots that are non-conforming. Mr. Ventre asked what real harm does this do to the Town of Van Buren when it has a very irregular piece of land on the Seneca River to do what they have been doing for time and memorial and they aren't going to find a piece of land identical as that, they may find some that require two lots or some that require 10 lots but that is because when a Town passes a zoning code the Board can't possibly look at every piece and think it will fit and that is why they are here and the State gives them permission to. Mr. Spencer said that the Board should probably have the applicant or the applicant's attorney submit something to update the application. The original application identified certain lots and the list is considerably different from what it is now and this will also need to go to the County Planning agency for their mandatory review and there is a SEQR Determination pending. The Planning Board adopted a resolution declaring itself lead agency for the coordinated review and he knows the applicant from what he recalls at the November meeting of the Planning Board submitted some information to focus on what SEQR issues the Planning Board was concerned with so they can make some progress. Mr. Virginia said that his understanding is that the Planning Board and the applicant have had a couple of workshops on the SEQR. Mr. Spencer said that he knows there have been a couple meetings and there have been issues about whether they should or should not do it and the Planning Board has decided to and they have narrowed it down pretty much so the process should go smoothly and quickly now that they are getting focused to what they want to see. Mr. Virginia said that they will have to continue this until all these matters are taken care of. Mr. Ventre said that they can't proceed in the Planning Board until the Zoning Board makes a decision. Mr. Virginia said that the Board can't proceed until they get comments back from the County. Mr. Spencer said that he will check on the SEQR issue but the Board has to wait until County comments come in or the County Planning Board has 30 days to review it and if the Board is at a point that the Board thinks that the proposal is going to proceed forward then the Board should get this down to the County and get the comments back so the Board can deal with the other issues simultaneously and make some progress on this and the Board should probably check with the engineer on the drainage issues and he thinks Mr. Ventre indicated that some work has been done and he presumes it has probably gone to Mr. Billings for some review. Mr. Mastroianni said with the drainage issues that are on lot 12 the gentleman who owns the rectangular lot was concerned with drainage across that whole area and that gentleman's property. Basically the water comes from that gentleman's property and floods onto their's. They are showing a structure in the middle of that which will convey around and drain to lot 25. The Board and the applicant discussed the drainage. Mr. Virginia asked if there was anyone that wished to speak either for or against this matter. No one spoke. Mr. Virginia continued the Public Hearing until December 17, 2007 at 7:31pm. JR CLANCY 7041 Interstate Island Rd. Tax Map Parcel ID# 56-03-07.1 IND Zoning District Mr. Virginia waived the reading of the Public Hearing. Mr. Roger Whelan was present to address the Board. Mr. Whelan said that JR Clancy makes stage and rigging equipment and they have been at this site since 1976. They keep it well landscaped, clean, and very environmentally friendly and they have introduced a couple new product lines and they need to bring back some of their fabrication that they outsource even out of the state to be more competitive with their competition and they would like to bring that fabrication back there. They have to assemble these long rigging equipment that goes into these theaters and they need the space to do that so they can test it all before they ship it out and package it. Right now the manufacturing building is right in the center of the property and it meets the front yard setback even with the addition. The rear yard unfortunately has a 150ft wide easement that the Niagara Mohawk power lines come through the back and they have no place to expand that way. The parking lot is on the east side so the only place that they have left to expand is right there and the type of equipment that they are going to relocate from these out sources and the type of new products they are offering they need a building that a crane could cover inside a 50ft crane runway so the building has to be 52ft wide in order for them to accomplish that. Mr. Whelan said right now the setback on that side of the property is called by Town regulations to be 25ft and they are asking for a variance of 20ft. On the opposite side they have 67ft versus the required 25ft and in the rear they are well beyond that but they can't build anything back there because of the easement. There will still remain a green mowed area with a slight swale in it and it will drain back the way it does presently today. The adjacent property is Meyer's RV Sales and Meyer's parks vehicles all over the lot and there are no buildings on that side of the property and Meyer's has their building on the other side of the street so there are vehicles parked right up to the property line on this side. Mr. Spencer said one of the issues that the Board should be aware of is at least from the map it appears the proposed addition will sit in the middle of an existing drainage easement which he presumes runs for the benefit of the Town whether the Board approves the request for a variance is one thing but he presumes the applicant is aware of what existing easements are along that side of the property. Mr. Whelan said that there is storm drainage from the street that goes into the man hole and there is a buried pipe that goes back to Route 690 and that is on the Agenda for tomorrow night's meeting with the Town Board. They spoke to the Town engineer and Town engineer sees no issue with relocating that. Mr. Spencer said any approval the Board gives should just note that it would be the applicant's responsibility to address the compliance with or relocation of existing easements just so the applicant doesn't walk out of here thinking that they have been given the ok to move the easement because this Board doesn't have that authority. The Board discussed conditions being placed on the variance, lot coverage and where the applicant would be moving the drainage. Mr. Virginia asked if there was anyone that wished to speak either for or against this matter. No one spoke. Mr. Virginia closed the public hearing. Ms. McBurney proposed the following Resolution: J.R. Clancy, Inc. of 7041 Interstate Island Road seeks an area variance from Section 200-40 of the Town of Van Buren Code related to the side yard setback requirements for a proposed expansion of an existing building.  