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 Cleverley present
James Bowes present
Ronald Abold present
John Virginia, Chairman present
Laura McBurney, Vice-Chair present
Also Present: Vera Cavallaro, Secretary
David Pringle, Codes Officer
Ted Spencer, Attorney
MINUTES
Mr. Virginia asked that the “Estate of” be taken out of the Public Hearing – Marc Casson
Motion Mrs. McBurney moved to accept the minutes, as typed and distributed, Mr. Bowes seconded the motion, there was no further discussion; motion carried unanimously.
PUBLIC HEARING – VAN BUREN LODGING LLC
6947 Winchell Rd. Warners, NY Tax Parcel ID # 55-4-2.2 IND Zoning District
Variance from Section 200-92B (1), signage
The Public Hearing opened at 7:32 p.m.
Kristen Stephens representing Plumley Engineering was present to address the Board.
Mr. Spencer informed Mr. Virginia that they could not do anything on this because the Public Hearing was not held.
Mr. Virginia asked Mr. Pringle what the soonest date was that the Public Hearing could be held.
Mr. Virginia, Mr. Pringle and Mr. Spencer discussed when the Public Hearing could be held.
Mr. Pringle stated that it would be July 31, 2006
Mr. Virginia asked Ms. Stephens if she would like to request a Special Hearing.
Mr. Virginia asked the Board if they were willing to hold a Special Hearing on July 31st.
All Board members agreed that they could make it.
Ms. Stephens said that she would like to have the Special Hearing on the 31st since the project is almost completed and they would like to get the signs ordered.
Mr. Virginia asked if anything has changed.
Ms. Stephens said no.
Mr. Virginia told Ms. Stephens that the Special Hearing will be held on July 31, 2006 at 7:32 p.m.
Mr. Spencer told Mr. Virginia that even though they can’t conduct the Public Hearing, he can let the applicants re-educate the Board about why they are here.
CONTINUED PUBLIC HEARING – WALGREENS
2229 & 2231 Downer St., tax Parcel ID #’s 34-03-10.1 & 034-03-12
Variance from Section #200-28B(3) rear yard abutting setback, Section #200-65B(7) parking, and Section #200-93J(2) signage. Special Use Permit #200-69 to allow drive-thru.
Mr. Rick Marr was present to address the Board.
Mr. Marr stated that he was here to request three variances and one Special Use Permit for a proposed Walgreen’s store on the corner of Downer St. and Crego Rd. The first Variance is for rear yard setback, the northwest corner of their site’s boundary is an R-10 zone and the Town Code states that they need a 50ft. setback. They are proposing at the Planning Board’s request, a 43ft. setback, so they are asking for seven feet. The reason why he says Planning Board is because when they went in front of the Planning Board they proposed that the building be closer to the road and the Planning Board suggested that they push the building back and have a green area in the front and also put some sidewalks in. The second Variance is for parking, the code states that they have 106 parking spaces and we are
providing 58. The industry standard for these types of businesses is anywhere between 50 to 65 spaces. We’ve done some counting of our own in both the Walgreen’s store and other drug stores and the most we’ve ever seen and this was at their busiest times, was 25 spaces being used at one time. One reason for this is because the industry standard for these drug stores is the drive-thru window. It limits substantially the amount of spaces we need. People utilize this to pick up and drop off their prescriptions. The last variance we are asking for is the sign variance. The code allows 20sf. and we have submitted a request for a 91sf. sign. What we were hoping is that you would allow the sign as a kind of trade off instead of adding another Pylon sign like the many they already have on Downer St. What we wanted to offer was a more attractive sign to offer some relief from what the rest of the corridor provides.
Mr. Bowes said that would be called a monument sign.
Mr. Virginia asked if it had a scrolling feature.
Mr. Marr stated that it was called a reader board and he also provided the Board photos of one.
Mr. Virginia asked if the photo was of the one in Rochester.
Mr. Marr stated that it was.
Mr. Virginia asked if the sign was the only one in the state.
Mr. Marr stated that this was the only one Walgreen’s has right now.
Mr. Virginia asked if the other photo was similar to the sign in the Fairmount store.
Mr. Marr stated that many Walgreen’s stores have Pylon signs. He stated that they wanted to do something different in Van Buren.
Mr. Marr said that all of the signs that Walgreen’s has have changeable reader boards that have a black background with red changeable letters.
Mr. Virginia asked Mr. Marr where all of these signs are located that have reader boards.
Ms. McBurney asked if they were store dimensions.
Mr. Marr said that they were.
Mr. Virginia asked if the Fairmount store had the reader board sign.
Mr. Marr stated that it hasn’t been installed yet but it is ready. He also said that Auburn, Irondequoit, Watertown, and he said that he was not sure where the other signs were located.
Mr. Virginia asked Mr. Marr if he was aware that the Town of Van Buren Code doesn’t allow signs like that.
