APPEALS
BOARD MINUTES
April 10, 2002
THE
TOWN OF MACEDON ZONING BOARD OF APPEALS MEETING WAS HELD ON WEDNESDAY, APRIL
10, 2002 AT THE TOWN COMPLEX, 1675 N WAYNEPORT RD, MACEDON, NEW YORK. PRESENT WERE, CHAIRMAN WARREN JEFFRIES,
MEMBERS, SUE BUSH, JOHN GRAVINO AND CHARLIE PACKARD. ALSO PRESENT WAS ZONING OFFICER / TOWN ENGINEER, SCOTT ALLEN AND
TOWN COUNCILMAN, DAVID MAUL. ABSENT WAS
MEMBER HELEN SAVERSKY.
Mr.
Jeffries called the meeting to order at 7:32 p.m. Mr. Jeffries explained the purpose for which this board serves
and read the legal notice as it appeared in the “Times”.
PUBLIC
HEARING:
Johns
Schweiger / 3169 Mill Road / Area Variance - Section 135-61-B-5 and 135-61-B-4
/ Request to build an accessory structure in the front yard area and taller
than code allows
Mr. Schweiger was
present to speak in favor of the granting of this variance. Andy Stoneberg of Secor Lumber was also
present to address the board as the builder.
Mr. Stoneberg explained that the proposed construction location is due
to a bank that drops to a nearby creek.
Mr. Stoneberg also explained that there are trees and a deck in the back
of the house and the septic system and leach field is located on the other side
of the house. Mr. Stoneberg stated that
Mr. Schweiger has applied for a similar variance recently and was denied and
they tried to meet the recommendations from the last hearing on this
application. The proposed construction
is moved back further and the height has been reduced. Scott explained that the three variances
being reviewed are for the building to be in front of the primary structure,
the height and the front setback. Mr.
Stoneberg explained that the proposed construction would not exceed the height
of the primary structure. The
measurements provided on the map were questioned. Mr. Stoneberg explained that the measurements shown are ones he
measured from the edge of the pavement and the centerline of the road. Mr. Stoneberg also explained that the
original map is not the way the house was built. Warren Jeffries passed around pictures of the property. It was determined that the drawing was not
to scale and the measurements were still in question. Dave Maul asked was the distance to the creek would be. Mr. Stoneberg replied that the creek would be
66' away, however, the bank is close to the back of the proposed
structure. The proposed building is to
be built to match the existing residence.
Charles Packard noted that for future variances the applicant should
know ahead of time where to measure from to avoid this confusion. No one else was present to speak for or
against the granting of this variance.
-Planning Board gave a negative
recommendation due to the inaccuracy of the map
-Town Board giving the constraints of the lot gives a positive recommendation,
however, recommends that during the building permit process the measurements
are verified.
-SEQR not required
-Wayne County Planning Board
referral is not required for this application.
Brownstone
Physical Therapy / 1900 Route 31 (West Wayne Plaza) / Area Variance - Section
135-191-C-1
No one was present
to represent this application. Warren
stated that the public hearing was scheduled and advertised so they would move
forward. Scott presented pictures and stated
that the color and style would match the existing signs at the plaza. No one else was present to speak against
this application.
-Planning Board has not had a
meeting to review this application.
-Town Board has no objections to
this application.
-SEQR not required
-Wayne County Planning Board has not
had a meeting to review this application.
David
Morrison / 846 Macedon Center Rd (Alpco) / Request for an interpretation of
Town Code Section 135-187 in relation to the issuing of a Special Use Permit
for the operation at the above location
David Morrison of
1255 Farmington Road was present to address the board. David explained that his appeal was actually
for two issues, the first being the issuance of a permit for operation at
Alpco, the second is to clarify the definitions relating to the SRSCP zoning
code. David read the letter submitted
with his application, see attachment A.
David stated that the Town Board and Planning Board have used corrupt
policy to implement selective, personal, political powers and continued by telling
the board that when he was a Town Board member he participated. After listing the definitions, Mr. Morrison
presented a criminal docket from 1969 for Alton Plumb for violation of the
junkyard ordinance, see attachment B.
Mr. Morrison continued by presented planning board minutes dated October
14, 1991, see attachment C. David
explained in response to these minutes that there was never anything done, he
has asked on several occasions for a letter from the Town Attorney concerning
this issue. David then presented
Planning Board minutes dated April 12, 1993, see attachment D, and explained
that due to this modification caused violations. David also contested that the re-zoning of the front 450' also
added to these violations because a SRSPC operation is only allowed in ORM or
AR-40. David also stated that the board
chose to ignore the operations at the house.
