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
Brad Hunt, Attorney
Ted Spencer, Attorney
MINUTES
Mr. Virginia and the Board made changes to simple typos on the August minutes that needed to be fixed. August minutes were approved as amended
Motion Mrs. McBurney moved to accept the minutes, as amended, Mr. Bowes seconded the motion, there was no further discussion; motion carried unanimously.
PUBLIC HEARING – RICHARD AND LAURI LONG
122 Commane Rd Tax Map Parcel ID #037-01-13
Variance from section 200-45 R-40 Zoning District
Mr. Virginia waived the reading of the Public Notice.
Mr. Long was present to address the Board.
Mr. Long said that they would like the variance so that they can build their permanent residence.
Mr. Virginia asked the applicant if they wanted to go to 18ft. side yard setbacks.
Mr. Long said yes.
Mr. Bowes said that he just wants to clarify that the survey that was given to the Board dated May 2004, shows a structure on there. He wanted to know if that was the proposed structure or is that an existing structure.
Mr. Long said that the structure is a proposed structure. The structure that was there was an old camp but what is going up there will be brand new.
Mr. Virginia asked Mr. Pringle if he had any comments.
Mr. Pringle said no, that the property has been cleaned from the old camp; it is an R-40 zone which is very tough.
Mr. Virginia asked if the Board had any comments or questions.
Mr. Bowes asked since this lot is nonconforming 15,000sf; the Board doesn’t need to address it in the resolution.
Mr. Virginia stated that they didn’t have to address it.
Mr. Pringle said that it is a legal nonconforming lot.
Mr. Virginia said that front yard setbacks are OK because they are 50ft.
Mr. Pringle said yes.
Mr. Virginia asked if anyone in the audience wanted to speak to this matter.
Mr. Virginia closed the public hearing and proposed the following resolution: Z-06-20
Richard Long and Laurie Long of 12 West Oneida Street, Baldwinsville, NY seek an area variance from Section 200-45 of the Town of Van Buren Code related to the proposed location of a new home. The property is located at 122 Commane Road in an R-40 District and is identified as Tax Map parcel 037-01-13.0.
Mr. Long spoke in favor of the application and described his plan to construct a home on an existing lot of approximately 15,000 square feet which is 77.5 feet wide and 218 feet deep. In an R-40 District minimum lot size is 40,000 square feet with a minimum side yard set back of 20 feet and a total side yard set back of not less than 50 feet. Minimum lot width is set at 150 feet. Mr. Long explained in detail to the Board the physical limitations of his property based on size and the proposed home he wishes to have built.
There was no objection to the proposal at the ZBA’s public hearing, which was held on September 18, 2006 pursuant to the public notice.
In support of the application, applicant submitted an Application for Variance, Agricultural Data Statement, Notice to Surrounding Property Owners, location sketch and survey showing the location of the proposed house on the property. A written explanation of the situation was also submitted.
Based on the foregoing, the Board resolves as follows:
1. This matter is Type II under SEQR as it involves an individual setback variance related to a single family residential use.
2. It is determined that 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 variance will not have an adverse effect or impact on the physical environmental conditions in the neighborhood or district in light of the surrounding lots and physical limitations based on lot size. Neighbors expressed no objection to the variance. Given the size of the lot and the principal structure location, there is no apparent method to achieve the benefit applicant wishes to obtain other than a variance and the benefit to
applicant outweighs any detriment to the neighborhood or community as a result of granting this variance.
3. A variance is granted to allow the construction of a home on existing Tax Map parcel no. 037-01-13.0 which is approximately 15,000 square feet with a width varying from 70 – 77.5 feet. Side yard setbacks are granted for 18 feet on each side. Any additional structures or modifications to existing structures shall require additional review and approvals.
Mrs. McBurney seconded the resolution, there was no further discussion.
Roll Call Vote:
Aye Nay Other
John Virginia v
Robert Cleverly v
Laura McBurney v
Ronald Abold v
James Bowes v
Vote: 5 yes, 0 no, 0 absent; motion carried
CONTINUED PUBLIC HEARING – THOMAS VANBUREN
112 Commane Rd. Tax Parcel ID # 037-01-08
Variance from Section 200-45 R-40 Zoning District
Mr. VanBuren was present to address the Board.
Mr. Virginia asked the applicant to tell the Board what he wanted to do and the new dimensions of the garage.
Mr. VanBuren said that it will be attached and three feet off the property line and the new dimensions would be 20’x18’.
Mr. Pringle said that the applicant wants to remove the old structure, build a new garage and attach it to the house and it will be three feet off the property line.
Mr. VanBuren added that there is going to be a firewall between the house and the garage.
Mr. Virginia said there is no longer going to be the old structure.
Mr. Pringle said that was correct.
Mr. Virginia stated that the applicant needs a 3ft. setback and that right now there is less than a 2ft setback on each abutting property line. He asked if the applicant was coming any farther east.
Mr. VanBuren said that he was going towards the house.
Mr. Virginia had the applicant come up to the front to point out a property line and asked the applicant if the line was going to stay the same.
Mr. Virginia and the applicant had a discussion about the size and location of the proposed garage.
Mr. Virginia asked the applicant if the garage was going to be 20’ x 18’.