The property is located in an Industrial District and is identified as Tax Map parcel 056-03-07.1.  Applicant proposes to enlarge an existing manufacturing facility.  The Zoning Code requires a total of 25 feet for the side yard setback in an Industrial District.  J.R. Clancy's proposal provides for a total of 20 feet setback on the west side property line. Roger Whelan spoke in favor of the application.  He described the plan and the circumstances under which the expansion is to be constructed. The Town of Van Buren Planning Board recommends approval of the requested area variance based on the existing lot layout and conditions in the area.  Applicant has acknowledged its obligation to resolve any issues related to existing easements along the west property line as a condition of proceeding with the proposed expansion. In support of the application, applicant submitted an Application for Variance, Agricultural Data Statement, Notice to Surrounding Property Owners, Short Environmental Assessment Form and a Site Plan prepared by Whelan & Curry Construction Services, Inc., dated October 25, 2007 showing the proposed addition. Based on the foregoing, the Board resolves as follows: 1.      This matter is unlisted under SEQR as it involves a setback variance related to an industrial use. The Board declared itself lead agency, a single agency uncoordinated review for this project 2.      It is determined the requested variance will not produce any undesirable change in the character of the neighborhood and will not be a detriment to nearby properties.  The proposed addition will be located 20 feet from the west side property line.  Due to the lot's topography, existing improvements and other physical limitations, there was no feasible method to pursue other than the area variance so that the improvements are located consistent with the site.  The proposed variance will not have an adverse effect or impact on the physical environmental conditions in the neighborhood or district.  Neighbors express no objection to the variance.  The benefit to applicant outweighs any detriment to the neighborhood or community as a result of granting the variance. 3.      A variance is granted to allow for side yard setback on 20 feet along the property's west property line subject to:         a)  site plan approval by the Town's Planning Board         b)  applicants obtaining any necessary releases, approvals or relocations of existing easements along the west property line. Mr. Virginia seconded the resolution. There was no further discussion. Motion carried, unanimously on a roll call vote that follows: Roll Call Vote:                         Aye     Nay     Other John Virginia           x       ___     _____    Robert Cleverley        x       ___     _____ Laura McBurney  x       ___     _____ Ronald Abold            x       ___     _____ James Bowes             x       ___     _____        THOMAS LAMERE 39 Downer St Tax Map Parcel Id# 049-01-01 Mr. Tom LaMere was present to address the Board. Mr. Spencer said that he is not familiar with this application with respect to what the applicant is looking for but when he went through the historical notes he did come across an item from November 2003. Mr. LaMere was in front of the Board and obtained a Special Use Permit for enclosed storage for the property on New State Route 31. Mr. Virginia said that Mr. LaMere called him at home and would like to sell the property and the proposed buyer wanted to make sure everything was still the same so he asked Mr. LaMere to come in and explain what Mr. LaMere does and what the proposed buyer is going to do because a variance does go with the land and if the uses are going to be changed then they would need to come back for a new variance. Mr. LaMere said that his present use of the building is a yard, enclosed storage, and an office building and the proposed buyer wishes to do the same and he asked for the interpretation as far as exterior storage and they do have equipment parked there from time to time and it is not storage it goes from job to job and the proposed buyer is doing the same thing. They will have some equipment there and they will repair some equipment there and there is nothing that is going to stay there for any length of time and anything that will be there will be similar to what he has and there may be a piece of equipment sitting outside for a week or two before it gets inside to be repaired and his question is the interpretation of outside storage, if a piece of equipment is there for a week or two is that considered outside storage or is that just temporary. Mr. Virginia said that if it is inoperable and in for repairs he doesn't think it is considered outside storage. Mr. LaMere explained the buyers business to the Board. Mr. Spencer said indoor storage has been an approved use and that is addressed in one section of the code. Section 200-22 E1 explains indoor storage and 200-22 E3 explains outdoor storage and gives specific items that are included such as contractor's storage yard, equipment yards, lumber yards and so outdoor storage in an appropriate zone where approved is ok but is does say that outdoor storage doesn't mean that they can store inoperable vehicles or equipment around though. They can't have junk lying around but if they have a permit for outdoor storage they can have outdoor storage. Mr. Virginia asked what the original Special Use Permit was for. Mr. Spencer said that it was for indoor storage. Mr. Abold said that if they had dump trucks parked there for a week at a time then he would consider that a construction yard so they would need a Special Use Permit for that which they do not have now. The Board discussed what would be considered outdoor storage. Mr. Nixon said that he would like to buy this property because it has more space and the intent is not for the equipment to sit there however it may sit there because he has to work on it for a month's or week's time but he can't say and he wouldn't want restrictions like that and that is the way that this is sounding and if that is the way that is going to be that he does not want to be there. Mr. Nixon discussed where he is located now and what is on the property and if he has to get a new