Mr. Spencer asked Mr. Virginia if he had any idea where the Town of Van Buren Planning Board was with this type of thing because the application that was submitted was with respect to the size of the sign.
Mr. Marr said that they have reviewed this sign and all of it’s aspects with the Planning Board, the changeable reader board included and the Planning Board came back with the topic of the size issue.
Mr. Virginia stated that the Planning Board put a stipulation on the scroll.
Mr. Marr said yes, the times that it changed but he could not remember if it was once per hour or exactly what it was.
Mr. Virginia said that the Planning Board said five times a day.
Ms. McBurney asked what the hours of operation were for the sign.
Mr. Marr said that the typical Walgreen’s hours were 9 a.m. until 11 at night.
Mr. Virginia said that the problem he has with a sign like this is the location of it at that intersection, he believes that particular intersection is dangerous enough without a sign that is changing.
Mr. Virginia stated that he knows several other Zoning Board of Appeals members feel the same way.
Ms. McBurney asked if they needed to conduct a Public Hearing.
Mr. Virginia stated that this was a continued Public Hearing.
Mr. Marr said that they have done the traffic study and have also worked with the County on the traffic study. One of the things that came out of working with the County was a traffic light and they are willing to do that.
Mr. Virginia asked if that would be part of Walgreen’s.
Mr. Marr stated that the developer’s that came before Walgreen’s such as Sorrell Hill LLC and Sun Meadows have put up money with the Town for the signal light, so we plan on partaking with that also. The County is in support of it, Jim Stelter from the County DOT is in support of it and he agrees that it’s time for some improvement. It also appears to respond to a concern that the County Planning Board has and that is that this is a busy corridor and we think that by putting a signal light there it would vastly improve the safety in that intersection.
Mr. Bowes asked Mr. Marr if they had asked the State about changing the speed limit down to thirty.
Mr. Marr said that they haven’t approached the State on that and a request like that has to come from the County.
Mr. Bowes asked if that was addressed at all in the study.
Mr. Virginia said that the County is also asking for a corridor study of Downer St. and Rt. 31.
Mr. Virginia asked Mr. Marr if he was aware of that.
Mr. Marr said that he was aware of that and he was hoping that with the traffic study and the proposed traffic light, that would satisfy the County.
Mr. Marr said that they are more than willing to limit the number of times in the day that the reader board changes.
Mr. Virginia stated that he doesn’t want to rewrite Town Codes.
Mr. Marr said that Auburn really liked the fact that it could be used as a municipal advertisement; he said that they showed it to Auburn advertising a high school championship and it can also be used as an AMBER alert.
Mr. Abold asked Mr. Marr how many feet off the pavement the sign would be.
Mr. Marr said that they are required to have the sign 15ft. behind the property line and the property line appears to be about 14ft. off of the edge of the pavement, so the sign is roughly 30ft. from the edge of the pavement.
Mr. Bowes said that if the traffic light goes in and there is a sidewalk, than there is a good chance there is going to be a crosswalk.
Mr. Marr said that they are providing a sidewalk to the corner.
Mr. Bowes said that it depends where the sidewalk is going to be to determine where the cars are going to stop coming off of Crego Rd. It’s nice to know that will come out far enough off of Downer St. that visibility around the sign won’t be a problem. You are showing a sign that is about 6ft. tall and for someone in a car, that’s one of the reasons the Town has an ordinance on fence height over three and a half feet tall in front yards. That is something the Town should look at to see if it is going to be an issue or not.
Mr. Virginia said that the sign appears to be 29ft. off the pavement.
Mr. Marr said that it was.
Mr. Bowes stated that he thought the first car wouldn’t have a problem.
Mr. Virginia stated that scrolling signs are definitely not allowed by the Town Code; technically it is a prohibited sign.
Mr. Virginia read the Town Code that prohibits certain signs aloud.
Mr. Virginia stated that if they allowed the sign, they are rewriting Town Law. He stated that there was a lot to think about.
Mr. Marr showed Mr. Bowes and the Board a photo showing a vehicle stopped at the corner, referring to the visibility of the sign.
Mr. Virginia said that the application just calls for an increase in free standing sign from 20sf. to 91sf. it doesn’t mention anything about this.
Mr. Virginia said that seeing the Zoning Board of Appeals is having a Special Hearing on July 31, 2006 he would put them on right after so that the Board has time to think about this more.
Mr. Bowes asked if that was regarding the whole application.
Mr. Virginia said yes that he wanted to do everything at once.
Mr. Marr said that if they didn’t feel that they were ready to do that tonight than…
Mr. Virginia said that he wanted to give the Board more time to look at it.
Mr. Virginia said that Mr. Marr would have to amend his application for the scrolling sign because all that he was asking for is an increase in free standing signage.
Mr. Pringle stated that he didn’t think the applicant was applying for a scrolling sign.
Mr. Virginia said that’s what they want.
Mr. Pringle said that the sign was going to change five times a day.
