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TOWN OF STERLING ZONING BOARD OF APPEALS MEETING TOWN OF STERLING ZONING BOARD OF APPEALS MEETING February 25, 2015 February 25, 2015 A meeting of the Town of Sterling Zoning Board of Appeals was held on Wednesday February 25, 2015 at the Sterling Town Hall at 7:00 pm with the following members present: Darrell Uetz ~ Acting Chairman Richard Palmieri ~ Member Charles Itzin ~ Member Excused: Chairman Larry Lemon and Member Brad Dates. Also present: Mark and Mary Myers, Dick Femquist, David Decker, Attorney Robert Brenner of Nixon & Peabody representing Verizon, Buster and Ann Braley, Monique Dickerson and Joan Kelley. The meeting was called to order at 7:00 PM by Acting Chairman Darrell Uetz. PUBLIC HEARINGS Mark Myers Acting Chairman Uetz read the legal notice into the minutes and the Public Hearing was opened at 7:02 PM. Notice is hereby given that the Zoning Board of Appeals of the Town of Sterling will hold a Public Hearing on Wednesday February 25, 2015 at 7:00 p.m. at the Sterling Town Hall, 1290 State Route 104A, Sterling, NY 13156 to hear a Use Variance request by Mark Meyers. A request for relief of Town of Sterling Land Use Regulations Article XIV, Section 4; to continue non-conforming use status for property located at 809 State Route 104A, Sterling, NY 13156; Tax Map #9.00-1-29. 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 Mark Myers had provided a written narrative with his application that explained his request to the Board members, which he briefly covered for the audience members present. He stated that he had recently purchased the property in January and planned to open for business in April after completing a few minor renovations.. He knew he needed a Special Permit and filed an application in February with the Planning Board, where it was discovered that the business had been closed for more than three years. After a two year period of abandonment the property had lost its non- conforming status and would now need to adhere to the current zoning requirements. Mr. Myers stated that the property had been used as a restaurant for nearly 40 years and couldn’t be readily used for anything else as it currently exists. The property is small, but the existing building placement and square footage is sufficient for a family restaurant with adequate parking and an existing ingress/egress area. The septic system is private with a tank and leach area which recently passed Cayuga County Health inspection; the water supply is public. Mr. Myers commented that he grew up in the area and the restaurant had always been part of the community and he hoped to again promote that sense of community by sponsoring community events and being open all year around for the local residents. The restaurant would also compliment the growing tourism industry of both Fair Haven and Sterling. Various audience members voiced approval for the restaurant such as Dick Femquist and Monique Dickerson, who also felt that the property should be rezoned to commercial. Resident Joan Kelley was also in favor of granting the needed variance and felt that due to hardship the ZBA had the authority to grant it. Without any further comments from the public, Acting Chairman Uetz closed the Hearing at 7:13 PM. Acting Chairman Uetz commented on the report from CC Health approving the existing septic system which could have been problematic after being unused for 3 years. Member Palmieri questioned what variance the applicant was asking for – whether it was an area variance to bring the size into conformity to obtain Special Permit approval or a use variance to extend the non- conforming status and conduct business as is after securing a Special Permit from the Planning Board. Member Itzin agreed that the restaurant would enhance both Fair Haven and Sterling communities. He also didn’t see any other use for the property, and if sold a residence wouldn’t be allowed on such a small parcel, because of this he felt it would create a hardship for Mr. Myers. Without any further comments a motion was moved by Member Palmieri to approve the requested Use Variance to utilize the existing facility as a restaurant, conditional to completing the Special Permit process which would be non-transferable if sold. The motion was seconded by Member Itzin, all were in favor and the motion carried. Resolution 2015-01 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 requested Use Variance to operate a restaurant on property located at 809 Old State Road, Sterling, NY 13156; Tax map # 9.00-1-29 is hereby APPROVED with conditions as follows: 1. Obtain Special Permit approval from Planning Board; and, 2. Non-transferable Special Permit if property is sold. A roll call vote was taken: Darrell Uetz, Acting Chairman Aye Richard Palmieri, Member Aye Charles Itzin, Member Aye 3 AYES 0 NAYS 0 ABSTENTIONS – REQUEST APPROVED Verizon Wireless, represented by Attorney Robert Brenner of Nixon & Peabody ---PAGE BREAK--- Acting Chairman Uetz read the legal notice into the minutes and the Public Hearing was opened at 7:16 PM. Notice is hereby given that the Zoning Board of Appeals of the Town of Sterling will hold a Public Hearing on Wednesday February 25, 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 Verizon Wireless. A request for relief of Town of Sterling Land Use Regulations Article X, Section 5.G, Subsection 3.a and b; to construct a 149’ wireless communications tower on a 100’x100’ leased area from property owned by Brian Randall and located at 15679 State Route 104, Martville, NY 13111; Tax Map #16.00-1-58.117; and from property owned by Buster Braley and located at 14469 State Route 104, Red Creek, NY 13143; Tax Map #19.00-1-16. 