**TOWN
OF GRAND ISLAND**
ZONING BOARD OF APPEALS
July
1, 2010
MEMBERS
PRESENT:
Dario Violanti, Bob Mesmer, Marion Fabiano, and Chairman Peter McKee
MEMBERS
ABSENT:
Betty Harris and Alternate member, Tim Phillips
OTHERS PRESENT:
Bill Shaw & Dan Linenfelser, Zoning Officers
Dan Spitzer, Town Attorney
Chairman,
Peter McKee opened the meeting at
7:00 p.m. He introduced the members of the Zoning Board of Appeals and explained
the process. Copies of the Legal
Notice of Appeal to be heard at this meeting published in the Island Dispatch on
June 18, 2010 were available to those
present.
NEW
BUSINESS:
1) SBL # 36.01-1-59.1
– John Yensan
The
property is zoned R1A. The
Applicant is proposing to split the lot to create two building lots.
Item
was postponed until next month; Applicant is changing some information on his
application.
2) 139 Autumnwood
Drive – Kenneth W. and Susan Carter
The
property is zoned R1D. The
Appellant appeared and stated that they are proposing to construct a 50’ x
36’ wide garage/pool house on the wooded lot adjacent to their house. The structure will be a single story with a hip roof. He
has previously combined both lots into one.
If he were to split the lots, he would have a full buildable lot.
He has three cars that he pays to store during the winter, which costs
him quite a bit of money. The
proposed structure was to be 22’ high, but will actually be 19’ after
inspecting the trusses. The
building will match the existing house. Truss
height is 9 ½ ‘with an 8’ garage door.
Per Section 49-166E of the Town Code, the maximum height of an accessory
structure is 18’, the proposed structure is 19’, therefore a 1’ height
variance is requested.
Also,
per Section 49-16A of the Town Code sets the maximum number of garage spaces at
4, there already exists 2, the proposed structure would add 5 more spaces,
therefore a variance for 3 additional garage spaces is required.
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07/01/10
The Applicant stated that
the first 25’ of the proposed structure will be garage space, and the
remaining 25’ will consist of a pool house, a bathroom with a shower, an
outdoor kitchen and counters. There
will be no commercial use.
After hearing the
neighbors’ objections to his removing the trees to construct the proposed
building, Mr. Carter indicated that the trees are coming down anyway because the
moisture is ruining his home. He
replaced the roof 10 years ago & it needs to be replaced again.
Speakers
opposed:
-Larry
Fetzler, 106 Amberwood:
Trees, drainage concerns, structure will cover 2056 s/f of land, storage
of commercial items, questions construction techniques, storm sewer easement,
decreased home values.
-John
McCoulf, 84 Autumnwood:
Deed restrictions, future use of building, 2,000+ s/f warehouse not
suitable for a residential neighborhood.
-Suzanne
Volante, 122 Amberwood: Trees, deed
restrictions, home value.
-David
Wolf, 114 Amberwood: Requested specs
of the property, drainage issue.
-John
Cook, 63 Autumnwood: Traffic, trees,
building will be a warehouse.
-Michael
& Amanda Karnath, 132 Autumnwood:
Safety of small children, residential area, construction vehicles, concerned
about commercial use, home value, and no attributes to the neighborhood.
-John
Kackmann, 75 Autumnwood: Deed
restrictions, size of garage could possibly hold 8 cars; there already are 2
garage spaces, boat storage, lift device for maintaining vehicles.
-Amy
McMann, 146 Autumnwood:
Questioned whether or not the proposed building could be sold separately
from the existing home.
Board Member Fabiano
requested that the project be redesigned to make the building smaller.
Town Attorney Dan Spitzer
suggested that the ZBA could add a restriction to the variance that Mr. Carter
maintain a 5’ buffer of trees or shrubbery.
The Applicant is requesting a variance for a garage and a pool house, but
since pool houses are a permitted use in the area, the Applicant could build a
pool house which would not require a variance; however, he would not be able to
park cars in the structure.
