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TOWN OF STERLING ZONING BOARD OF APPEALS MEETING TOWN OF STERLING ZONING BOARD OF APPEALS MEETING September 24, 2015 September 24, 2015 A meeting of the Town of Sterling Zoning Board of Appeals was held on Thursday September 24, 2015 at the Sterling Town Hall at 7:00 pm with the following members present: Laurence Lemon ~ Chairman Richard Palmieri ~ Member Charles Itzin ~ Member Darrell Uetz ~ Member Brad Dates ~ Member Also present: Town Attorney Kevin Cox, Robin Allinger, Jeff Couperus, Della Jastrzab, Christopher Ferlito and his attorney Kimberly Steele, Lynn Lyons, Christine Bassett, James Kush, Delores Welsh, Dale Ritchie, William MacCaull, Mireille Watts, Carolyn Waterman, Jim & Joy Mignogna and Virginia Fichera. Town Councilors: Gus Taft, Steve Keeling and June Smith. Planning Board Members: Sue Allen and Vern Bishop. The meeting was called to order at 7:05 PM by Chairman Larry Lemon. Chairman Lemon addressed the audience regarding the rules of conduct during Public Hearings and asked those wanting to speak to sign in. He asked audience members that were employees to identify them selves and then introduced the ZBA members. He also pointed out that the meeting was being recorded. PUBLIC HEARING William MacCaull Chairman Lemon read the legal notice into the minutes and the Public Hearing was opened at 7:13 PM. Notice is hereby given that the Zoning Board of Appeals of the Town of Sterling will hold a Public Hearing on Thursday September 24, 2015 at 7:00 p.m. at the Sterling Town Hall, 1290 State Route 104A, Sterling, NY 13156 to hear an Area Variance request by William MacCaull. A request for relief of Sterling Land Use Regulations Article VII, Section 1 –Table 1 Minimum front yard setback requirement to build a 24’x24’ garage on property located at 1208 Old State Road, Sterling, NY 13156; Tax Map # 9.00-1-19.11. 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 Planning Board, Lisa Somers, Clerk William MacCaull stated that he would like to build a garage on his property adjacent to his existing driveway and walkway to house, but the area he’s chosen encroaches on the front setback requirement. He explained that the area has always been a parking area and is considerably higher in elevation that the rest of his property. He has been filling and leveling an area with an approximate 11% slope in anticipation of building a 24’x24’ garage. The Town code requires 105’ and his garage would be 60’ from the edge of pavement but is unwilling to place it anywhere else for the following reasons: ~ locating further down hill would require unreasonable amount of added fill and expense. ~ locating further downhill would create difficult snow removal. ~ locating further downhill would create winter access problems. ~ cannot meet 105’ code requirement because of well location. ~ cannot locate further east because of drainage swale off Old State Rd – area is soft and wet. ~ locating northwest of the house would block access to the shop and backyard. ~ locating northwest of the house creates winter access and snow removal problems. Chairman Lemon asked the size of the existing parking area and where the garage placement would be. Mr. MacCaull answered that the parking is about 40’x40’ and the garage would be placed to the east on a newly filled area with the walkway gate separating the two. He was also asked if the garage placement would create visibility issues being so close to the road, to which he said no. Member Uetz had visited the site and didn’t feel that the structure would create sight problems. Member Itzin had also visited the site and asked if more fill was needed and if trees were going to be cut – Mr. MacCAull didn’t think he would need to do more. Member Dates asked about the building height which Mr. MacCaull stated the side walls were 10’ with 5/12 pitched roof therefore no visibility issues. The Board stated that the request was substantial at 45’ which could be an issue because size is a deciding criterion. Mr. MacCaull replied that as you drive through the neighborhood its common to see structures much closer than the 105’ requirement. He concluded that he and his wife are getting older and a garage would make the winters a lot easier for them. The Hearing was opened to the public for comments. Town Councilor June Smith stated that she was a neighbor and had no ---PAGE BREAK--- problems with the location and felt that it wouldn’t create visibility issues for drivers. Without further comments a motion to close the Hearing at 7:25 pm was moved by Chairman Lemon and seconded by Member Dates, all were in favor and the motion carried. A motion was moved by Member Uetz to approve a 50’ variance for front setback to build a 24’x24’ garage as located on the submitted site plan. Chairman Lemon wanted to add a location such as SW corner of garage to be located 2’ NE of existing gated walkway. Member Palmieri read aloud the 5 area variance criteria as prompted by the Town attorney to ensure that all Members felt the request met the merits required. The motion to approve the request was seconded by Member Palmieri, all were in favor without further discussion and the motion carried. Resolution 2015-08 BE IT RESOLVED, by the Zoning Board of Appeals for the Town of Sterling, upon the facts presented and the determination made, that the application for a requested variance of 50’ for front setback to build proposed 24’x24’ garage, per submitted plan locating the SW rear corner of garage approximately 2’ NE of the existing gated walkway, on property located at 1208 Old State Road, Sterling, NY 13156; Tax map # 9.00-1-19.11 is hereby