permit he is fine with that. Ms. McBurney stated that indoor storage definitely doesn't fit what they would like to do. Mr. Spencer said that outdoor storage is not a permitted use in an AR-80 district and it is only permitted in General and Local Business, Industrial and some PUD's and when Mr. LaMere was issued the permit for indoor storage and according to the resolution it was premised on personal use as opposed to commercial use. Mr. LaMere said the reason for the resolution in the first place is so that he could have office space and he guesses that was an accessory to indoor storage and that is why he needed the special use permit. Mr. Virginia said that he thinks that was under the old code and he doesn't have a copy of that here. Mr. Spencer said looking at the old resolution assuming the Board was accurate in 2003 it says that in an AR-80 district enclosed storage was a permitted use under 200-15 C 3 as long as the applicant got a special use permit. Mr. Virginia asked about outdoor storage and if the original was outdoor storage in the old code then does it stay. Mr. Spencer said no, what goes with the land is in the use of the special permit and the special use permit was issued for enclosed storage and that continues but they don't get to go back and ask for all the things that they didn't ask for before. Mr. Virginia said what if outdoor storage was in the old code and didn't require a variance. Mr. Spencer said then the Board is still at a standstill unless the Board can establish that it was continuously used for outdoor storage since the adoption of the code as a grandfathered non-conforming use it doesn't exist and the only way to get it now is to try to find a way under the new code to get it approved. The Board discussed what zoning surrounds the property. Mr. Abold said that he is concerned that Route 31 is becoming more residential and that the residents might not want the noise associated with business early in the morning and what the applicant is asking for has that potential. Mr. Spencer said what he has gleaned from this is that they have a piece of property that is in the AR-80 district that is approved for indoor storage which apparently was consistent with the use at the time and under today's code that use is not a permitted use and it sounds to him like the issue is ok and this may involve a change in use involving outdoor storage which is not allowed. Mr. LaMere said the question is what is considered outdoor storage. Mr. Spencer said that if they have a bunch of stuff outside and it is sitting there for more than a couple hours generally he figures that they are starting to get into outdoor storage. Mr. Bowes said the way he reads item E3 especially on the second sentence which reads outdoor storage and wholesaling and primarily oriented to receiving, holding, and shipping or packaged materials for a single business or group of businesses which to him sounds like packaged materials or something that is going to be sold to someone at some point and he doesn't think having a piece of construction equipment out in the yard for a week before it goes to another job falls under that category. Mr. Spencer said that he doesn't know what the proposal is and what the Board should think about is the applicant showing either a schematic or a narrative of what they are proposing to do and then go to the code and say where does this fit in the code and once the Board knows what it fits under then they can figure out if it is a permitted use in an AR-80 district. The Board needs to come to grips with what the end result is going to be and once the applicant says ok here is what the Board is going to see 6 months from now and the Board understands what is going to be seen then the Board can say if that is ok or not but he would be concerned with getting a grip on what the parameters that the applicant is talking about here such as how much stuff, how long, where, and how big. Mr. Abold said if the Board granted the Special Use Permit for outdoor storage and then the applicant decided to sell it the property could turn into a lumber yard. Mr. Virginia said that the Board can not approve the Special Use Permit for outdoor storage because it is not allowed. Mr. Spencer said that if the Board authorizes a use today which under the code is a legitimate use and if time goes by and the code gets changed and that use is outlawed ant future owner can continue the use but they can't enlarge or expand it over time. A non-conforming use does continue with the property as long as they utilize it but it can't grow bigger. Mr. Bowes said that the question the Board is trying to define is if the use that is there now falls under outdoor storage. Mr. Spencer said he guesses but why is the Board asking that question when the use that was requested was indoor storage and that was approved so how did someone sneak in outdoor storage. Mr. Abold said that Mr. Pringle was concerned with the construction equipment that was parked there for short periods of time between jobs and if that would be considered outdoor storage for the next user. Mr. Nixon said that he has a construction company and they will see equipment sitting there and the time frame is unlimited. Mr. Abold asked if that is outdoor storage. Mr. Spencer said under the examples provided in the code it would appear the answer to that would be yes. Ms. McBurney said that if they look at the definition for contractor's yard which is exactly what they are talking about which is construction trailers, equipment, materials in connection with the conduct of such contractor's business but not long term storage and then the code refers to 200:22 E3 which says outdoor storage and if they look at AR-80 it states that they can not have outdoor storage. Ms. McBurney said that she thinks that they need to get rezoned Industrial A. Ms. McBurney said that their options are either to make sure that everything can be enclosed and keep the enclosed storage or rezoning. The Board discussed the applicant's equipment and if there was a possibility of keeping the equipment inside. Mr. Nixon stated that when he talked to Mr. Pringle, Mr. Pringle said that his business would be considered a contractor's yard. Mr. Virginia said that they are going to need to go to the Town Board to get the property rezoned to Industrial A for a contractor's yard. Mr. Spencer discussed the zone change process to the applicant. ADJOURNMENT Ms. McBurney made a motion to close the November Meeting, seconded by Mr. Abold; motion carried, unanimously. Respectfully submitted, Vera Cavallaro Zoning Secretary