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TOWN OF STERLING ZONING BOARD OF APPEALS February 22, 2018 A meeting of the Town of Sterling Zoning Board of Appeals was held on Thursday, February 22, 2018 at the Sterling Town Hall with the following members present: Richard Palmieri ~ Acting Chairman Darrell Uetz - Member Charles Itzin ~ Member Excused: Members Laurence Lemon and Brad Datesz Also Present : Attorney Norman Chirco, Town Attorney Kevin Cox, Jim and Kay Hanlon, Sterling CEO Jay Moose and Virginia Fichera. The meeting was called to order at 7:00 PM by Acting Chairman Palmieri. PUBLIC HEARING Acting Chairman Palmieri stated that the ZBA had tabled a Hearing for these requests on 4/17/2017 in order to allow the applicant to address issues with the property before proceeding to a determination. He read aloud the legal notice and opened the Hearing at 7:01 PM. Notice is hereby given that the Zoning Board of Appeals for the Town of Sterling will hold a Public Hearing on Thursday, February 22, 2018 at 7:00 PM at the Sterling Town Hall, 1290 State Route 104A, Sterling, NY 13156 to hear an Area Variance request by Erie Enterprises LLC for the Pit Stop Convenience Store. A request for relief of the Town of Sterling Land Use Regulations Article VII, Section 1, Table 1 and Section 2 –Front setback requirement for corner lots in regards to aboveground petroleum storage tanks and the canopy area on property located at 15057 State Route 104, Sterling, NY 13156; Tax Map #20.00-1-57.1. All those wishing to be heard in favor of or in opposition of said application may appear in person or by other representation at said time and place. By order of the Zoning Board of Appeals Lisa Somers, Clerk Acting Chairman Palmieri asked the applicant to present his request. Attorney Norman Chirco, representing Case Marshall of Erie Enterprises LLC, read aloud a letter from Case Marshall dated 12/27/2017. The letter explained the process taken by the applicants when the underground tank failed, the decision to replace with above ground storage tanks, and the additional property purchase. The new location for the tanks was chosen as an ‘in concert’ decision with the DEC, DOT and Town CEO in an effort to provide easy access and adequate clearance for the tankers to fill the storage tanks, and to provide additional safety to the environment and traveling public on State Routes 38 and 104. Acting Chairman Palmieri questioned what involvement the DOT had. Attorney Chirco replied that the DOT had suggested placing the tanks closer to Route 38 because of the higher traffic loads that exist on Route 104. Traffic is also traveling at a higher speed on Route 104, unlike Route 38 which has a stop sign at the intersection. Chris Culver, of the DOT, had also suggested using refurbished tanks that were located nearby in Fulton. Member Itzin asked why the Town process hadn’t been followed initially; Attorney Chirco answered that it had been an oversight because the CEO had been involved with the project at the time. Acting Chairman Palmieri stated that the CEO Applebee should have indicated that a variance was needed. The Town Attorney, Kevin Cox, addressed current CEO Jay Moose as to the status of the outstanding permits concerning this project; he replied that he would still need to inspect the property for compliance. Members Uetz and Itzin both stated that they’ve driven through the intersection a few times recently and commented that the tanks current position allows for more sight distance than the previous house and shrubbery did, and that the applicant’s changes improved the dangerous intersection. They also stated that when traveling west on 104, the tanks are set high on the berm and can be seen from a distance, possibly drawing attention to the area and the intersection in particular. Without any further comments from the Board, Acting Chairman Palmieri opened the Public Hearing to comments as follows: 1. Kay & James Hanlon – Kay. Hanlon commented that the neighborhood enjoys the convenience of the Pit Stop and stated that it was obvious that there are no objections to the proposal because no one is present to complain. The owner did a wonderful job on the renovations and the appearance is clean, modern and in general improves the whole area. Mr. Hanlon stated that his well is 100’ from the underground location and contamination of his drinking water could have occurred; he approves of the new location and the above ---PAGE BREAK--- ground tank containment system gives peace of mind for the safety of his and his neighbor’s drinking water. He also stated that very few accidents occur at the intersection, but those that do are from people on Route 38 that do not stop for the stop sign. 2. Virginia Fichera – Ms. Fichera stated that no one wants to lose the gas station but that the safest placement and design needs to be determined. She questioned whether the tank placement was compliant with LUR Article 8-5(C)(1)Traffic Visibility Across Corners (clear sight triangle). The tanks are well above the two feet allowance described in the regulation and argued that this is the opportunity to make situations within the Town better. After some discussion by the Board members, Ms. Fichera stated that it appeared that the Town is again ready to rubberstamp approvals for businesses and dismisses regulations that seem to be problematic. Acting Chairman Palmieri disagreed with her, instead explaining that the 50’ triangle created per the regulations doesn’t apply because it would be located within the road way due to the skewed design of the intersection. The Board members, Town Attorney and CEO reviewed the LUR Article 8-5(C)(1) for clear sight triangles and determined that because of the oblique triangle created by the intersection, the resultant clear sight triangle is confined to the ROW area and doesn’t involve the applicants property at all. Discussion did ensue amongst the members regarding the lawn area at the south corner that extends approximately 100’ north towards