GRANTED upon the following express conditions: none. Roll call vote was taken: Lawrence Lemon, Chairman Aye Richard Palmieri, Member Aye Darrell Uetz, Member Aye Charles Itzin, Member Aye Brad Dates, Member Aye 5 AYES 0 NAYS 0 ABSTENTIONS – REQUEST APPROVED REHEARING Christopher Ferlito Chairman Lemon stated that the ZBA had granted a variance to Mr. Ferlito earlier in the year for relief of setback between the ingress/egress of the mine and the surrounding structures. Since then the Board Members voted and unanimously agreed to readdress the request because of significant changes having been made to the site plan design. The initial design had separate ingress/egress and the current design has a single driveway for both entering and exiting trucks which directly corresponds to the requirement decided upon. Member Dates read the legal notice into the minutes and the Public Hearing was opened at 7:41 PM. Notice is hereby given that the Zoning Board of Appeals of the Town of Sterling will hold a Rehearing on Thursday September 24, 2015 at 7:00 p.m. at the Sterling Town Hall, 1290 State Route 104A, Sterling, NY 13156 to review a Decision granted to Christopher Ferlito of CJ Construction LLC. The Decision granted relief of Sterling Land Use Regulation Article X, Section 5.J Subsection 2.d setback requirement for access roads and existing residences in connection to a proposed sand and gravel mining/excavation operation on property located at 13181 Sanford Road, Martville, NY 13111; Tax Map #20.00-1-68.01. 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 Planning Board, Lisa Somers, Clerk Chairman Lemon asked Chistopher Ferlito to explain the change made to the site plan. Mr. Ferlito replied that during the DEC review for SEQR an issue regarding noise levels when mining in Phase 1 was discovered and he was asked to mitigate the problem. Elimination of the access road to the north reduced the noise levels detected earlier and satisfied the DEC. He further stated that since that time the phasing of mining has changed from the front areas of the Life of Mine to the back areas, he could therefore go back to a two driveway design if the ZBA opts to deny the relief because of the site plan change. Chairman Lemon asked the distance from the proposed single driveway to Pople Road – about ¼ mile. He also asked if all traffic was exiting to the south only – Mr. Ferlito said all traffic was leaving the mine to the south. Member Palmieri commented that the change in site plan directly changed the density of the traffic from two points along the roadway to one. Chairman Lemon added that part of the original justification was the separation of ingress and egress to reduce anticipated noise and congestion, if utilizing only one point would a dangerous situation be created for the residents. He also stated that only the access road and dwellings within 1,000 feet can be considered during the rehearing for setback relief. Chairman Lemon also referred to the NYS DOT letter which recommends traffic studies be performed on the intersections and routes to be utilized by the ---PAGE BREAK--- anticipated trucking traffic. Member Dates read aloud said letter dated 9/9/15 to clarify what studies were discussed for those in the audience unfamiliar with the letter. The members discussed the gap analysis study which Attorney Kimberly Steele stated was not related to this request because the letter does not mention the access road intersection with Sanford Road only Routes 38 and 104. Discussion ensued amongst the Board members regarding the decibel noise level testing that the DEC conducted that precipitated the site plan change, whereas they commenced a review of the DEC comments and responses. Town Attorney Kevin Cox directed the Board to look back at what was first presented at the 4/27/15 meeting and determine how it has changed; and then decide if that changes anything. Member Palmieri read aloud the ZBA minutes from the initial variance request on 4/27/15 for the benefit of the audience and the Board members. The original mine access is the same as the current design – the second driveway was added because of the hill on Sanford Road in an effort to ease traffic flow. At this time the Rehearing was opened to public comments with a time limit of 3 minutes per person. A request for residents not to repeat each other and instead state their agreement to previous statements would be appreciated. Jeff Couperus - Neighbor that lives 600’ south of the mine entrance. He stated that he was at the 4/27/15/meeting and had felt like his concerns had been completely disregarded by the ZBA. He quickly read a letter that he had prepared and supplied to ZBA and Planning Board members that expressed concern for the safety of people living and driving in the area. Issues of line of sight with mine access road and several area driveways, traffic congestion, noise and dust issues for children with allergies top his list of concerns. He concluded by stating that the project Mr. Ferlito is proposing is a newer and larger operation than what has always been there, it’s industrial and doesn’t belong in the existing residential neighborhood. He urged the ZBA to uphold the Town’s zoning requirements. Supplied 5 page letter to Board for project file. Robin Allinger – A resident across the road from the mine. Presented photos and could play video showing traffic scenarios which were previously emailed to both Planning and ZBA Board members. A list of her issues was no sight distance for driveways, road width not adequate, school bus safety, increased congestion of traffic because of narrow road and large vehicles. Time limit expired and