Mr. VanBuren stated that it was.
Mr. Abold and Mr. Virginia had a discussion on what the applicant was proposing.
Mr. Virginia asked if the Board had any more questions for Mr. VanBuren.
Mr. Virginia asked Mr. Pringle if he has gone down to the applicants’ home and measured the area.
Mr. Pringle stated that he went out there and measured it off the existing house; he said he explained to the applicant the nonconforming uses, what he could and could not do with the old garage.
Mr. Pringle said the applicant submitted a signed and stamped survey and he enlarged it the best he could but the stamp is on the original, since he enlarged it the stamp came off but it is an original survey.
Mr. Virginia asked if this was going to be an attached garage.
Mr. Pringle said correct but he is not sure where the property line is, the applicant may have to have someone find that line because the neighbor’s survey doesn’t agree with this survey. When the Board says so many feet off of the line he wants to make sure he knows where the line is or so many feet off the house so that they don’t encroach on the neighbors.
Mr. Virginia asked the applicant if he would be against the Board putting a condition on that he has the property line surveyed.
Mr. VanBuren said that his survey is the original survey of the house when he bought it that came from the mortgage company.
Mr. Virginia asked when he bought the house.
Mr. VanBuren said seven or eight years ago.
Mr. Pringle stated that all they have to do it find the pins, the property markers. Once they find the pins they can ascertain were the line is.
Mr. Virginia asked if Mr. Pringle had looked for the pins.
Mr. Pringle said that he had not.
Mr. Virginia asked if the Board or Mr. Pringle had any more questions.
Mr. Virginia asked if any one in the audience wished to speak to this matter.
Mrs. Johnson, Mr. VanBuren’s neighbor addressed the Board.
Mrs. Johnson stated that she believes her survey to be accurate and the way the property line is, that is the way she would like to keep it. It is a little bit of a buffer because the driveway is right there and Mr. VanBuren really wasn’t there that much because it was more of a summer home for him but now that it is his permanent home and he wants to do more. Before there is a mistake made she said that she does believe her property line is accurate and she wants to maintain that little piece of property.
Mrs. Johnson said that she spent $450.00 to have it redone last year when kids in the neighborhood were talking about this and no adult came to speak to her about it.
Mr. Virginia asked Mrs. Johnson if her pins are visible.
Mrs. Johnson said that they were.
Mr. Virginia said that what he would like to do if it is OK with the Board and Mr. VanBuren, he would like to continue this.
Mr. Pringle said that he is not really sure that the surveys disagree on where the line is, the survey might disagree on the location of his existing garage. Mr. VanBuren’s survey shows his existing garage 1ft. inside the line and Mrs. Johnson’s survey shows the garage on the line. The line might be where it should be.
Mr. Pringle said that he would like both property owners to agree on were the line is before he issues the permit.
Mr. Virginia asked Mrs. Johnson that if they allow the variance of 3ft which means he will be moving the garage away from their property towards Mr. VanBuren’s house, that she and Mr. VanBuren will agree that it is not on her property and away from her property and it satisfies the 3ft. He said Mr. VanBuren can stake it and Mr. Pringle can check it before he issues the permit.
Mr. Abold asked if there is not a discrepancy on the property line, than his pins ought to be very close to hers.
Mr. Virginia and Mrs. McBurney stated that they should be the same.
Mr. Abold said that when Mr. Pringle goes to look for them, they ought to be able to match up the line fairly easy without the cost to either one of them.
Mr. Virginia said that if the pins are there they could string a line through them.
Mr. Pringle stated that he just didn’t want Mr. VanBuren to have to wait another month because he has lost a lot of time at work to get this project started and he has been trying to work with him.
Mr. Virginia asked Mrs. Johnson if that was agreeable with her.
Mr. Johnson said yes that she always believed the line is where it is and the pins are visible and they have always have been.
Mr. Abold and the Board had a discussion about how close the garage would be to the line.
Mr. Virginia said that he was going to put a condition in the resolution that would have Mr. Pringle verify the stakes.
Mr. Pringle stated that he wanted to verify it with both property owners. He said he wants to make sure every one is in agreement on were the line is.
Mr. Virginia said that he could give Mr. VanBuren the 3ft variance and he would have to abide by it before Mr. Pringle gives him the permit.
Mr. VanBuren stated that if they go by Mrs. Johnson’ survey he would lose a foot because her survey says that it is right on the line and his says that it is over a foot away.
Mr. Pringle said that it might not be the property line it might be the placement of the garage on the survey that is wrong.
Mr. Virginia said right now according to her survey the corner of the garage is on her property.
Mr. VanBuren said that according to his survey it is a foot and something over.
Mrs. Johnson said that if they stand at the marker that is in the back and look for the other markers they can’t be seen because the garage is in the way.
Mr. Virginia asked if it was right on the line.
Mrs. Johnson said that she would have to have another person stand there because with one person they can’t tell.
Mr. Abold asked if the new garage would also be on their property if it were moved over 2ft.
Mrs. McBurney said no because it would go in that many feet.
Mr. Abold said that the only discrepancy is the old garage.
Mr. Pringle stated that it wouldn’t make any difference how many feet because they are measuring off the line and the line is what they have to determine is right.