Mr. Virginia said that’s what Mr. Geiss wants.
Mr. Pringle said that in other words it is going to have something for sale on it.
Mr. Virginia said that if we say four times a day that would be easier because that would be six hours.
Mr. Pringle said that a scrolling sign is a rolling message like at Times Square, it keeps scrolling across the sign.
Mr. Marr stated that it’s interchangeable.
Mr. Virginia asked Mr. Pringle if his determination was that this does not apply to Item four, moving or flashing signs.
Mr. Pringle said that it just could not give you the impression that it is moving, it can’t scroll.
Mr. Bowes said that the display has to be static until it changes.
Mr. Pringle stated that they took out the automatic portion of it when they talked to the Planning Board, so it automatically can’t change; someone has to enter a new message.
Mr. Virginia said that they may go down to four hours a day.
Mr. Pringle said that as long as it goes from A to B instantaneously and it stays that way, it can change four times a day, five times a day, or whatever the Board decides.
Mr. Marr said that is what they are proposing.
Mr. Virginia said that is where they are getting confused.
Mr. Abold said that it is just a lit up sign that changes.
Mr. Spencer asked if the Board understands at all what the applicant wants, he said that if they are going to entertain this application for something other than or in addition to the size of the sign, what else is the Board entertaining here.
Mr. Virginia said the size of the sign and the message board.
Mr. Spencer asked what the parameters are that they are asking for. He hasn’t seen anything in black and white for any of this stuff.
Mr. Abold asked Mr. Virginia if this is not a scrolling sign do they need a variance for it.
Ms. McBurney said that it is just a big monument sign.
Mr. Virginia said that if this is not a scrolling sign than he believes all they need is a variance for the size of the sign.
Mr. Pringle stated that the Board would have to determine that because there is no other sign in the Town like this other than time and temperature at the bank. They are going to have to determine if this is or is not a prohibited sign.
Mr. Virginia said that the Board has to be cautious about this. He read the Town Code for the scrolling sign aloud.
Mr. Virginia asked the applicant to explain exactly how the sign works.
Mr. Marr stated that it was an instant change.
Ms. McBurney asked the applicant that if someone was driving along and making their turn with all the nonsense that goes on at that intersection is their vision going to be drawn away to that sign when it changes.
Mr. Marr said no.
Mr. Virginia asked if they could program the sign to change at certain times of the day.
Mr. Marr said that he was sure that they could.
Mr. Virginia stated that they are worried about heavy traffic times and could consider having the reader board change during light traffic times. The Board needs time to think about this.
Mr. Abold said that he doesn’t think that in the daylight hours that the changing of that sign would bother anyone and at night, except in the winter. That is the only time that you would get a rush hour problem because it gets dark but other than that he can’t see it being a problem.
Mr. Marr stated that it has a black blackboard to start with and it is not a glaring sign.
Mr. Bowes asked what the hours of operation were for the sign.
Mr. Marr said that he would bring in that information to the next meeting.
Mr. Virginia would like the Board to know if the sign is going to be lit up when the store is closed.
Mr. Germaine the attorney for Walgreen’s addressed the Board.
Mr. Germaine said that the sign was not a running sign or a flashing light. It is just an information board and Walgreen’s policy is to provide community service such as if the Town or local Pop Warner wanted to make an announcement, they would run that as well. It can also do time and temperature. Two thirds of the time the sign will be dedicated to Walgreen’s and a third of the time will be used for Town announcements.
Mr. Virginia asked how they could do time and temperature only four times a day.
Mr. Germaine stated that with the Board’s restriction that would make that a little difficult.
Mr. Marr said that it wasn’t much different from the bank that they discussed earlier. He also reiterated to the Board his earlier discussion about the sign.
Mr. Virginia asked the applicant that if the Board gives them the variances and Special Use Permit that they want, they would all be contingent on the Planning Board, which they could attend on August 7, 2006 since the Special Zoning Board of Appeals meeting is on July 31st.
Mr. Spencer suggested to Mr. Virginia that he should give the public an opportunity to speak.
Mr. Virginia asked if anyone wanted to speak to this matter.
Jim Williams from Kassis Superior Signs stood to address the Board.
Mr. Williams stated that Kassis, the company he works for sells more of these signs than anyone else in Central New York. The way that the ordinance was written, a flashing sign essentially goes back to the time when we had Philip’s Stations, where they had chaser lights or neon that blinked on and off. In reality that was there to attract attention, today we would probably ignore them. The laws that are in your ordinance don’t really refer to what the capabilities of what an electric message board can do.
Mr. Virginia asked if Kassis was selling the sign to Walgreen’s.
Mr. Williams said that they were not unfortunately, the national company that handles Walgreen’s doesn’t want to deal with Kassis, or Kassis doesn’t want to deal with them; he’s not sure which, so he has no vested interest.