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 Attorney Robert Brenner presented the project details of the two Verizon wireless telecommunications towers proposed for sites in Martville and in Red Creek. He explained the propogation study process that determines the best location to provide service coverage that would honeycomb with the three existing towers and give substantial service to areas where there is none. The hope is to continue building towers to the south that would further extend coverage for many areas in Cayuga County. The topography of this area is problematic to obtaining cell service coverage and it also limits the number of available sites for proposed tower locations. The overall tower height of 149’complies with the Sterling regulations but the size of the leased area to contain the tower was deemed too small and is the reason for the area variance request. Mr. Brenner explained that it is common in the industry to size leased areas of only 100’x100’ because it easily contains the tower, the maintenance building, security fencing with roadway and turnaround – larger spaces are not needed and the Sterling code would require substantially more property in order to comply. He further stated that the landowners typically want to lease as small an area as possible, and that if more property is available around the tower that is not being used it potentially could and would be developed. Mr. Brenner also stated that most municipalities have a clause in the zoning laws to waive the conditions for public utilities that service the public good and that Sterling is one of the only Towns he has come across without one. The Planning Board indicated that the intent of the regulation was to keep a failure or fall of a tower off of adjacent properties that could experience considerable damage. Mr. Brenner stated that the parent parcel extends much further away from the leased area than the 149’ needed to contain the tower and that this land wouldn’t be developed unless approved by the Planning Board who would have knowledge of the towers location. For these reasons he feels that an area variance should be granted for both towers. Acting Chairman Uetz questioned the terms of the lease – the length of time and the insurance liabilities in particular. The supplied application documents, containing the signed leases, were reviewed and found to have 5 year terms with renewal options, and insurances for property damage that appeared to be acceptable. Member Itzin asked if Verizon has ever had to purchase larger properties and was told no because provisions to waive regulations for public service projects are usually included in Town zoning laws. Mr. Brenner stated again that the parent parcel has more than 300’ to the adjacent property lines which provides ample space for a tower failure and the same property could not be developed unless approved by the Planning Board. The Hearing was opened for public comments at this time. Dave Decker, pastor of the Martville Assembly of God church, asked several questions of the proposed roadway to access the tower because the church owns and is developing the property to the east. The access drive off of State Route 104 for the tower is close to the property line of the church and since the property is flat and generally wet there he wants proper drainage techniques employed so as not to worsen the condition – the engineered plans show culverts and ditching to contain and channel any run-off water. The attorney added that they were using the existing driveway which had a couple of benefits - the amount of disturbed soil would be less because of less development efforts and there would be no disruption to the roadway or traffic by not adding another curb cut along State Route 104. Dave Decker stated that he couldn’t foresee any adverse effects the project would have on the church property since the access drive for the tower would be the rear corner of the church’s development with ingress/egress off of Wilde Road. Without any further comments from the public, Acting Chairman Uetz closed the Hearing at 7:58 PM. The members continued to discuss the merits of the request amongst themselves. Member Itzin stated that he would like to see more land leased to comply with the dimensional requirements, the fact that it is common practice for Verizon to build towers in 100’ square areas isn’t reason enough to grant a variance. Additional land is available and the cost to obtain more property is small in comparison to what has already been spent on the engineering and design of the towers. Member Palmieri stated that he didn’t feel the project fulfilled the intent of Sterling’s Law in regards to the requirement that the ‘property lines of leased property become the lines of the area leased, not the total area of the owner’s property’, in fact the request purports the exact opposite. All of the Members agreed that compliance with the law would be easy since the property is available and the incompatibility is self-created. Mr. Brenner asked if a conditional approval would be considered for a tower design that would include a fracture critical area to guarantee collapse within the proposed area if the tower were to ever fail, which is highly unlikely because of the design standards implemented for wind and ice. A motion was moved by Member Palmieri to approve the area variance request to allow a 100’x100’ area to construct a 149’ wireless communication tower for both parcels described as the Martville Site and as the Red Creek Site. The motion was seconded by Member Itzin, none were in favor and the motion carried. Resolution 2015-02 ---PAGE BREAK--- 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 requested Area Variance to construct a 149’ wireless communication tower within a 100’x100’ leased area on property located at 15679 State Route 104, Martville, NY 13111; tax map # 16.00-1-58.11; and owned by Brian Randall; is hereby DENIED. A roll call vote was taken: Darrell Uetz, Acting Chairman Nay Richard Palmieri, Member Nay Charles Itzin, Member Nay 0 AYES 3 NAYS 0 ABSTENTIONS – REQUEST DENIED Resolution 2015-03 BE IT RESOLVED, by the Zoning Board of Appeals for the Town of Sterling, upon the facts presented and the determination made, that the application for requested Area Variance to construct a 149’ wireless communication tower within a 100’x100’ leased area on property located at 14469 State Route 104, Red Creek, NY 13143; tax map #19.00-1-16; and owned by Buster Braley; is hereby DENIED. A roll call vote was taken: Darrell Uetz, Acting Chairman Nay Richard Palmieri, Member Nay Charles Itzin, Member Nay 0 AYES 3 NAYS 0 ABSTENTIONS – REQUEST DENIED MINUTES Approval of the meeting minutes for October 16, 2014 waived until the next meeting because two of the three Members were absent from the October meeting. ADJOURN On a motion by Member Palmieri and seconded by Member Itzin, the meeting was adjourned at 8:05 PM. Approved Minutes, Respectfully submitted, Lisa Somers, ZBA Clerk