Mr. Abold said that it is hard for the Board to give a variance.
Mr. Pringle said there can’t be two lines; he just wants to make sure the parties involved can work this out.
Mr. Abold asked if the Board should put the variance according to Mrs. Johnson’s property line which is already staked.
Mr. Bowes said that they can’t go off of her property line because it is not her property that the Board is dealing with; the Board is dealing with his property, they have to deal with his survey.
Mr. Pringle said that it is a common line.
Mr. Bowes said that between the two neighbors they have to rectify where that line is.
Mrs. McBurney said that if the Board said that it has to be 3ft off the property line, if they find the line…
Mr. VanBuren said that if they go off Mrs. Johnson’s survey than that would only be 2ft. and if they go with his survey and its 3ft that’s fine.
Mrs. McBurney said that they can’t go by where that old garage is; they have to go by where the property line actually lies between those properties, so start fresh, and measure from there and go in three feet. The garage may end up being half a foot shorter or something depending on these old measurements.
Mr. Abold said than make sure the variance is correct and shorten the garage up if he has to.
Mrs. McBurney said yes, he has to be 3ft. off that property line.
Mr. VanBuren said that if they go with his survey that’s OK but if they go with hers it will only be 2ft.
Mr. Virginia said that they have to find out which property line is right.
Mr. Abold said that he was just saying for the variance purposes.
Mr. Virginia said that the variance purposes are from the property line and there is only one property line.
Mr. Bowes said that the point is he’s asking for 3ft off the property line, if the Board gives him 3ft off the property line than that’s what he’s held to regardless of where the property line is.
Mr. VanBuren said that if they go with his survey that’s OK but if they go with hers it will only be 2ft.
Mr. Abold said that Mr. VanBuren will have to verify where the property line is to Mr. Pringle legally somehow.
Mr. Virginia asked the applicant if he wanted to go twenty feet from the house.
Mr. VanBuren said yes.
Mr. Virginia asked if the applicant wanted to go 18ft west.
Mr. VanBuren said yes, the garage would come in 3ft because it was 22 ft. before and on his survey it another foot or so. That is how they came up with the3ft. He said he would be in farther than three feet from his line from his survey but with her line he would be less than that.
Mrs. McBurney told the applicant that there is only one line and he needs to build his garage 3ft from that line.
Mr. Virginia told the applicant that there has to be a closure somewhere on that lot and he asked if there were stakes out by Commane Rd.
Mrs. Johnson said yes.
Mr. Virginia said that they need to get a copy of Mrs. Johnson’s survey and tape between the pins north and south on the east and west boundary and see if that’s closed right. Mr. Pringle may be right in saying that it’s a bad location with the garage.
Mr. Virginia asked the applicant if the garage was there when he bought the house.
Mr. VanBuren said yes.
Mr. Pringle stated that he thinks at one point it was one big lot with two houses on it and than a subdivision was done and than another subdivision for the little triangle piece of property transferred from one to the other. He said that there might be some history on that, which might help.
Mr. Virginia asked Mr. VanBuren if the Board gave him the variance for three feet and it turns out that her survey is correct and his garage is wrong, than his garage becomes a 19ft garage on that one side, would that be a problem.
Mr. VanBuren stated that would be a problem with a garage door and an entry door because it would shorten it down, he would have to figure it out to see if it would actually fit or not.
Mrs. Johnson gave Mr. Virginia a copy of her survey which he looked over.
Mr. Virginia said that according to this survey the corner of the garage is on the property line.
Mr. Pringle said that he is not sure if the garage is wrong or the line is wrong, the line just might be correct.
Mr. Virginia said that if the Johnson’s survey is correct, than his survey is wrong with respect to the south east corner of the garage. If that is the case than a 3ft dimension won’t allow him to put a 20ft garage.
The Board had a discussion about the dimensions of the garage.
Mr. Virginia asked the applicant if he measured the south side of the house to the corner of the garage.
Mr. Pringle said that they did an approximate from the house on the east side of the garage; from the house out to the end of the garage is 261in.
Mr. Virginia said that was 21ft 9in.
Mr. Pringle said that was from the east end of the garage to the house.
Mr. Virginia said that if they assume her survey is correct and the garage is on the property line.
Mr. Pringle said that the house and the current garage are seven feet apart and he thinks it would work because the current garage is 20ft and then he has 7ft. so he has 27ft to work with. If he puts the garage right up tight with the house it would work.
Mr. Virginia asked to see the dimensions.
Mrs. McBurney said that it looks like the garage is only 14.9ft across the front.
The Board and Mr. Pringle had a discussion about the dimensions that exist on the property.
Mr. Virginia said that a two foot variance would work.
Mr. Pringle said that to go less than 3ft the garage would have to have non-combustible siding facing the property. It would have to have metal siding, block or brick; it can’t be made out of wood.
Mr. VanBuren asked if he could put firewall inside the garage on the outer wall and then siding outside.
Mr. Pringle said that he could do that. The purpose is to stop the spread of fire from his garage to the Johnson’s.
Mr. Virginia said for the interior of the garage.
Mr. Pringle said yes.
Mrs. Johnson and the Board had a discussion about a problem with the driveway rights on their properties.
Mr. Virginia asked if anyone wanted to speak to this matter.