Mr. Williams stated that if you were to turn off the lights for one second, that would not be flashing, you could feel that second. Flashing would be milliseconds. So if it changes every four hours, the transition from one message to another is not going to create any flashing sensation.
Mr. Virginia thanked Mr. Williams and asked if anyone wanted to speak against this matter.
Mr. Virginia stated that they will continue the Public Hearing for Walgreen’s July 31, 2006 at 7:40 p.m.
CONTINUED PUBLIC HEARING – KASSIS SUPERIOR SIGNS
(Representing Meyers Properties) 7030 Interstate Island Rd. Tax Map ID# 056-03-01.1
Variance from Section #200-92B (1) and E (6) signage. Ind-A Zoning District
Jim Williams from Kassis Superior Signs representing Meyer’s Campers and Camping World was present to address the Board.
Mr. Williams stated that they have been before the Planning Board and that they have made a recommendation to the Zoning Board.
Mr. Virginia stated that it was a negative recommendation.
Mr. Williams said that it was a negative recommendation on the roof sign.
Mr. Virginia said that was correct.
Mr. Williams said just as a review, they wanted to place an additional sign on the west elevation announcing Camping World was in that building on the west elevation. That’s an additional 66sf. of signage.
Mr. Virginia stated that it wasn’t the additional square feet; it is the location of the sign. It’s a roof sign and roof signs are not allowed.
Mr. Williams stated that he understands that and he has some additional handouts of questions that were originally discussed that hopefully can clarify some of the concerns if you were to approve the roof sign.
Mr. Virginia stated that roof signs are prohibited and polled the Board and said roof signs are not allowed by Town Code, the applicant went to the Planning Board, and the Planning Board said that they could use a free standing sign, a Pylon sign. The Planning Board gave them a list.
Mr. Virginia asked Mr. Pringle if that was correct.
Mr. Pringle stated that they did discuss other things that the applicant could do. He said that he didn’t have it in front of him but it was mainly a negative recommendation.
Ms. McBurney read the Planning Board’s negative recommendation aloud.
Mr. Virginia asked the applicant if he had other items that he would like to present to the Board.
Mr. Williams said that he did but he wanted to let the Board know what the NYS DOT had determined.
Mr. Virginia stated that they had already read it.
Mr. Williams said that the other discussion that he had with them is that the sign was actually going to sit back farther from the Thruway than the original sign; it was essentially more spread out along a larger area and was not that tall. The other discussion is when people are exiting on the Thruway, where the sign was previously, they were turning at the same point as when they would be looking at the sign. It was right in front of where the extension is right now. It is a matter of the fencing being what it is and the building sitting down so low, right now we could put the sign above the service bay doors but it would not be seen because of the fencing and the greenery that is growing there.
Mr. Virginia asked if they had considered a Pylon sign, a free standing sign.
Mr. Williams said that his concern is that he doesn’t know if the NYS Thruway would allow that. He has gotten a free standing sign for another business by the Thruway previously but they had basically 1500ft. between the building and the Thruway, right now we are closer than what the Thruway Authority likes to have and we want the sign to be seen. The combination of 2ft high letters that we’re suggesting and the distance; they were in agreement that it could be easily seen and not be an unsafe turn for people. The sign on that side of the building is by far the most essential, you could take the rest of the signs that are on that building and put them in your back pocket. The sign facing the Thruway is their principal sign.
Mr. Virginia asked about the east end of the building with a Pylon free standing sign.
Mr. Williams said they would have the same problem.
Mr. Williams handed out a side view photo. If we put the sign on that side, it would actually be lower than what we are talking about in terms of line of sight from the Thruway. If it was on the old building, there’s not enough length there to work with. The building sits low so you just don’t see it.
Mr. Williams gave the Board more photos. The top right hand photo would be as you enter the exit ramp. The pictures below that one were taken in sequence, a Pylon sign probably would work.
Mr. Virginia asked the applicant about the last picture, which is past the Meyer’s building.
Mr. Williams stated that he just wanted to show the Board were the exit ramp was located relative to the building.
Mr. Virginia stated that he can’t understand why they can’t put the sign on the east end or above the doors.
Mr. Abold said that the flag shows up well and a Pylon sign would show up just as well as the flag. That is an indication; if you can see the flag you can certainly see a Pylon.
Mr. Williams said that the Board is completely anti-roof sign and basically he had three reasons why he would like to have it where he proposed it. The first reason being it is very readable at the exit and to have to lower it, it would get blocked because of the fence and everything that is growing on it.
Mr. Williams said that he took the photos in April or May, so you can’t see all the foliage that would block the sign.
The Zoning Board and the applicant had a discussion about what would and could not be seen in the photos and while driving in the area.
Mr. Virginia stated that the roof sign is still a prohibited sign and this Board does not want to rewrite the laws of the Town.
Mr. Williams asked if it was even when there was a hardship involved.
Mr. Virginia said that he doesn’t view this as a hardship because they can use other types of signs. There is a multitude of signs that the Town allows that can work for this, other than a prohibited sign.