David then presented a court case of the People of the State of New York
vs. David Morrison and read section 135-48, see attachment E, stating that this
section would apply to Macedon Ford, all the storage buildings and any
garage. He then read section 135-187(b)
and 135-187(k). David then presented a
Notice of Petition in the Matter of David Morrison vs. the Zoning Board of
Appeals of the Town of Macedon, see attachment F. David read the Zoning Board of Appeals minutes attached to this
file dated July 13, 1999. David then
referred to sections 135-9(C) and stated that Alpco doesn't comply with this
chapter, along with several other businesses within the Town of Macedon. David continued by reading section 135-9 and
stated that the Zoning Office has not maintained the records required. David presented a Supreme Court Case, Index
No. 46358, In the Matter of David Morrison vs. the Zoning Board of Appeals of
the Town of Macedon, see attachment G.
David contested that the storage facilities located within the Town of
Macedon should operate under the Salvage and Recycling code due to the storage
of "junk vehicles" as defined by the code. David then read Town Code Section 135-187-B and 135-187-C
concerning the permitting requirements and the allowed locations of the SRSPC
district. David continued to site
sections of the SRSPC code section.
David then referred again to the definition of a Junk Vehicle and stated
that every new vehicle in this town that is uninsured, un-inspected and
un-registered falls into this definition.
David continued by reading the definition of motor vehicle and the
definition of recreational vehicle out of the codebook. David stated that the boats at the marina
should also be considered under that SRSPC code. David presented 37 definitions that he felt should fall into the
SRSPC code. David continued by asking
Mr. Jeffries to read a section of a Supreme Court Case, attachment G that was a
sworn verification by Warren Jeffries.
David read it aloud to the public.
David concluded by stating that this was his side of the story and he
would like to see someone with the Town being honest for once.
Warren stated that
the Zoning Board of Appeals can do three things; 1. Grant area variances 2.
Grant use variances and 3. Make interpretations, which is what David is
requesting. Warren clarified with David
that he was asking for an interpretation of section 135-187 and that he felt
the Zoning Officer made an incorrect determination by issuing a Special Use
permit for Alpco. Warren asked what the
Zoning Officer did that applicant felt was incorrect. David responded that he is not doing his job because he is not
enforcing the code, specifically the SRSPC section. David stated that the Town Board only acts on the SRSPC for
specific business. Warren again asked
what decision the Zoning Officer made that David felt was incorrect. David responded by stating that the Zoning
Officer should be asked if Macedon Ford needs a Special Use Permit. David stated that he was asking for an
interpretation of section 185-187 as it applied to the list of zoning sections
listed in his application and the list of definitions that he presented. Warren responded by stating that the Zoning
Board of Appeals cannot make an interpretation on the entire codebook. David stated that the board could make an
interpretation on whether the definitions in section 185-7 fell within the
Salvage and Recycling code. Warren
explained that the Zoning Board could only make an interpretation on a decision
that the code enforcement officer has made and they cannot make an
interpretation on a decision that he has not made. Dave Maul referred to the Town Code section that explains the
duties and responsibilities of the Zoning Board of Appeals. David stated that the Zoning Officer has
made a decision not to enforce the SRSPC section of the code. Dave Maul stated that David did not know
that. David asked what was the board's
interpretation of section 135-187, and asked if Macedon Ford did not need a
permit under this section.
Warren asked
again, what decision the Zoning Officer made that was incorrect according to
the applicant. David responded that the
board did not want to give an honest answer and that he would be furthering
this situation with Article 78. David
stated that he wanted to know what definitions fell into the town code section
135-187 and how can a special use permit be issued without an overlay district. David stated that screening and processing
permits are issued without overlay districts and there is not even a section in
the code for screening and processing.
David continued by referencing several businesses in the town that fall
into the Salvage and Recycling section due to the definition of junk
vehicle. Warren stated that if David
had issues with the code it cannot be fixed at the Zoning Board of Appeals, the
only thing the ZBA can do is make an interpretation of a decision that the
Zoning Officer has made. Warren asked
again what decision the Zoning Office made that was incorrect according to the
applicant. David stated that the Zoning
Officer has made a decision not to enforce the code. Dave Maul stated that a lack of action by the Zoning Officer does
not necessarily mean that he has made a decision on the subject. Dave continued by stating that just because
the Zoning Officer hasn't done something that the applicant feels he should do
doesn’t mean that a decision has been made.
David continued by
stating that Alpco is not entitled to a permit. David stated that the code reads that the Zoning Officer must be
authorized by the Town Board to issue a Special Use Permit and this
authorization has not been given.
Warren clarified that David was objecting to the issuance of a special
use permit for Alpco. David responded
that yes, that was the first part of his appeal. Part two of the appeal is the applicant asking for a
determination if SRSPC applies to the definitions addressed. Warren stated that the board could review
the first issue, however, it was not within the Zoning Boards responsibilities
to address the second issue because a decision was not made. David stated that he would send a letter to
Scott asking why other business within the town are not being sited for
violation of the SRSPC. David again
stated that there are 37 definition in the Town Code that apply to the Salvage
and recycling section and there are only two exemptions within the town. Warren stated that the Zoning Board could
not impose new restrictions, they cannot amend any regulations and they cannot
set aside any existing regulations, they can make a determination on whether or
not the Zoning Officer applied the code when issuing a special use permit for
Alpco.