Mr. Virginia closed the Public Hearing.
Mr. Virginia proposed the following resolution Z-06-21:
Thomas J VanBuren of 112 Commane Rd. extension seeks an area variance from
Section 200-45 of the Town of Van Buren Code related to the setback requirements for a proposed garage structure. The property is located in an R-40 District and is identified as Tax Map parcel 037-01-08. Applicant proposes to construct a 20’ x 18’ attached garage on the parcel to replace an existing one. The Zoning Code requires a minimum of 15 feet for the side yard setback and 15 feet for the rear yard setback in an R-40 District.
Mr. VanBuren’s proposal provides for a 3 foot side yard setback and a rear yard setback of 2 feet.
Mr. VanBuren spoke in favor of the application. He described the plan and the circumstances under which the attached garage is to be constructed. Mrs. Johnson, a neighbor of the applicant, raised issues with the small setbacks at the meeting held August 21, 2006 and September 18, 2006.
In support of the applicant, applicant submitted an Application for Variance, Agricultural Data Statement, Notice to Surrounding Property Owners and a survey map showing the location of the house and garage.
Based on the foregoing, the Board resolves as follows:
1. This matter is a Type II under SEQR as it involves an individual setback variance related to a single family residential use.
2. It is determined that 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 attached garage will be located 3 feet from the side property line and 2 feet from the rear property line. Due to the lots topography 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 to the neighborhood or district. Neighbors expressed no objection to the variance.
The benefit to the applicant outweighs any detriment to the neighborhood or community as a result of granting the variance.
3. A variance is granted to allow for the location of a attached garage with a side yard setback of 3 feet and a rear yard setback of 2 feet. Dated September 18, 2006. Mrs. McBurney seconded the resolution, there was no further discussion.
Roll Call Vote:
Aye Nay Other
John Virginia v
Robert Cleverly v
Laura McBurney v
Ronald Abold v
James Bowes v
Vote: 5 yes, 0 no, 0 absent; motion carried
APPEAL – L.G. ENTERPRISES, PINNACLE HILL DEVELOPMENT
Herman Rd. Tax Map Parcel # 054-03-16 IND Zoning District
Appeal from decision of Code Enforcement Officer – Revoked Building Permit
Mr. Virginia stated that the Board is here to hear an appeal by L.G Enterprises related to the reinstatement of a revoked permit # 7083 for enclosed storage which is a permitted use. According to the applicant he states that the permit was legally issued by the Town Planning Board by Motions 03-44 and 03-45, there were no developers fees billed for this site plan and use, there was no safety and nuisance issues, substantial completion of the building has been done and there are vested rights.
Mr. Michael Kempisty was present to address the Board
Mr. Kempisty said that he is representing L.G Enterprises and the Board can see by the first part of the papers that he gave the Board; it is divided into basically three things. The first being information that he believes proves their point, the other is the bills from the Town engineer and the Town attorney’s and the other is a copy of some information from a book which is basically NYS Law as it’s gone through the courts. He said that they are looking for the reinstatement of the revoked permit that they believe Mr. Pringle revoked illegally.
Mr. Virginia asked Mr. Kempisty to explain why he thinks Mr. Pringle did that.
Mr. Kempisty said that if the board looks on the second page of the packet he handed out, the Town Code allows revocation of permits by the code enforcement officer which is 200:86 a – d, none of those issues, none of a thru d fit the situation at hand. He said that he spoke with Mr. Pringle previously because he wanted to know on what basis he was revoking this permit and he asked Mr. Pringle which specific item a thru d, which he revoked it on and Mr. Pringle said no to a, b, and d and that c was a grey area and he doesn’t believe it is a grey area.
Mr. Kempisty read the Town Code in which he was referring to.
Mr. Kempisty said that he wants to prove that this is a separate and distinct permit that was legally given and if the Board looks at the third sheet, Appeal for the revoked building permit they can see that everything that pertains to the enclosed storage basically was done in 2003, it was a separate map, separate and distinct from the application after that. the enclosed storage was a use that they went in for to put up a building and they filed a distinct application for it, paid a distinct amount of money, gave $500 as a fee which the Board can see in the letter from the Town, signed by Mr. Pringle showing that it’s 4/17/03 stating that the $500 was sufficient because the project was very minor in nature, the original project that they went in on for the enclosed storage was 1 acre or less which didn’t
require any involvement with the engineer and it was a separate map done by Lighten it seems to be getting over into the special permit plan which was done by Naparella and was much more detailed and more of a problem. The enclosed storage was a simple, straight forward application for a building of which the code shows that Mr. Pringle does not have authority to revoke under that premise and that’s the Town code.
Mr. Kempisty said that the Board can see on the next sheets copies of the minutes from the Planning Board. The Motion is there.
Mr. Kempisty read the Motion to the Board. He stated that there were no contingencies, nothing, and there shouldn’t have been because it was a separate and distinct permit. He asked the Board to look at the second page, he said that he has tried to categorize this so that the Board can see the distinct difference between the two application he submitted to the Town, if there are any, if they go to the bills, the top sheet of the bills of the second packet with the attorneys and engineers bills the Board can see the top sheet is a copy of the file from the Supervisor showing where the fees were given and what was deducted and when. The Board can see a major gap showing they gave $500 for the original small minor enclosed storage site plan of which no fees were taken which is not unusual for the Town to do on small
site plans because there isn’t any reason to take them. There isn’t any consulting that has to take place and he believes Mr. Geiss said at the Hearing that the Planning Board wouldn’t want to prevent anyone from building buildings.