Mr. Bowes said that he doesn’t see the roof sign as the only alternative.
Mr. Williams said that they could come up with a Pylon sign; he will have to go back before the Thruway Authority and ask for their blessing on that.
Mr. Virginia said that there was two ways that we could do this. We could do it by resolution or they could withdraw their application
Mr. Williams said that they have two issues, the roof sign and the one on the side. He asked if the Board could vote on the one on the sign.
Ms. McBurney asked if it was on the west end.
Mr. Spencer said that with respect to the sign on the west end, what are we requiring a variance for, is it the size of the sign.
Mr. Williams said it was the side facing the Comfort Inn.
Mr. Virginia asked what the size of the sign is going to be.
Mr. Williams said 66sf.
Mr. Virginia asked if their previous application was present.
Mr. Spencer said that his recollection is that there previous variance was granted with respect to signage at this facility but he doesn’t have the previous application with him.
Mr. Spencer asked how many signs, how big and where the signs will be located.
Mr. Virginia said that one sign that they are requesting is seventeen feet, seven and three-eighths inches long at 2.3ft high.
Mr. Spencer said that the sign alone because of its size needs a variance.
Mr. Virginia said that they are also asking for a logo for a total of 30ft 11in. It is two different things.
Mr. Williams said that they are asking to add Camping World to the west end of the building.
Mr. Virginia said that he needed to know what their total signage was on their previous variance because it is going to add to the total signage on this building.
Mr. Pringle said that he needs a variance for any additional signs for Meyer’s. So whatever he asks for is what he needs, in this case it is 66sf. and he also needs one for the Pylon sign if he chooses to do that.
Mr. Virginia said that he understands that but the variance is based on total signage for the whole building.
Mr. Pringle said that they maxed out on signage to more than what the Town Code allows.
Mr. Virginia said that he has to know what that was because this will be a variance for total signage of that property.
Mr. Bowes asked the applicant if he had a chart showing how many square feet he already has on the building.
Mr. Williams said that he hasn’t added them up.
Mr. Bowes said that he needs to do that for the Board.
Mr. Virginia said that he needs to have the previous variance before the Board can do anything.
Mr. Virginia asked the applicant if he was going to go to the Thruway for the Pylon sign.
Mr. Williams said that he is going to have to.
Mr. Williams asked how tall he can make the Pylon sign.
Mr. Virginia asked Mr. Pringle what the regulations are for Pylon’s.
Mr. Williams asked if the height had to be road grade or from the grade where they place the sign because this is an unusual building in how it’s built.
Mr. Pringle said that it is measured from the ground.
Mr. Williams said that it would probably be 40 or 50ft. above the grade.
Mr. Pringle said that the Code states one free standing sign 25ft in height.
Ms. McBurney asked what the roof height is on that end.
Mr. Virginia asked for the height on the small roof.
Mr. Williams said that it is 24ft. and the main building is 28ft.
Mr. Virginia said that he would like to continue this hearing; the applicant should amend the application and come back for the Pylon and other sign.
Mr. Williams asked if they could approve the other sign tonight.
Mr. Virginia stated that they need the previous variance to find out exactly how much signage they already have before the Board can approve more.
Mr. Williams asked if he needed to be present at the next meeting since they are just going to look at total signage.
Mr. Virginia said that he needs to be here if he wants to do the Pylon sign.
Mr. Williams said that it will be awhile before he comes back for the Pylon sign because he has to go to the DOT first.
Mr. Virginia told the applicant that was fine and they could continue without him on the other signs.
Mr. Spencer said that he can understand the applicant wanting to get approval before he comes back for the Pylon sign.
Mr. Spencer asked if anyone knew what they already have for signs, where they are, how big they are, what they want for signs tomorrow, where they will be, and how big they will be. He said that he doesn’t know if the photos he’s looking at are signs that are already there or if they are new.
Mr. Williams told Mr. Spencer that the photos are of existing signs.
Mr. Virginia and Mr. Spencer had a discussion on which signs have and have not been approved.
Mr. Virginia said he is continuing the Public Hearing until August 21, 2006 at 7:35, he said that the Board will go through this and the previous variance so they will have the total signage to add to this and we will have to do the same thing with the Pylon sign.
Mr. Abold asked Mr. Pringle if the signage that is on the building right now is what it is supposed to be.
Mr. Pringle said that he would check but he is pretty sure there are no new signs.
APPEAL TO ZBA DECISION – CYNTHIA MONETTE
6945 Winchell Rd Tax Parcel Id # 055-03-3.0 Ind-A Zoning District
Resolution number Z-04-15
Mr. Jim Monette was present to address the Board.
Mr. Monette gave the Board a packet to review.
Mr. Virginia said that he first wanted to go to the back of the packet to the Public Hearing portion. He said that the Board asked for the owner to be present and Mr. Joseph Monette, owner of the property was present.