A motion was made by Violanti / Fabiano to TABLE the request for a 1’ height variance as well as a variance
for 3 additional garage spaces for the construction of a garage / pool house on
the wooded lot adjacent to the home at 139
Autumnwood Drive pending recommendation from the Architectural Review Board.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
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07/01/10
Rationale: This
action is taken because:
1.
the Board would like the input of the Architectural Review Board on
whether or not this project will blend into the neighborhood and whether or not
it will match the existing home.
3)
618 Alt Blvd – Robert Gesl Jr.
The property is zoned R1A.
Appearing was the Appellant along with Contractor David Bruno.
They are proposing to bump out the existing attached on the front of the
home which will match the other side of the home.
Addition will not extend any further the front of the existing home.
The Applicant would like to convert the back portion of the existing
garage into usable living space. The
proposed addition would have a front yard setback of 43’.
Per Schedule 1 of the Town
Code, the minimum front yard setback in an R1A zoned area is 50’.
Therefore a 7’ front yard setback variance is being requested.
A motion was made by Fabiano / Mesmer to GRANT a 7’ front yard setback variance for the construction of an
attached garage at the front of 618 Alt
Blvd.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
Rationale: This
action is taken because:
1.
the requested variance will not produce an undesirable change in the
character of the neighborhood.
2.
the requested variance will not create a detriment to nearby properties.
3.
the requested addition will be kept inline with the existing home.
4) 2170 Whitehaven
Road – Cannon Design
The
property is zoned TCOR. Appearing
on behalf of Cannon Design was James Raeberg, 16 Allen Street, Buffalo New York,
Vice President of Cannon Design on Grand Island. They are requesting a variance to replace an 8’ x 4’ x
5’ existing ground mounted sign at the entrance to their property with a 9’
x 7’ high sign.
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07/01/10
Per
Section 49-15.2.2.4C of the Town Code sets the maximum size of ground mounted
business signs in TCOR zoning at 6’ x 6’ therefore a 1’ height variance
and a 3’ length variance is required.
Current
sign runs parallel with Whitehaven Road, which means it is impossible to read.
They’ve just completed a multi-million dollar upgrade interior design
project and would like a new sign to make Cannon easier to find.
The sign will be located on Cannon’s property line parallel to
Whitehaven 87’+ / - from the center line of the road.
The lettering will be 10.75”.
Speaker:
-Bob Kaiser, 1045 Ransom
Road: Chairman
of the Trustees of Trinity United Methodist Church, after looking at the file,
he had no objection.
A motion was made by Fabiano / Violanti to GRANT a 1’ height variance as well as a 3’ width variance for
the construction of a new sign at 2170
Whitehaven Road – Cannon Design.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
Rationale: This
action is taken because:
1.
the requested variance will not create a detriment to nearby properties.
2.
the requested variance will not produce an undesirable change in the
character of the neighborhood.
3.
the board recognizes that with current signage, customers have difficulty
finding the building.
5) 997 East River
Road – Donald R. Turner
The
property is zoned B2. Appearing
on behalf of owner was Attorney Jeff Palumbo of Damon and Morey.
An area variance has been requested to remove a condition / limitation on
a previously granted variance to use the existing deck to entertain patrons.
The decision of the ZBA in December of 1981 was that the deck was to be
used as an emergency exit only.
Attorney
Jeff Palumbo stated that his client is requesting a modification to a variance
which was granted in December of 1981 for a stairwell with the provision that
the existing deck not be used for restaurant purposes.
Mr. Palumbo stated that there was a legislative determination on Grand
Island that decks are allowed in B2 zoned district.
Outdoor patios are allowed for restaurants and bars.
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07/01/10
He
continues to say that New York law states that Zoning Boards are not able to
impose conditions that are unrelated to the purposes of the use of the property,
nor can a Zoning Board impose conditions that seek to regulate the details of
the operation of an enterprise rather than the use of the land upon which that
enterprise is located. So, the ZBA
has to deal with the use of the property. In this case, it is a restaurant / bar that has been there,
probably, prior to 1930. 997 East
River Road is a restaurant with a bar. This
deck or outdoor patio structure has been in use for over 30 years as part of the
operation. There is no surprise
here that the deck was being used. In a copy of the Grand Island Record from
1998, an article outlined the history of the property going back to 1930.