Mr. Kempisty said that the Board can see the permit that they got, it says specifically on it for enclosed storage, a permitted use in the Town requiring no special permits from this Board. One of the things Mr. Pringle revoked the permit without any due process which due process he thinks requires notification for the revoked permit which they were given none. Mr. Pringle sent a letter specifically stating with a copy of the permit marked revoked. He said that they had to stop construction of which they were right in the middle of having a mason put up some masonry wall; this property has vested rights at this point because major expense has been expended on this property to get to the state they are at. Based on that vested rights the Town can not arbitrarily revoke a permit, it is along the lines of a non-conforming
use; the government can not come in after you have reached a certain point and take away your rights. That original permit is the right to build a building, all the fees, what were required were paid and the Town and Mr. Pringle came in and revoked it with great hardship for their situation. They are coming into the winter season now and this has been going on for three months, the building should have been done by now.
Mr. Virginia asked if the permit was revoked three months ago.
Mr. Pringle said June 16, 2006.
Mr. Virginia asked Mr. Kempisty why he has waited so long to come before the Board.
Mr. Kempisty said that he has tried dealing with Mr. Pringle and showing Mr. Pringle all of this information so that they wouldn’t have to come before the Board because he thought it was a common sense situation. He thought with all of the attorney power this Town has some consultation would have taken place; they would have looked at the attorney bills and seen it.
Mr. Virginia asked if the permit had been renewed because the permit states that it expires on 9/02/04.
Mr. Pringle said that it was not; Brian Kempisty called and asked if they needed to do anything to extend the permit because work was continuing and there are permits out there that just go on beyond their time, as long as work is in progress the permit is valid.
Mr. Virginia asked Mr. Pringle to give the Board his explanation of what is going on.
Mr. Pringle said that the original application from Mr. Kempisty, he did not want to pay according to the Town Legal and Engineering fee that the Town requires for such a thing, it is a $3000.00 Legal and Engineering fee deposit.
Mr. Virginia asked if it was for commercial.
Mr. Pringle said for Industrial without a special use permit or without any variances, just a plain site plan. Mr. Kempisty did not want to pay it, he thought $500 was more reasonable and he said he agreed that it was minor in nature as the Board can see in the letter that he wrote to them, the Board should also read the last paragraph that reads if they exceed $500 that they are responsible for it. Anything that is left over they get back and anything they go over they are responsible for. He said that he has no control over legal and engineering fees.
Mr. Virginia said that neither does this Board.
Mr. Pringle said that they are what they are. They did put up the $500 and the process began and on June 16, 2004 it went into a negative balance and has remained in a negative balance until today. The second site plan application was made by the same company, same piece of property and as the Board reads the minutes which were provided for the members, the Board will see where the Planning Board discussed other special use permit things that Mr. Kempisty wanted to do but it is all one business; he doesn’t think site plan fees were separated out. He said that he gets notices from the supervisor on not just Mr. Kempisty but on every one and when the properties go in the negative, he sends out the letters. A number of letters did go to Mr. Kempisty telling them that the account was in arrears and to please forward the
amount due, in his opinion that was their due process. Mr. Kempisty knew they were falling behind in arrears for many years, they argued with it by saying that it was not right and that they were going to fight it. He said he told Mr. Kempisty that was their right, this much time has gone on and the account now remains $4600 in arrears, he knows that they are working with or were working with the Supervisor to try to get it worked out and Mr. Kempisty asked if he could go to the supervisor and see if they couldn’t meet and try to negotiate the fees and he was told by Ms. Crego that there was absolutely no discussion and that’s where things are today.
Mr. Virginia said that there is something in the packet that Mr. Kempisty provided from the Town with developers fees for L.G Enterprises that dates back to 4/22/03 when they deposited the $500 as they said.
Mr. Pringle said that they did pay the upfront fee of $500 and $100 was the application fee.
Mr. Virginia stated that he sees the interest drawn on it and than on June 16, 2004, there was a fee of $1203.50 that put them in the negative arrears. He asked Mr. Kempisty if they were aware of this.
Mr. Kempisty said that they were very aware and he would just like to say also that what he didn’t mention when they gave the original additional $500 to bring that up to $1000 they gave that on the second site plan and he said that he stated to Mr. Pringle that this was $1000 and it was the maximum that they were going to go on this second site plan as far as fees. They said that they would reconsider the whole matter if it goes over that.
Mr. Virginia said that it was over that at that time.
Mr. Pringle said that they can’t put another $500 on a second site plan and call it $1000. It is $500 and $500 if you wanted to keep them separate.
Mr. Kempisty said that it’s talked about all the time Solvay Iron still has money in there.
Mr. Pringle said that their argument here today is two separate site plans.
Mr. Kempisty said exactly and they left the $500 in there because they went about their business and the $500 was in there.
Mr. Pringle asked on which one.
Mr. Kempisty said on the first.