Mr. Virginia asked why that portion was highlighted.
Mr. Monette said that is because he is not the owner of the property and he was represented as the owner of the property to the Board and whoever’s job it was to confirm the owner of the property failed to do so.
Mr. Virginia said people who come here and speak to the Board where the applicant is standing are basically under oath, so when he stated that he was the owner; we took him at his word.
Mr. Monette stated that he doesn’t see anywhere in the minutes where he states that he is the owner of the property.
Mr. Abold asked the applicant what has brought this about two and a half years later.
Mr. Monette said that the gentleman that’s in the building now is operating an illegal motor vehicle repair shop and they want him out. The only way to get him out is for the Town to pull his permit.
Mr. Virginia asked if there was any litigation on this property at the present time.
Mr. Monette state that there is.
Mr. Virginia asked what that litigation is.
Mr. Monette stated that it is a landlord/tenant dispute.
Mr. Virginia asked where the litigation stands and what court is it in.
Mr. Monette stated that it was in Onondaga County Supreme Court.
Ms. McBurney asked if any decision had been rendered on that dispute yet.
Mr. Monette said that there was a dismissal of their claim that gave the tenant a valid lease.
Ms. McBurney and Mr. Virginia asked if the lease was declared valid.
Mr. Monette said in a sense, yes.
Mr. Virginia asked the applicant who signed the lease.
Mr. Monette stated that Patrick Peryea and Cynthia Monette. Cynthia Monette signed it under false pretenses that Mr. Peryea was representing.
Mr. Virginia asked the applicant what Mr. Peryea was representing.
Mr. Monette said during the negotiations of the lease, at the time of this application to the Board there was no lease in effect. There was never a lease until July 8, 2005 and there was a year that lapsed.
Mr. Virginia said that he knows he was in the building because there was an inspection done in May, 2004 so he was operating at the time.
Mr. Monette said that the building does not conform substantially as it states that it does. There is no oil/water separator.
Mr. Virginia asked Mr. Pringle when the last time he inspected the property was.
Mr. Pringle said that he received a complaint from the Monette’s maybe a month/month and a half ago about oil being on the ground and things of that nature. He went to the building and asked the tenant, normally he would do inspections by scheduling them, and Mr. Peryea had no problem with him coming in. He did a quick site inspection and walk through of the building.
Mr. Virginia asked if there was an oil/water separator.
Mr. Pringle said there was not.
Mr. Virginia asked if it was necessary.
Mr. Pringle said no, not by Town Regulations.
Mr. Abold said that he thinks that is for a commercial auto service repair.
Mr. Monette said that it was for a registered repair shop and that is what he has.
Mr. Abold asked Mr. Pringle it was a registered repair shop.
Mr. Pringle stated that it is.
Mr. Spencer asked the applicant if those were regulations from the Department of Motor Vehicles.
Mr. Pringle said that they are regulations that go in place when the structure is being constructed.
Mr. Virginia read the regulations aloud.
Mr. Virginia asked Mr. Pringle if it had grease racks or grease pits.
Mr. Pringle stated that it didn’t.
Mr. Monette referred to DMV Code # 1003.1.2
Mr. Virginia said that he was going page by page.
Mr. Virginia asked if there is a repair shop on the property.
Mr. Pringle said yes.
Mr. Virginia read more of the DMV Code aloud.
Mr. Virginia asked if there were floor drains in this building.
Mr. Virginia asked Mr. Pringle if he had seen any evidence of oil on the floor.
Mr. Pringle said nothing that he wouldn’t expect to see even in a residential garage. The shop was very clean.
Mr. Monette wanted to correct Mr. Pringle that it was January 30, 2006 that they made the complaint and Mr. Pringle inspected or did a walk through as he claims.
Mr. Pringle stated that there were violations on the property but not of the leased area. Apparently Mr. Peryea doesn’t lease the entire property or all of the building, he just leases a portion.
Mr. Pringle asked Mr. Monette if that was correct.
Mr. Monette said that it was.
Mr. Virginia said Mrs. Monette signed the lease and asked the applicant how long the lease was for.
Mr. Monette said that the lease has absolutely nothing to do with this. He said it was signed well after the Special Use Permit was issued contingent upon a signed lease which he did not have. There has to be some reasonable time period that Mr. Peryea needs to obtain one.
Mr. Virginia again asked when the lease was signed.
Mr. Monette said July 8, 2005.
Mr. Abold said even though the time period was a long period of time he had a Special Use Permit, he didn’t act on it for year and then the lease was signed by Mrs. Monette and she knew that the Special Use Permit had been issued.
Mr. Monette said that she did not know that a Special Use Permit was issued or that there was a change of occupancy because she was never notified.
Mr. Abold asked how she signed the lease.
Mr. Monette said that they already had a registered repair shop opened at the facility.
Mr. Abold said that she signed the lease a year later with no complaints.