In the last paragraph it mentions the docks, the deck and the
restaurant’s famous steak sandwiches. It’s
common that a restaurant on the water has an outdoor patio to enjoy the views.
As
for the argument that the deck will create noise, Mr. Turner moved the outdoor
speakers indoors ten years ago. Whether
or not the deck is used, the windows are going to be open and there will be
noise, it’s a bar. It’s been
there for 30 years. Many people who
moved into the area moved in knowing full well that this facility was there.
As
for the argument that use of the deck will create an increase in traffic, Mr.
Turner stated several years ago that 75% of his business is generated from the
water. That may not be the case
today, due to the economy and people boating less often. If there wasn’t a bar at this location for the past 30
years, the issue of traffic would hold more weight, but that is not the case
here.
Parking
is the most confusing part of this thing. 997
East River Road is all one lot which is divided by the road.
The riverside portion of the property is zoned B2 and the other portion
is zoned residential. They feel that the parking is legal and available for use by
the restaurant. Attorney
Spitzer’s September 16, 2002 letter confirms what Attorney Palumbo is stating
today, that there is split zoning of the parcel, and he concluded that the
parking must be on the same lot as the business and that this property is one
lot for both zoning and tax purposes and that parking on the residential lot was
legal and that any change to the Zoning or parking regulation code is
irrelevant.
Attorney,
Dan Spitzer said that the laws have changed since his letter was written in
2002. Original rationale of the
Board was that if there was a deck it would create noise and parking problems.
It was originally approved not as a deck for the restaurant but as
structural support for the building. Mr.
Turner’s predecessor put a deck on, his neighbors turned him in and the Town
said that he could have the staircase, but not the deck.
They sued the Town, eventually the Town won.
While it has been used for 30 years, it’s never been used legally as
far as the Town is concerned. Attorney Giacalone’s key points, the ZBA should
focus on is what the detriment or benefit is to the community.
Attorney Giacalone says that this should be looked at as a de nouveau
request for a variance, would you grant that area variance today for an existing
bar. As for Attorney Palumbo’s argument, that if you don’t grant this
variance, there is
Page
6
07/01/10
nothing
to keep him from operating the bar. There
is nothing before the Town that would close down the bar.
The other issue with Attorney Palumbo’s argument is there is some
evidence that part of the rationale of the ZBA’s denial 30 years ago was to
limit the parking problems; the Town Board’s opinion is that parking on the
residential lot is illegal. When they looked at aerial photos, it appears that the
parking is in the right of way. It
is a non-conforming use & they cannot find evidence that the lot was used
continuously for parking since it was made non-conforming in 1970 or so.
The Applicant has not applied for a Use Variance, and Attorney Spitzer
stated that he thinks they are both related and that you cannot address one
issue without addressing the other. Even
if the ZBA said yes to the deck, there still is an issue of illegal parking.
If Mr. Turner came in for a Use Variance and it was granted, he would
also need a site plan.
Attorney
Palumbo respond by saying that apparently in 2002 the lot wasn’t being used
illegally or parking because Attorney Spitzer’s memo states is wasn’t being
used illegally and that any change in the parking or Zoning regulations under a
new Codes would be irrelevant because this is considered to be a legal, prior
non-conforming use. The memo of
September 2002 concluded that parking was legal; therefore, Attorney Palumbo
didn’t apply for a Use Variance. Section 49-10-D6 states that with split lot
zoning, the larger or the two parcels determines the permitted uses.
It says it applies when uncertainty applies with respect to the
boundaries of those districts, so this section doesn’t apply, so then we go
back to the 2002 memo which says that it is a valid use.
Attorney
Spitzer indicated that that was his opinion in 2002, however, in 2005 the Zoning
Code was changed, it states that the zoning is controlled based on the larger
size of the lot, we did some calculations and it looked to us as though the
business side was bigger. However,
Mr. Giacalone stated that the tax maps incorrectly extended out into the Niagara
River and that the deed ended at the waters edge.