Mr. Pringle said that they just said that they put up another $500 on the second.
Mr. Kempisty said that’s because there was $500 left.
Mr. Pringle said that if they put up another $500 it didn’t go onto this.
Mr. Kempisty said that if there are any fees due on the first site plan than they will give it freely. There are none and they have the bills. It was approved.
Mr. Virginia asked Mr. Spencer about the Town law in regards to fees owed by an individual or an enterprise; what is the status of that, what are the implications when someone owes on it.
Mr. Virginia asked Mr. Spencer if it was justification for revoking a site permit or is it even justification for even stepping in front of the Boards.
Mr. Spencer said yes, the impositions of fees for carrying the charges on the application are legal.
Mr. Abold asked if the applicant has two applications, if one is paid for and the second one is not and it is under the same business, is that still reason to revoke the first building permit.
Mr. Spencer said not necessarily, it depends on the Town’s protocol, how the Town imposes its own rules and regulations.
Mr. Pringle said that the Board should also know the second site plan has been withdrawn by the applicant and the applications to the ZBA for the special use permits have also been repealed by the applicant.
Mr. Abold asked if these were two completely separate issues or is there one issue here according to the Town.
Mr. Spencer said it appears currently according to the Town, the way the money has been accepted and processed it has been considered a unified set of events being processed under one name L.G. Enterprises, they haven’t segregated.
Mr. Abold asked if the Board has the right to separate that.
Mr. Virginia said that the ZBA does not set the rules for this.
Mr. Spencer said that the Town can re-configure or apply the deposits…
Mr. Abold said the Town not this Board.
Mr. Spencer said this Board doesn’t take the money or authorize its disbursement that is a Town Board function.
Mr. Virginia said that this Board never knows if there are monies in arrears or on deposit. The Board has no inclination of that.
Mr. Kempisty said again there are two site plan applications.
Mr. Spencer asked what the first one was for.
Mr. Kempisty said enclosed storage.
Mr. Spencer said Ok and that was the one…
Mr. Pringle said that it was on 4/17/03.
Mr. Spencer said and the second one was…
Mr. Pringle said that it came in on 7/02/04.
Mr. Spencer asked what that one was for.
Mr. Kempisty said that the second one was for special permits, accessories to the property.
Mr. Cleverly asked why the second plan was withdrawn.
Mr. Kempisty said that there were too many contingencies that this Board put on the special permits, some of them he considered unconstitutional such as the inspection with three days notice, he thought the attorney would certainly of given the Board some information, there is a State Supreme Court case that says someone cannot without the owners permission enter private property, commercial private property. He said that he has the quotes there if the attorney would like to read those. Why else was it withdrawn, the fees were, the average fee on both engineer and attorney, for the average site plan brought before this Board and the Planning Board over the last four years up to this time, because he has spent some time looking at it, the average fee was $1200. The average deposit was $1500 now Mr. Pringle said $3000 was
due. He has looked at all the applications and $2500 is the most. The most extensive site plan which he believes was Cannata and Duey Pile, now at the time Duey Pile was when he was looking at doing the research, Duey Pile was $900, Cannata was $2500 when they were done which was Lou’s Sunoco, were they got up to the point of $5600, he has no idea. He understands if they are doing a subdivision were they are going to be getting easements and dedications of roadways, were the attorneys are going to be looking at it left and right, he can understand that but this was on a piece of property in what he likes to consider in the rear end of the Town, totally away from everything going it is not Hess, it is not McDonald’s, it is not Dunkin Donuts were traffic studies are needed yet they had to go through traffic studies on Herman Rd. They had the County, and he has no idea of where they got their information from but somebody had to talk to them whether it was the engineer or
whatever, they had more contingencies and problems with that.
Mr. Pringle said that is with everyone’s.
Mr. Kempisty said that he has looked at everyone’s.
Mr. Pringle said that he could show the applicant countless cases including Jake Wright, everyone on Downer St., traffic study it is like a rubber stamp.
Mr. Kempisty said that he is not saying just traffic study; OK they want a traffic study fine, he is talking about everything.
Mr. Virginia said that one of the reasons that some of these the applicant cited go through real good and just from his experiences here, Duey Pile came in and had their engineer put a presentation on, and they came in and said that they had this done by an engineer and it takes them four months to look at one thing. Their engineer was never in front of the Board. That is how other applicants save money, they may have to pay it to the engineers but it saves the Town legal and engineering costs and he sees a lot of engineering cost in there and as an engineer he can understand it.
Mr. Kempisty said that he can not and he knows for a fact that regards to that bill, does anyone know what they did because he has no idea what they did.
Mr. Virginia said that he has no idea and that is not his responsibility.
Mr. Kempisty said that he knows that, but if the Board got a bill, lets say they took their car in to get it fixed and they said $1000 was all that they wanted to put into the car and than they go back and pick the car up and they get a bill for $5600 for things that they never had any idea, and they told them a $1000 was the maximum they wanted to go.
Mr. Virginia said first of all that is a bad analogy $1000 and they just wouldn’t put the engine in but the applicants argument in this appeal is really not something that he feels that this Board can resolve, he thinks they have a problem with the Town Board. By Town law if there is anything in arrears this Board doesn’t even have to talk to the applicant and he believes that goes for the Planning Board and everything stays stagnant until fees are brought into compliance. He asked Mr. Spencer if he was correct.