Ms. Allinger presented copy of her concerns to Board – 6 large photo pages and 3 page document regarding line of sight. Mirielle Watts – Stated that she agreed with comments of Jeff Couperus. Asked if her remaining time could be used by Ms. Allinger to finish reading her letter. Also stated that she owns property next to the project site and if Special Permit is approved then she wouldn’t be building on the lot. Christine Bassett – Has lived with the Granby mine for several years and has experienced the process where complaints by residents are ignored and to date have never been addressed. Firmly believes that there is no enforcement by the DEC of violations committed by the mine owners. Supplied a letter with photos dated 9/24/15 – Impact on Granby resident from Cty Rt 85 mine. James Kush – Asked if any of the Board Members lived in the neighborhood of the mine. Stated that he feels bad for the residents because there’s no way of limiting the number of trucks, it could easily be one a minute all day long. Jim Mignogna – Resident on Pople Road. Stated opposition to project and wanted to know how the traffic from a Sterling project gets redirected into the Town of Victory. Della Jastrzab – Resident of Victory within a mile of the mine. Stated that property values decline substantially within 5 miles of the mine. A mining operation doesn’t provide jobs for the community – existing employees are displaced from other areas. Trucks utilizing the mine don’t follow designated routes, and 10 trucks is really 20 because its coming and going. The noise created is a calamitous racquet that drones on and on and on. Concluded that it doesn’t seem morally correct for so many to pay so much for a few to benefit. Supplied collection of papers to Larry Flint dated 3/5/15 regarding local economic impact of mines. Lori Welsh – A neighboring property who agrees with Jeff Couperus’s comments. Suggested that the ZBA come and see how close everything is to really understand the potential impact. If this permit is approved what options do the residents have? Move? This type of activity ruins the peace and quiet that everyone moved here for. ---PAGE BREAK--- Steve Keeling – Stated that he had recently driven a tractor trailer through the neighborhood along all routes designated, past school buses and other vehicles of different sizes and experienced no delays, problems or issues with passing width of vehicles or maneuvering intersections. He also asked the school district if the buses have had any issues or concerns with the width of Sanford Road and maneuverability past other traffic and through intersections – they’ve experienced no problems. He stated that he remembers a few years back when RG&E wanted to build in our area and the same complaints were expressed by the residents, the result of that was RG&E went elsewhere and took all the jobs with them. 10.) Larry Flint – Stated that the width of Sanford Road does not meet State and Federal specifications of 22’ width. He also discussed the sight distance problems because of the topography of the area which is compounded with the absence of shoulders and 6”drop from blacktop pavement. 11.) Virginia Fichera – Agrees with everyone’s comments and thinks that the problematic issues of the mine outweigh any benefit it could yield for anybody other than the owner. Stated that the DEC role is limited in that it only studies the noise created by the location of the driveway and that they don’t decide its location. She also wanted the ZBA to realize that the access road located throughout the Life of Mine is also to be considered as part of this variance. The rehearing essentially means that the first variance granted is no longer valid and that tonight’s decision could resolve many of the issues and concerns of the residents. Any variance granted lasts forever with the property. Supplied Future Land Use Concept map and narrative – Areas of Future Growth from the LUR. 12.) James Kush – Spoke a second time to explain a safety issue that many may be unaware of. It’s common for rocks to get lodged in the wheels of hauling trucks while driving through the mine roads, which causes the truck to jerk and hop until the lodged stones are displaced. The jerking and hopping action can hurl 8 and 10 pound stones from the truck bed which lands in the road, on passing vehicles and into resident yards. The action is unpredictable and potentially dangerous. 13.) Lynn Lyons – Resident near Cty Rt 85 mine in Granby. The checks and balances that Towns establish with these operations are not upheld by the municipalities or the DEC and the residents pay the price. 14.) Virginia Fichera – Would like to remind the ZBA that the Town passed new ordinances in June of 2014 and that the previous setback of 500’ was changed to 1,000’ – a substantial change – for a reason, to protect the welfare of the residents. She urged the Board to review and consider the history of the legislation. Without further comments a motion to close the Hearing at 9:30 pm was made by Member Itzin and seconded by Member Uetz, all were in favor and the motion carried. Chairman Lemon stated that the Board members would consider all the comments heard but that a majority of what had been said didn’t really pertain to the action in front of the ZBA and was more suited to affect the Planning Board process. The Town attorney, Kevin Cox, advised the ZBA that the only issue to decide in this rehearing is the relief of Sterling Land Use Regulation Article X, Section 5.J Subsection 2.d and that a unanimous vote is required to change the previous decision. The options for this meeting is to either vote or table the decision until