Therefore, the business zoning is the smaller of the two, which turns the
bar into a non-conforming use. They
disagree with how the section applies Attorney Spitzer believes that section
applies when there is a lot in two districts, and Attorney Jacobi believes it
only applies when there is a dispute over the boundaries of the lot. That
is why Attorney Spitzer feels a Use Variance is required, and he doesn’t think
the ZBA could turn it down because the residential portion of the lot is way too
small for a house.
Attorney
Jacobi said that there is no notice of violation since 1981, in the file,
relative to the use of the deck, and at that time decks were an allowable use in
a B2 zoned area. Attorney Spitzer
indicated that the use of the deck wasn’t in question, but rather the location
of the deck being within the allowable setback area. Attorney Jacobi said that that issue was not on the original
application, the
application
is unclear. He offered to sit down
with Attorney Giacalone to work out some type of compromise, but it never
happened.
Attorney
Spitzer believes that the Zoning Board needs to have all the information in
front of them to make a decision. They
should listen to everybody speak on the issue, encourage the two parties to work
this out, and hold an Executive Session between now and the next ZBA meeting to
sort this entire situation out.
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7
07/01/10
Speakers in
Opposition:
-Attorney Arthur
Giacalone, 140
Knox Rd, East Aurora, NY 14052, speaking on behalf of Mr. Dave Thomas and Mr.
Glenn Wallace.
#1)
New York State Town Law, Section 267-a, Board of appeals procedure Mr.
Turner unsuccessfully attempted to gain relief from the condition in an Article
78 proceeding brought in Sate Supreme Court in October of 1982, the item was
dismissed as time-barred.
#2)
The Applicant took the item to the Appellate Division, which unanimously
affirmed the dismissal on November 4, 1983 – failure to exhaust administrative
remedies.
It
is Attorney Giacalone’s opinion that is a “rehearing” which would require
a motion for the ZBA to hold a rehearing to review any order. A
unanimous vote of all members of the board then present is required for such
rehearing to occur.
Also,
a condition of the 1981 variance stated that the use of the deck by patrons is
not allowed / prohibited by the applicable zoning regulations.
Given the nature of the condition attached to the 12/17/83 area variance,
the Applicant should be required to meet the standards for a “use variance”.
According to the appellate courts of this State, Mr. Turner may not be
granted a “use variance” because this is a self-created hardship”: When he
became owner of the property, the condition that he seeks relief from was
already in existence.
-David Thomas – 1044
East River Road
Owns
home directly across the street and a cottage next door to Turner’s.
Concerns: noise, lack of privacy and the visual impact.
He believes the noise come from deck and parking area.
-Glenn Wallace – 917
No. Colony Road
Owns
home down the road from Turner’s. Concerns:
noise and privacy.
-Gary
Novits – 892 No. Colony Road
Concerned
about non-conforming use status, doesn’t want any change in neighborhood.
-Mary Kuczynski – 1014
East River Road
Concerned
about noise & illegal activity.
Speakers in favor:
-Michael Gast - 1930
Baseline Road
-Lisa Caldwell - 208
Hennepin Road
-Amos
Caldwell- 208 Hennepin Road
-Tom Rall - 601
East River Road
-Mark Merletti - 2476
East River Road
-Don Turner Jr.,
- 997 East River Road
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07/01/10
-Carol Gross - 1550
Whitehaven Road
-William Bradle - 43
Brenden Ave, Kenmore, NY
-Mike Geblein - 2852
Baseline
-Mark Steward - 149
Marilyn Drive
-John Smith - 358 East River Road
-Eric Willson – 425
North Ivyhurst, Amherst, NY
-Michelle Moore – 3304
Warner Drive
-Deborah Schoenle – 31
Ward Park
-Charles Internicola –
26 Marilyn
Drive
Public
hearing was closed.
A motion was made by Fabiano / Violanti to TABLE the request for relief from a condition / limitation on a
prior variance for a deck off the back of the property at 997 East River Road.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
6) 45 Greenside Drive
– James A. Gately
The
property is zoned R2. Appearing on
behalf of the property owner was Attorney Richard O’Robinson.
His client has requested a 5’ rear yard setback variance for the
construction of a deck on the back of the house such as those his neighbors have
constructed. The proposed deck
would have a rear yard setback of 25’.