Mr. Spencer said that Mr. Virginia was correct.
Mr. Virginia said that the ZBA doesn’t establish those fees, control them or bill them; the Board has no idea what is going on with these fees, that is an issue with the Town Board. The Board has several things that they can do here; the Board can continue this and the applicant can provide more documentation…
Mr. Kempisty said that he has given the Board everything; he said that they can read…
Mr. Virginia said that they can provide more documentation for LG Enterprises, Lisa Getty, that they have authorization.
Mr. Spencer said that they should have an authorization from the person that is LG Enterprises, just because in the past the Board has had problems with people coming back in. At the County Clerk’s it says LG Enterprises is Lisa L Getty. So the applicant should just provide a letter from her authorizing that they can be representatives.
Mr. Kempisty said that they already have that in the file.
Mr. Spencer said that was in respect to the site plan stuff, they should just throw it in saying that they filed an appeal from a decision by the code enforcement officer and that she has authorized them to pursue that appeal.
Mr. Kempisty said back to the jurisdiction, this is the appeals board; this is the only place they can go legally and he thinks the attorney would agree with him. They are not really appealing the fees, the fees are separate, they are a part of it but it is only the fees that have been paid and they have proven that they have been paid because really there were no fees.
Mr. Virginia said than what are these other fees.
Mr. Kempisty said that is for the second site plan, they still have…
Mr. Spencer asked if that was for site plan or special permits.
Mr. Kempisty said that they need both for special permits, if they are changing a site with special permits than they have to do both, they have to go for recommendations.
Mr. Spencer said than the second application was actually a coordinated application for additional permits and site plan approval to go with those.
Mr. Kempisty said just because the Supervisor wants to lump them together, that doesn’t mean they lumped them together, they have documentation saying that they did not lump them together.
Mr. Abold asked Mr. Pringle if on the second site plan and the special use permits, this building was included.
Mr. Pringle said that the property was included; he doesn’t believe the building was because the special use permits don’t need a building per se.
Mr. Virginia said that he believes there were 5 special use permits granted for this.
Mr. Pringle said that it has a building but the special use permits are not necessarily tied into a building.
Mr. Cleverly asked Mr. Kempisty if what they were saying is that the fees were paid on the enclosed storage and the Town should be left holding the bag on the rest of it.
Mr. Kempisty said that he is not saying the Town should be left holding the bag, he’s saying he just wishes they could get together on some common ground here because they were over billed with regards to those fees.
Mr. Cleverly said that is not this Boards concern.
Mr. Kempisty said that he know it isn’t and he’s not bringing that up, the Board asked a question and he’s answering it. All he cares about is getting his brother a building permit that was legally given and paid for, for a permitted use that has nothing to do with the fees.
Mr. Cleverly said that he thinks they could use a legal opinion as to whether they are correct or the Town is.
Mr. Pringle said that it has to get resolved; he cannot give them a certificate of occupancy to use the building until the fees get ironed out because eventually when they call and want to use this building he has to take the Town engineer back with him to do a site walk down.
Mr. Kempisty asked if the engineer goes and looks at every building.
Mr. Pringle said every plan, every site plan he takes an engineer or their representative with him to do a final.
Mrs. McBurney asked Mr. Pringle what it costs for a building permit for enclosed storage.
Mr. Pringle said that building at the time that they got the building permit was based on the cost of construction for commercial. It is still the same today for commercial, it is like $1 per $1000.
Mr. Spencer asked if the building permit was paid for.
Mr. Pringle said yes.
Mr. Spencer said than that’s not an issue.
Mr. Pringle said no, if they go back under 200:81 in the code it states that a code enforcement officer cannot give a building permit on commercial property without site plan approval. He said Mr. Kempisty did jump through a lot of hoops and got Planning Board approval on that portion of the site and their building.
Mr. Spencer said for the enclosed storage.
Mr. Pringle said yes, and part of that are fees, once the fees are paid off…
Mr. Kempisty asked what fees were part of that, there is nothing in the bills to show anything took place as far as fees when that was approved or six months after that.
Mr. Pringle said that is were they disagree because the fees that keep coming back to him, the bills that are in arrears for this property keep coming to his desk for the site plan for LG Enterprises on that tax map number.
Mr. Kempisty said for the second site plan.
Mr. Pringle said that it doesn’t identify two different site plans.
Mr. Kempisty said that is an internal matter with the Town.
Mr. Pringle said never the less, the dates, the times the second application came in there was still $1700 owed on that property.
Mr. Kempisty said that the application went before this board here in April, if they look at the chronology that he gave it went before this board, at that point if there were fees due something should have been said. He said that Mr. Pringle did agree that $1000 was the maximum…
Mr. Pringle said that they hadn’t gotten approval yet.
Mr. Kempisty said that if these Boards don’t have the authority to hear anything after the money has been in arrears, than why do they continue to hear this and continue to take and bring the fees from $1000 to $5600.
Mr. Pringle said once they get to a certain point, in fact they did get a letter; he did talk to them telling them if they didn’t get paid up the Board was taking them off the agenda.