the tanks. Member Uetz commented that a neighbor (Mr. Dates) had said at the last Hearing in April, that at least one accident a year involves a vehicle driving onto the grassy berm. An earthen embankment was discussed as a possible condition for variance approval but decided it was probably more appropriate for the Planning Board to resolve during site plan review. All of the members agreed that there are less vision problems now when travelling through the intersection and that the improvements made to the entire site have increased the overall safety of the area. Without any further public comments the Hearing was closed at 7:40 pm on a motion moved by Acting Chairman Palmieri and seconded by Member Itzin, all were in favor and the motion carried. Before deliberating the merits of the request it was decided to treat the two tanks as a single structure and to decide the gas canopy request as a separate variance. Member Palmieri read aloud the 5 criteria that area variances are decided upon as is required by LUR Article 4-10(C)(2) for discussion amongst the members in regards to the tank structure: Undesirable change in the neighborhood - No change because the business has been there. Although the tanks are now seen, they are environmentally safer and the entire site redesign has better flow and aesthetic value. Whether benefit sought could be achieved another way – No other viable location because the property is small. Substantial request – Yes. Possible environmental effects – Above ground tanks are favored by the DEC and the above ground containment system is an improvement safeguarding the environment. Self-created – He purchased the only property available to solve a potentially catastrophic problem for both the environment and the business; resultant location deemed to be the least objectionable. The members continued discussion of landscaping to enhance the visual aspect of the tanks, which could be softened with some low growth bushes, or possibly a row of arborvitae. The plantings could be troublesome in enticing deer and other wildlife, and again judged as an issue to be more appropriate for the Planning Board to ascertain. A motion to provide relief of 48’ for front setback to State Route 38 and 28’ relief for front setback to State Route 104 in regards to the above ground storage tanks was moved by acting Chairman Palmieri and seconded by Member Itzin, a vote was taken with unanimous approval and the motion carried. Resolution 2018-02 BE IT RESOLVED, by the Zoning Board of Appeals for the Town of Sterling, upon the facts presented and the determination made, that the requested variance for relief from the 83’ setback requirement for corner lots, in regards to the two above ground storage tanks as located on submitted plan dated 2/15/2018, relief of 48’ from centerline of State Route 38 and relief of 28’ from the centerline of State ---PAGE BREAK--- Route 104 on property located at 15057 State Route 104, Martville, NY 13111; Tax Map # 20.00-1- 57.1 is hereby GRANTED. Roll call vote was taken: Lawrence Lemon, Chairman Absent Richard Palmieri,Acting Chairman Aye Darrell Uetz, Member Aye Charles Itzin, Member Aye Brad Dates, Member Absent 3 AYES 0 NAYES 0 ABSTENTIONS – REQUEST APPROVED The ZBA members reviewed the 5 criteria in relation to the enlarged gas canopy area as follows: Undesirable change in the neighborhood - The canopy existed previously, only change is expansion towards the newly merged property – improving access and room for maneuverability. Whether benefit sought could be achieved another way – No other viable location because the property is small. Substantial request – The members felt that the setback requests were small compared to the size of the property which is further encumbered with double front yard setbacks of 83’ because of the intersection location. Possible environmental effects – Nothing significant. Self-created – No, the business had an established footprint previous to applicants purchase. A motion to provide relief of 16’ for front setback to State Route 38 and 28’ relief for front setback to State Route 104 in regards to the 24’x50’ gas canopy was moved by acting Chairman Palmieri and seconded by Member Uetz, a vote was taken with unanimous approval and the motion carried. Resolution 2018-03 BE IT RESOLVED, by the Zoning Board of Appeals for the Town of Sterling, upon the facts presented and the determination made, that the requested variance for relief from the 83’ setback requirement for corner lots, in regards to the gas canopy area as located on submitted plan dated 2/15/2018, relief of 16’ from centerline of State Route 38 and relief of 28’ from the centerline of State Route 104 on property located at 15057 State Route 104, Martville, NY 13111; Tax Map # 20.00-1-57.1 is hereby GRANTED. Roll call vote was taken: Lawrence Lemon, Chairman Absent Richard Palmieri,Acting Chairman Aye Darrell Uetz, Member Aye Charles Itzin, Member Aye Brad Dates, Member Absent 3 AYES 0 NAYES 0 ABSTENTIONS – REQUEST APPROVED Advisory Statement to Planning Board The members expressed ideas relating to landscaping around the tanks and a barrier to prevent a vehicle from reaching the tanks throughout the meeting but resolved to leave those issues for the Planning Board to determine during site plan review. An earthen embankment, concrete jersey barrier water and sand barrels, guardrails or other low-cost preventative measure should be examined and considered. Therefore, in an effort to assist the site plan review process, and to provide a business that is safe and promotes the general welfare of the community the ZBA makes the following advisory statement to the Planning Board: ‘The ZBA strongly recommends consideration for a barrier to prevent accidental entrance to the property from the west (east bound traffic) on rt 104, and reaching the tanks.’ ADJOURN On a motion by Member Itzin and seconded by Member Uetz, the meeting was adjourned at 8:08 PM. Unapproved Minutes, Respectfully submitted, Lisa Somers, ZBA Clerk