Per
Schedule 1 of the Town Code, the minimum allowable rear yard setback in R2
zoning is 30’. The property backs
up to the golf course.
Speaker in favor:
-David Gillen – 13
Greenside Drive
-Ronald Ciamaga – 61
Greenside Drive
A motion was made by Mesmer / Violanti to GRANT a 5’ rear yard setback variance for the construction of deck
off the back of 45 Greenside Drive.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
Rationale: This
action is taken because:
1.
the requested variance will not create a detriment to nearby properties.
2.
the requested variance will not produce an undesirable change in the
character of the neighborhood.
3.
this is the same variance granted in the past.
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9 07/01/10
7) 2499 First Street-
David Stoklosa
Item
is tabled until the August 5, 2010 ZBA meeting.
OLD
BUSINESS:
1)
West River Road – Nixon Peabody LLP
– Proposed telecommunication tower on Russell & Patricia Colosi’s
property on West River Road. Zoning
Code 49-196C states that the setback for a telecommunication tower is 500’
from a residential dwelling. The
proposed tower will be approximately 442’ from the Colosi residence; therefore
a 58’ setback variance is requested. A
negative declaration of environmental significance for purposes of SEQRA was
received from the Town Board. Although
the Public Hearing was previously conducted and subsequently closed, the Board
did allow the following speaker:
-Michael
Zolkowski, 1701 West River Road –
opposed to tower. Mr. Zolkowski
mostly spoke about the variance from the tower height under 49-203© before the
Town Board rather than the variance before the ZBA.
He did not offer any alternative site.
A motion was made by Violanti / Mesmer to GRANT a 58’ variance from the provisions of Section 49-196 C of
the Zoning Code for the construction and operation of a wireless
telecommunication facility on property owned by Russell and Patricia Colosi, tax
map number 50.17-01-3.12.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
Rationale: Approval
of Area Variance:
WHEREAS,
Upstate Cellular Network d/b/a Verizon Wireless (“Verizon Wireless”) has
applied to the Town of Grand Island (the “Town”) to construct and operate a
wireless telecommunication facility (“Fix Road Cell Site”) on West River
Road, on property owned by
Russell and Patricia Colosi, having tax map number 50.17-01-3.12 (the
“Property”); and
WHEREAS,
Section 49-196(C) of the Town of Grand Island Zoning Ordinance (“Zoning
Code”) requires that all telecommunication towers be set back a minimum of
500’ from any residential dwelling, school, or historic structure; and
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10 07/01/10
WHEREAS, the
proposed Fix Road Cell Site tower will be approximately 442’ +/- from the
residence owned by Russell and Patricia Colosi but will be more than 500’ from
any other residence; and
WHEREAS,
Verizon Wireless, by
application dated November 1, 2007, applied to the Zoning Board of Appeals
(“Zoning Board”) for an area variance and applied to the Town Board of the
Town of Grand Island (“Town Board”) for a Tower Permit and Site Plan
approval for the Fix Road Cell Site (the “Application”); and
WHEREAS,
the Town Board declared its intent to be Lead Agency in accordance with the
New York State Environmental Quality Review Act (“SEQRA”) for the
Application; and
WHEREAS,
the Application was duly referred to the Erie County Planning Department,
pursuant to General Municipal Law § 239-m; and
WHEREAS,
on November 16, 2007, the Erie County Planning Department reviewed the Fix
Road Cell Site and determined the Application to be a matter of local concern;
and
WHEREAS,
on December 6, 2007, the Zoning Board held a public hearing on the Fix Road
Cell Site and representatives of Verizon Wireless and the public were afforded
the opportunity to speak regarding proposed area variance; and
WHEREAS,
on June 21, 2010, the Town Board, as SEQRA Lead Agency determined that the
Fix Road Cell Site would not result in any significant adverse environmental
impacts and issued a negative declaration of environmental significance for
purposes of SEQRA; and
WHEREAS,
the Zoning Board is fully familiar with the proposed location, surrounding
parcels, and the larger neighborhood regarding the Fix Road Cell Site; and
WHEREAS,
the Zoning Board has received a letter from Russell and Patricia Colosi that
they do not object to the tower being within 500’ of their residence; and
WHEREAS,
the Town retained an independent radio frequency expert, Dr. William
Johnson, to review the Fix Road Cell Site; and
WHEREAS, the
Zoning Board has reviewed all of the documents and materials regarding the
proposed area variance, including Dr. Johnson’s report and any comments
received from the public, Verizon Wireless and the Erie County Planning
Department, and the Zoning Board has reviewed the Application, site plans and
all other materials submitted in connection therewith.