Mr. Kempisty said that was in August and as soon as they found out the fees he said that they protest, he said $1000, let’s get this thing figured out and they stopped it at that but in the meantime this Board, if they look at the delays in the bills the way they came in what would they do. It wasn’t a blank check that is the basic thing he’s trying to say; it was not a blank check. Not to get onto the fees if they look at the bills, he has been through them left and right, they had to go to Camillus…
Mr. Bowes said that has nothing to do with the issue as far as the Boards concerned; that is nothing they can use as criteria to make their decision.
Mr. Kempisty said the basic thing is, if they read this, this bolsters them 100%, the book he is referring to is NY cases. He copied it for the Board, revocation of building permits; they shouldn’t be revoked arbitrarily, capriciously unless it is a nuisance.
Mr. Bowes said that this isn’t arbitrary though, Mr. Pringle revoked it based on rules of the Town and the rules that they were given.
Mr. Kempisty said no they didn’t, the rules of the Town…
Mr. Bowes said that he didn’t just decide to revoke the permit out of the blue air.
Mr. Kempisty asked his brother if he knew that the permit was going to be revoked.
Mr. Brian Kempisty said that he didn’t know he just received a letter.
Mr. Kempisty asked his brother what the copy stated.
Mr. Brian Kempisty said that it just said revoked.
Mr. Abold said that he thinks that the major issue here is that, he’s going to ask again, he asked Mr. Spencer when the second site plan included this building but it also the fees were included in the whole project as a business. That would put that into one enterprise and than he can understand why the Town would revoke a building permit if they considered this one project.
Mr. Kempisty asked who they are.
Mr. Abold said the Town, the Town Board.
Mr. Kempisty asked if they had a hearing, a resolution.
Mr. Abold said that he thinks it is left up to the Town Supervisor.
Mr. Spencer said under the Town code it is the Supervisor who instructs the code enforcement office.
Mr. Abold said if this is considered one project than he can understand why this permit was revoked. If it is considered two projects, than this permit shouldn’t have been revoked and he thinks that is a question that someone needs to give a good solid answer to.
Mr. Spencer said that he agrees with him and they will have to go to the Town Board to get an answer or at least to the person that maintains the account.
Mr. Virginia said that he is going to have to go to the Town Board attorney and the Supervisor.
Mr. Abold said that he thinks that this conversation should be closed for tonight because they have reached as far as they can reach; the Board has to answer that question, is it one project or is it two, someone has to direct the Board in the right direction.
Mr. Pringle told Mr. Abold that when Mr. Kempisty told him that this was their defense, in their defense he did go and talk to Mr. Spencer, Denny Baldwin the attorney for the Planning Board, and he talked with the Town attorney Jim Stokes and asked if these two were separate and his answer to Mr. Pringle was that this was one site project, there may be multiple uses.
Mr. Kempisty asked who said that.
Mr. Pringle said that the attorney for the Town Board, Jim Stokes.
Mr. Kempisty said than Mr. Stokes should be here so they can hear that from him.
Mr. Pringle said that this is the start.
Mr. Abold asked if the ZBA attorney could talk to Mr. Stokes about it and discuss this because he thinks that is were the Board is at, he doesn’t think that they are necessarily saying the permit is right or wrong or what is happening they just need to find out how this operates because the Board doesn’t always get in to something like this.
Mr. Kempisty said that they got an approved application for enclosed storage; there is a second site plan for other uses which are not happening.
Mr. Abold said but they are on the same property, this is the question.
Mr. Kempisty said that he would also like to mention that they have vested rights, that in and of itself is a reason not to revoke the permit. They are beyond the point of revocation; that is a statement he would like to make, the Board can read about it in the papers that he provided.
Mr. Pringle asked what that was based on.
Mr. Kempisty said the building is 80% complete.
Mr. Pringle provided some photographs for the Board that showed the building in question. He told the Board that the pictures were taken from a neighboring property.
Mr. Kempisty said that he doesn’t think the Board can see the concrete and asked when the picture was taken.
Mr. Pringle said last week and that he couldn’t take pictures of the concrete because he couldn’t go on the property.
Mr. Virginia asked if it was a 40’ x 80’ structure.
Mr. Pringle said that this is the structure in which they are referring to.
Mr. Virginia said this is 80 percent complete.
Mr. Kempisty said that they have the materials.
Mr. Brian Kempisty said that it is 80%, that there is a 4ft concrete wall there and all the steel to the building is to the side.
Mr. Virginia asked if it was a block wall.
Mr. Kempisty said yes.
Mr. Virginia said that he can see the blocks lying on the ground.
Mr. Pringle said that it is a used building, it’s not a new building that has been there so long it looks like that; it is a used building that they purchased and relocated to the site.
Mr. Kempisty said now they are talking enclosed storage, what is enclosed storage.
Mr. Pringle said it is the use of a building for storage.
Mr. Kempisty said enclosed.
Mr. Pringle said yes.
Mr. Kempisty said that as soon as the block was done they were going to put up the steel, they are 80 percent there. The driveway is in, the gravel is around the building and much expense has been put into the gravel, much expense has been put in to putting that structure up, all that is needed is to screw the steel to the building.
Mr. Virginia asked if Mr. Kempisty would let him go out and look at the building.
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