Mrs. Monette addressed the Board from the audience; she said that she already had a Special Use Permit and was unaware that a change was needed or that one has taken place for him to operate.
Mr. Virginia asked Mr. Pringle what type of Special Use Permit was issued.
Mr. Pringle said that it was under the Lima Gravel Beds, a contractor’s yard.
Mr. Virginia asked Mr. Spencer if that Special Use Permit was still with the building.
Mr. Pringle said that conditions on the current permit dissolved the first permit.
Mr. Pringle read the conditions on the current Special Use Permit aloud.
Mr. Monette said originally there was an arrangement by Mr. Peryea and the previous property manager, Joseph Monette, that he was going to purchase the property in May, 2005. Mr. Peryea failed to do so and there was a lease negotiated for him to stay under the understanding and belief that he had a legal operation there existing already.
Mr. Abold said that he did because he had the Special Use Permit.
Mr. Virginia said that according to the Codes Officer it is a legal operation.
Mr. Monette said that he would like to draw the Board’s attention to the Certificate of Occupancy that Mr. Pringle sent to the Department of Motor Vehicles stating that Mr. Peryea of Peryea Transportation is the owner of the foresaid structure.
Mr. Virginia asked Mr. Spencer what that means.
Mr. Spencer said that it doesn’t have much to do with it. The Special Use Permit goes with the property as opposed to a particular person and continues to run with whoever owns the property unless it’s terminated or it lapses. There is no significance to the last sentence, as long as the property is identified correctly.
Mr. Abold stated that it says Tenancy Change.
Mr. Pringle stated that it was an oversight; the form is a template that we use for CO’s that the secretary types up, normally all CO’s are issued to the property owners. This one was unique and it got missed.
Mr. Spencer said that the CO does not relate to the Special Use Permit.
Mr. Pringle said that it was so Mr. Peryea could get registered.
Mr. Abold said that what he doesn’t understand is that he must have paid rent from the day that he moved in until the day that they signed a new lease because he couldn’t afford to buy it or whatever the case may be. Something in this year’s period must have changed hands.
Mr. Monette said that there is nothing in front of the Board to determine the paying of rent.
Mr. Virginia said that there is nothing in front of the Board that states this Special Use Permit is not legal.
Mr. Abold asked the applicant if they gave Mr. Peryea the building free for a year.
Mr. Monette stated that nobody here ever said that, the amount of rent paid or the month’s they paid, or anything about that. That has nothing to do with the validity of the Special Use Permit.
Mr. Virginia said that who is in there and what they are doing on the property has nothing to do with the Special Use Permit because the permit goes with the property not the owner.
Mr. Monette asked if the chair’s reading of what it says there for the oil/water separator applies to this property.
Mr. Virginia said again, the Special Use Permit allows the use of a automobile repair facility in this district whether or not he complies with the laws of the State, the DEC or whatever, that is something the Special Use Permit has nothing to do with.
Mr. Monette stated that he would like to correct the Chair on that.
Mr. Virginia told him to go ahead.
Mr. Monette said number four of the Special Use Permit is granted pursuant to Code 200-33C2 and all other applicable provisions of the Code to allow the operation of a motor vehicle and service repair facility subject to the following: All buildings will conform to the NYS building code requirements.
Mr. Virginia told the applicant that he didn’t have to yell.
Mr. Virginia asked Mr. Spencer with a Special Use Permit if something is happening in the building that doesn’t meet the code, it has to be brought to code, right.
Mr. Spencer said that if there is existing Code violations and the owner or occupant has been cited.
Mr. Virginia said that there have been no citations, just allegations.
Mr. Spencer said not that he’s aware of.
Mr. Monette said no there has not been because Mr. Pringle has failed to do so.
Mr. Abold asked Mr. Virginia if he thought it would be wise to request that Mr. Pringle inspect the property again.
Mr. Virginia said that is what he is going to do.
Mr. Pringle stated that he knows that there is no oil/water separator, so what he should do is get with the State of NY or the registered division in Albany and find out if an existing building should have one.
Mr. Pringle asked the applicant if they had a registered auto repair shop there before.
Mr. Monette said that there has never been a repair facility there, stated by Mr. Peryea in his application that this building was built for his application. It was a contractor’s yard.
Mr. Virginia asked the applicant what they put in the building.
Mr. Monette said equipment.
Mr. Virginia asked if they repaired that equipment in that building.
Mr. Monette said for us not for the public, only when it’s for the public do they require an oil/water separator.
Mr. Virginia said he disagrees, if you have a discharge to a stream thru a floor drain they will make you put in an oil /water separator
Mr. Monette said that there were no previous violations issued.
Mr. Virginia stated that he was just correcting him, because the applicant is speaking to an engineer.
Mr. Virginia asked Mr. Pringle to review this as to the conditions of the Special Use Permit and report back to the Board next month. The Board is only concerned with the Special Use Permit, so only violations having to do with that. If any conditions under the Special Use Permit are in violation under any Code, than that will be another matter.