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11 07/01/10
WHEREAS, the
Zoning Board now wishes to approve the proposed area variance for the Fix Road
Cell Site as set forth below.
NOW
THEREFORE, be it resolved by the Zoning Board that:
1.
The Zoning Board hereby approves Verizon Wireless’ request for an area
variance to locate the tower 442’ +/- from Russell and Patricia Colosi’s
residence.
2.
Verizon Wireless is a public utility, as defined under New York law, and
also is licensed by the FCC to provide wireless telephone telecommunication
services within and around the Town of Grand Island.
3.
Under New York Law, public utilities such as Verizon Wireless, because
they provide essential services and because a public utility transmitting
facility must be located in a particular area in order to provide that service,
is afforded a relaxed standard of review by zoning boards, rather than the
standards generally required for the necessary approvals.
4.
Verizon Wireless has established the need for a telecommunications
facility to provide wireless service to the public for the portion of its
network centered in and around portions of the Town of Grand Island.
5.
Verizon Wireless has demonstrated its limited flexibility with respect to
where it can locate the facility to provide the needed service.
6.
Verizon Wireless has demonstrated that the proposed facility is inert,
that it will not generate noise, odor, vibration or significant traffic.
7.
Verizon Wireless has established, to the satisfaction of the Zoning
Board, that the proposed tower is necessary to allow Verizon Wireless to provide
an adequate level of service from this site.
8.
Dr. Johnson’s report, dated October 20, 2008, confirmed (i) that
Verizon Wireless has a need for coverage in this area; (ii) that the proposed
location remedies the need, (iii) the necessity that Verizon Wireless be located
as close to the western edge of the Town so as to minimize the amount of
cross-border interference into Canada; (iv) that the proposed height is the
minimum height necessary; (v) the lack of any co-location opportunities; and
(vi) that the proposed site will comply with all FCC emissions regulations.
9.
The Fix Road Cell Site is the least intrusive alternative.
10.
The negative declaration of environmental significance issued by the Town
Board is incorporated herein and made a part hereof.
11.
The Zoning Board, in approving the area variance, has reviewed the
criteria for area variances as set forth in Zoning Code § 49-215(B) and makes
the following findings:
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07/01/10
Whether
an undesirable change will be produced in the character of the neighborhood or a
detriment to nearby properties will be created by the granting of the area
variance;
The
granting of the area variance will not cause any undesirable change to the
neighborhood or nearby properties. With
the exception of the Colosi residence, the tower will comply with the 500’
setback requirement for all other residences.
In order to preserve the setback requirements for adjacent homes along
West River Road, the area variance from the Colosi residence is required.
The Colosi’s are the owners of the property where the tower will be
located, and they have submitted a letter stating they do not object to the
location of the tower within 500’ of their home.
Whether
the benefit sought by the applicant can be achieved by some method feasible for
the applicant to pursue, other than an area variance;
There
are no feasible alternatives to the proposed area variance.
The location of the tower is based upon a number of factors, including
the north property line, the residential homes along West River Road, and the
wetland areas that are on the Property. The
granting of this area variance eliminates the need to seek area variances from
additional homes along West River Road, and the location of the tower minimizes
impacts to wetlands.
Whether
the requested area variance is substantial;
The
area variance is not substantial. The
tower will be located 442’ from Russell and Patricia Colosi’s residence,
58’ less than the setback requirement in the Zoning Code. The Colosis’ are the owners of the property where the tower
is to be located, and do not object to its proposed location, and have submitted
a letter in support of the area variance.
Whether
the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district:
The
location of the tower will not have any adverse effects or impact.