a future date to be announced at the conclusion of this meeting. Member Itzin didn’t think that tabling the decision would change anything and that a postponement would hurt the applicant and the residents. Member Palmieri stated that maybe a listing of conditions could be developed that would control the operation and respond to the concerns of the neighborhood. Conditions such as staggering the trucks entering and leaving to eliminate congestion issues, adjust the speed limit of the immediate area and designate a truck route; all of which can be monitored by the CEO and cause disruption of mine activities if not followed. He referred to Town Law 267b which allows conditions to be attached. Member Dates stated that the point in front of us is the access road only which doesn’t and can’t comply, in fact he doubts that any property would be able to comply with these setback restrictions and is essentially why Mr. Ferlito is seeking relief. Member Palmieri commented that the rehearing hasn’t presented any changes of impact from a double driveway to a single; in ---PAGE BREAK--- fact eliminating the north access has decreased the overall number of structures affected. Chairman Lemon suggested a possible solution would be an amendment of the original variance to specify a single driveway access. Member Palmieri questioned the issues with Sanford Road, such as it being narrow, no shoulders with deep ditches, recent repaving but is the road built to structurally handle the expected loads. Chairman Lemon and Member Itzin stated that although credible concerns they didn’t relate to the access road proximity to structures and would be better addressed by the Planning Board. Member Dates commented that if the ZBA approved the variance for relief then the Planning Board would have the responsibility and authority to address the numerous issues discussed tonight. Essentially the ZBA has to decide how concerns relate to the closeness of structures to the access road and would the concerns be lifted or change if access were placed more than 1,000’ away. Member Palmieri read aloud the 5 criteria for consideration when reviewing variance requests and asked the Board members to comment in regards to a single driveway scenario and whether that creates a change from the original discussion. Criteria #1 Can benefit sought be achieved in another way? No, applicant has no other access to property. Criteria #2 Is it an undesirable change? Same perception whether it’s one or two access points. Criteria #3 Is it substantial? Member Palmieri stated it is substantial to 3 parcels. Criteria #4 Adverse effect on environment. The DEC was designated as Lead Agency for the SEQR review and their documentation shows no adverse effects. Criteria #5 Self-created hardship? Probably is but that hasn’t changed either from 4/27/15 meeting discussion. Each of the Board Members stated their thoughts as follows: ~ Member Charles Itzin stated that the change from two entrances to one entrance didn’t change anything from the original approval. He also felt that conditions would be meaningless without enforcement and that traffic controls were out of the ZBA’s prevue. ~ Member Rich Palmieri also didn’t see any changes from the first approval by simply changing the number of access points. He did state that having one truck at a time enter or leave could alleviate some of the neighbors issues. A majority of the opinions voiced from the audience can be evaluated by the Planning Board process. ~ Member Brad Dates commented that they had granted the relief before and one driveway doesn’t change anything. He also felt that many good and valid points had been made by the residents and that many entities have a say in the review of the project which hopefully cross checks each other to eliminate any adverse impacts. ~ Member Darrell Uetz said that he preferred the single entrance design because it’s safer with only one point to disrupt the normal flow of traffic. ~ Chairman Larry Lemon stated that he felt a single driveway was a better solution than two; the question is where it should be located. It was approved once and nothing changes by eliminating a driveway. A motion was moved By Member Palmieri to amend the original variance to allow truck ingress/egress by a single driveway as located on site plan without conditions. The motion was seconded by Member Itzin, all were in favor without further discussion and the motion carried. Resolution 2015-09 BE IT RESOLVED, by the Zoning Board of Appeals for the Town of Sterling, upon the facts presented and the determination made, that the original variance approval granting relief of setback requirement between access roads and existing residences be amended and modified to allow trucks to enter and exit the proposed gravel mine from a single access road/driveway as is located on submitted site plan dated July 15, 2015, on property located at 13181 Sanford Road, Martville, NY 13111; Tax Map #20.00-1-68.01 is hereby GRANTED upon the following express conditions: None. A roll call vote was taken: Laurence Lemon, Chairman Aye Darrell Uetz, Member Aye Richard Palmieri, Member Aye Charles Itzin, Member Aye Brad Dates, Member Aye 5 AYES 0 NAYS 0 ABSTENTIONS – REQUEST APPROVED MINUTES ---PAGE BREAK--- Motion to approve meeting minutes for August 17, 2015 was moved by Member Itzin and seconded by Member Dates, Member Palmieri abstained from the vote while the remaining 4 members were in favor with no discussion, motion carried. ADJOURN On a motion by Member Palmieri and seconded by Chairman Lemon, the meeting was adjourned at 10:23 PM. Unapproved Minutes, Respectfully submitted, Lisa Somers, ZBA Clerk