Ms. McBurney asked about the lease that was signed in 2005, she wanted to know how long the lease was for.
Mr. Monette said that it was a five year lease.
Mr. Monette’s brother asked if he could address the Board.
Mr. Monette’s brother said that Mr. Pringle just stated out of the Resolution as to the validity of the matter that the validity of the Special Use Permit was contingent on the fact that Mr. Peryea was the owner of the premises.
Mr. Virginia said no, he stated that was standard terminology and he thinks the attorney clarified that. He said that it’s a standard that he does…
Mr. Monette’s brother argued with the Chair over what was said.
Mr. Spencer said that they either had to have a lease arrangement with the owner or be the owner.
Mr. Monette asked what the standard period for which he has to obtain said lease.
Mr. Spencer said that there is no standard period.
Mr. Monette’s brother said so the person could stay there for a year, destroy the property and…
Mr. Spencer said that if he was there without a lease than they had the right to remove him at any time.
Mr. Monette said they weren’t witness to the damage until after the fact.
Mr. Virginia said than they shouldn’t have signed the lease.
Mr. Virginia said that the Board will hold its decision on this Appeal until the codes officer gets back with his report regarding violations of the Special Use Permit.
Mr. Spencer said since we will have the opportunity and the current state, we will be able to act more intelligently on it. Typically if this Board adopts a Resolution, NYS Law provides anyone not in agreement a period of time which has long since come and gone to put in an Appeal. We are way past that.
Mr. Virginia asked what that time period was.
Mr. Spencer said ninety days.
Mr. Abold said that the Board was doing the applicants a favor.
Mr. Monette said that they have come in front of the Board this evening to try to correct this problem without any further legal pursuit in this matter.
Mr. Virginia said to correct this problem with the testimony that the applicant has provided, he needs the code officer to see if there is any violations according to the Special Use Permit, anything else wrong with that building is not of concern here. It the roof is falling down, that’s building code. Anything else that’s not in the conditions of this permit on that property won’t negate this permit.
Mr. Pringle said that Mr. Peryea has been very upfront, any code violation that he has found have been taken care of as soon as Mr. Peryea was made aware of it.
Mr. Monette said that he would like to point out since Mr. Pringle likes to make statements like that. There is no firewall separation between the two occupancies that Mr. Pringle has pointed out to the Board this evening.
Mr. Virginia asked what two occupancies.
Mr. Monette stated the leased portion and the not leased portion.
Mr. Pringle said that he was told that they weren’t occupying it.
Mr. Pringle asked Mrs. Monette if she had been getting the notices that he has sent.
Mrs. Monette said that she has.
Mr. Pringle asked Mrs. Monette why she has not responded to them.
Mrs. Monette said because she didn’t have to.
Mr. Monette said that they are not here to talk about that.
Mr. Monette’s brother said that it is because they are locked out of the property.
Mr. Virginia said that this was a whole new ball game.
Mr. Abold said that he thinks this isn’t the Special Use Permit.
Mr. Spencer wanted to know the status of the lawsuit.
Mr. Virginia said that he asked the applicants and they lost.
Mr. Spencer said than there is no lawsuit.
Mr. Monette said that they told the Board that the case was dismissed without prejudice.
Mr. Spencer said that means there is no lawsuit and the lease it valid.
Mr. Pringle asked Mrs. Monette what the second occupancy on the building was.
Mrs. Monette said it’s mine.
Mr. Pringle asked what they are using it for.
Mrs. Monette said that they have offices upstairs and storage downstairs.
Mr. Pringle said that he was told the only part they occupied was the last bay.
Mr. Monette’s brother said the last bay and two offices upstairs.
Mr. Pringle said that he was only aware of the bay and was not aware of any offices upstairs that were not Mr. Peryea’s.
Mr. Monette told Mr. Pringle that when they delivered the lease to you it specifically stated right there in the lease and there is a copy of it right in the other room where the leased and non-leased portion of the property is.
Mr. Pringle told Mr. Virginia that there could be other issues here.
Mr. Virginia said that this was enough for tonight, there will be no decision made on this Appeal tonight, we will continue this informational meeting until we hear from the Codes Officer next month.
OTHER BUSINESS
Mr. Abold asked Mr. Pringle about the signs hanging on the fence that are not legal at Foxfire and said that they have been there for quite a while.
Mr. Virginia said it was an advertisement for his grand opening.
Mr. Abold stated that Foxfire’s new owners need to be made aware of the Code.
Mr. Virginia said grand opening signs are good for so many days.
Mr. Pringle said that they need a permit.
ADJOURNMENT
Mr. Virginia made a motion to adjourn the meeting to August 7, 2006; Mr. Abold moved to accept the motion, seconded by Mr. Bowes; motion carried. The meeting adjourned at 9:03 p.m.
Respectfully submitted,
Vera Cavallaro
Zoning Secretary< | 