The Zoning Board agrees with the Town Board’s determination that the
Fix Road Cell Site will have no significant adverse environmental impacts.
Furthermore, there are no adverse physical impacts.
As shown on Exhibit
L
of Verizon Wireless’ Application,
the fall down radius of the tower is 62.5’.
The
proposed 442’ +/- setback is more than adequate to provide a substantial
buffer between the tower and the Colosi residence.
Moreover, the location of the tower in a heavily forested area will
provide effective screening of the tower from the Colosi residence and
surrounding areas.
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13 07/01/10
Whether
feasible alternatives not requiring a variance are available:
As
explained above, there are no feasible alternatives.
Whether
the requested variance is the minimum variance necessary to afford relief:
The
variance is the minimum variance necessary.
Moving the location of the tower will result in other issues, including
increased wetland disturbance and setback issues regarding the north property
line and other homes along West River Road.
Whether
the alleged difficulty was self-created, which consideration shall be relevant
to the decision of the Zoning Board of Appeals, but shall not necessarily
preclude the granting of the area variance.
The
area variance is not self-created, but is necessary in order to minimize
disturbance to wetlands and comply with the setbacks to other homes.
12.
A copy of this resolution shall be filed with the Town Clerk.
2) 2770 Long Road –
Verizon Wireless – Property is zoned M1. Proposed is a telecommunication facility.
Per Zoning Code Section 49-196C, there should be a 500’ setback for the
fall down area. Item remains tabled per Verizon Wireless’ request.
3)
SBL# 24.10-1-6.2 – Verizon Wireless
The
property is zoned OS – Open Space, is Town owned, and is located next to
Veterans Park. Proposed is a
telecommunication facility. A
variance from Section 49-196 of the Zoning Code has been requested.
The question is whether Section 49-196 permits a Cell Tower in Open Space
zoned areas.
A motion was made by Violanti / Mesmer to GRANT a variance from the provisions of Section 49-196 C of the
Zoning Code for the construction and operation of a wireless telecommunication
facility on Town owned property adjacent to the Town Park, tax map #
24.10-1-6.2.
Roll
Call:
Ayes:
Violanti, Fabiano, Mesmer and McKee
Noes:
None
Carried
Rationale: Approval
of Use Variance:
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14 07/01/10
WHEREAS,
Upstate Cellular Network d/b/a
Verizon Wireless (“Verizon Wireless”) has applied to the Town of Grand
Island (the “Town”) to construct and
operate a wireless
telecommunication facility (“Sand Beach Cell Site”) Road, on property owned
by the Town on Stony Point Road, having tax map number 24.10-1-6.2 (the
“Property”); and
WHEREAS,
the Property is located in the Town’s Open Space District; and
WHEREAS,
the Town of Grand Island Zoning Ordinance (“Zoning Code”) neither
permits nor prohibits telecommunication towers in Open Space Districts; and
WHEREAS,
Verizon Wireless, by application dated March 10, 2010, applied to the Zoning
Board of Appeals (“Zoning Board”) for a use variance and, by application
dated December 22, 2008 applied to the Town Board of the Town of Grand Island
(“Town Board”) for Site Plan approval for the Sandy Beach Cell Site (the
“Application”)’ and
WHEREAS,
the Town Board declared its intent to be Lead Agency in accordance with the
New York State Environmental Quality Review Act (“SEQRA”) for the
Application; and
WHEREAS,
on May 6, 2010, the Zoning Board held a public hearing on the Sandy Beach
Cell Site and representatives of Verizon Wireless and the public were afforded
the opportunity to speak regarding proposed use variance; and
WHEREAS, on June 21, 2010, the
Town Board, as SEQRA Lead Agency determined that the Sandy Beach Cell Site would
not result in any significant adverse environmental impacts and issued a
negative declaration of environmental significance for purposes of SEQRA; and
WHEREAS,
the Zoning Board is fully familiar with the proposed location, surrounding
parcels, and the larger neighborhood regarding the Sandy Beach Cell Site; and
WHEREAS,
the Town retained an independent radio frequency expert, Dr. William
Johnson, to review the Sandy Beach Cell Site; and
WHEREAS,
the Zoning Board has reviewed all of the documents and materials regarding
the proposed use variance, including Dr. Johnson’s report
and any comments received
from the public and Verizon Wireless, and the Zoning Board has reviewed the
Application, site plans and all other materials submitted in connection
therewith.
WHEREAS,
the Zoning Board now wishes to approve the proposed use variance for the
Sandy Beach Cell Site as set forth below.
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15 07/01/10
NOW, THEREFORE, be
it resolved by the Zoning Board that:
1.
The Zoning Board hereby approves Verizon Wireless’ request for a use
variance to locate the tower in an Open Space District as shown on the site
plan.
2.
Verizon Wireless is a public utility, as defined under New York law, and
also is licensed by the FCC to provide wireless telephone telecommunication
services within and around the Town of Grand Island.
3.
Under New York Law, public utilities such as Verizon Wireless, because
they provide essential services and because a public utility transmitting
facility must be located in a particular area in order to provide that service,
is afforded a relaxed standard of review by zoning boards, rather than the
standards generally required for the necessary approvals.
4.
Verizon Wireless has established the need for a telecommunications
facility to provide wireless service to the public for the portion of its
network centered in and around portions of the Town of Grand Island.
5.
Verizon Wireless has demonstrated its limited flexibility with respect to
where it can locate the facility to provide the needed service.
6.
Verizon Wireless has demonstrated that the proposed facility is inert,
that it will not generate noise, odor, vibration or significant traffic.
7.
Verizon Wireless has established, to the satisfaction of the Zoning
Board, that the proposed tower is necessary to allow Verizon Wireless to provide
an adequate level of service from this site.
8.
Dr. Johnson’s report dated March 26, 2010, confirmed (i) that Verizon
Wireless has a need for coverage in this area; (ii) that the proposed location
remedies the need; (iii) that the proposed height is the minimum height
necessary; (iv) the lack of any co-location opportunities; and (v) that the
proposed site will comply with all FCC emissions regulations.
9.
The negative declaration of environmental significance issued by the Town
Board is incorporated herein and made a part hereof.
10.
The proposed bell tower is an appropriate aesthetic design, and will
serve to complement Veterans Park. Verizon
Wireless has proposed to construct a bell tower that will have panels to hide
the antennas from view. Additionally,
Verizon Wireless agrees to provide Veterans themed and
Town
oriented designs on the panels. These
designs will not only shield the antennas from view, but will help to tie in the
tower to Veterans Park.
11.
The Sandy Beach Cell Site is the least intrusive alternative.
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16 07/01/10
12.
A copy of this Resolution shall be filed with the Town Clerk.
2878
East River Road – David Bruno
Mr.
Bruno appeared before the Board and requested a 6 month extension on his 42’
side yard setback variance from Section 49-27A of the Zoning Code; and a 4’
6” height variance from Section 49-27C of the Zoning Code to construct a
stairway, deck, and pergola as was approved on January 7, 2010. He is still waiting for all of the permits.
A motion
made by Violanti / Mesmer to GRANT A
6 MONTH EXTENSION to the previously granted variance for the construction of
a stairway and dock on the riverside portion of 2878 East River Road. The
extension will expire on: January 7, 2011.
Roll
Call:
Ayes: Fabiano, Violanti,
Mesmer, and McKee
Noes:
None
Carried
MINUTES:
A motion
made by Mesmer / Violanti to ACCEPT
the June 3, 2010 minutes as written.
Roll
Call:
Ayes: Fabiano, Violanti,
Mesmer, and McKee
Noes:
None
Carried
OTHER
MINUTES RECEIVED AND FILED:
Board
of Architectural Review Minutes, April 20, 2010
Planning
Board Agenda, June 14, 2010
Planning
Board Minutes,
Town
Board Agenda,
Town
Board Minutes, June 7, 2010
A motion
made by Mesmer / Harris to ADJOURN
the meeting at 7:25 p.m. the
Roll
Call:
Ayes: Fabiano, Violanti,
Mesmer, and Phillips
Noes:
None
Carried
Adjournment 10:15 p.m. on July 1, 2010