Frank Enos stated
that he was lost but would like to know what was going on. Warren gave a brief overview of what the
applicant was asking the Zoning Board for.
No one else was present to speak for or against this application.
Dave Maul stated
although David has spent extensive time reading section 135-187 and he pointed
out that this was adopted in 1992, he did not mention that this operation long
pre-dates the instatement of this code.
Dave stated that there is a difference of opinion on whether this
business lawfully operated prior to this code.
Dave explained that none of the Town Board members that are currently in
office were in office when the decision was made that Alpco did operate
legally, however the Town Board at that time with the Town Attorney made a
decision that an overlay district was needed for Alpco. Dave explained that the annual special use
permit granted to Alpco was made by the advice of the Town Attorney. Dave stated that it was the Town Board's
opinion that this permit was granted with the due diligence as it has since
1992. Dave continued to state that the
town code might need clarification and possible improvements, however, those
items would fall under the Town Board's jurisdiction. David asked to see the letter from the Town Attorney stating that
Alpco was a legal operation. Dave Maul
responded that it was the Town Board of 1992 that determined that Alpco did not
need an overlay district. Dave
continued by reading section 135-187-K and stated that board in 1992 decided
that the Alpco operation did not require a public hearing at that time and the
special use permit has been issued every year since then according with the
advice from the Town Attorney. David
Morrison stated that Alpco is not entitled to a special use permit without an
overlay district whether or not they were pre-existing to 1992. David continued by asking why overlay
districts exists if they are not needed.
OLD
BUSINESS
Rock-N-Wash
(Joseph DelFino) / 991 Route 31 / Area Variance - Section 135-162-B / Request
to expand a non-conforming building, addition of laser wash bay within the 250'
setback
A motion to open
this discussion was made by Sue Bush, seconded by John Gravino, all in
favor. A motion to deny this
application was made by Sue Bush and seconded by John Gravino. The board discussed the several utilities
located in the area and the short distance to the right a way. Scott stated that a 12" storm sewer was
under the pine trees and the drainage grades are obvious. Warren stated that he had concerns with the
road and by granting this variance it would set a dangerous precedent for
future variance applications. The five
factors concerning an area variance were reviewed.
Roll Vote:
Gravino-yes Packard-yes Bush-yes
Jeffries-yes Therefor this variance is denied.
BOARD
DISCUSSION
John
Schweiger / 3169 Mill Road / Area Variance - Section 135-61-B-5 and 135-61-B-4
/ Request to build an accessory structure in the front yard area with an 81'
front setback
A motion was made
by Sue Bush, seconded by John Gravino to approve this application for a
variance under Sections 135-61-B-5 and 135-61-B-4 for 3169 Mill Road Macedon,
NY 14502 with an 18-month abandonment clause.
Sue stated that this was a problem lot and this seemed to be the only high
ground available. Charles stated that
when an application is given from the Building and Zoning Office it should be
noted where to take the measurements from to avoid confusion in the future. Scott stated that all measurement should be
taken from the right-a-way line and he had asked the applicant to bring a map
with the correct measurements. Five
factors concerning an area variance were reviewed.
Roll Vote:
Gravino-yes Packard-yes Bush-yes
Jeffries-yes Therefor this variance is granted.
Brownstone
Physical Therapy / 1900 Route 31 (West Wayne Plaza) / Area Variance - Section
135-191-C-1 / Request to install a business identification sign on the façade
of the building between the Pal-Mac Medical Sign and Macedon Veterinary Sign
A motion was made
by Sue Bush, seconded by Charles Packard to deny this application due to lack
of representation.
Roll Vote: Gravino-yes
Packard-yes Bush-yes Jeffries-yes Therefor this variance is denied.
Scott questioned
whether this should be tabled vs. denied and stated that there may be a valid
reason for the applicant not to be present.
Scott also questioned if the applicant would be able to re-apply for the
same variance after this denial. The
board responded that it is noted on the application that representation must be
present at the meeting and the applicant would be able to re-apply with the
proper fees.
David
Morrison / 846 Macedon Center Road (Alpco) / Request for an interpretation of
the Town Code Section 135-187 in relation to the issuing of a Special Use
Permit for operation at the above location
Warren Jeffries
explained that the Zoning Board of Appeals would not be able to satisfy the
second half of the applicants request concerning the interpretation of the Town
Code section 135-187, however, they can review the Zoning Officers decision to
issue a special use permit to Alpco.
Warren explained that the board had three options, they could affirm the
Zoning Officers decision, Modify the Zoning Officers decision or determine that
the Zoning Officer made an error in issuing the special use permit based on the
code. A motion to affirm the Zoning
Officers decision to issue a special use permit to Alpco was made by Sue Bush
and seconded by Charles Packard. The
Zoning Board of Appeals in order to make this determination needs to determine
the original intent of the board at the time the code was written. Warren asked if any of the board members had
any comments in the original intent of the acting body. Warren stated that as he understands, it was
the determination of the acting body in 1992 when this code was adopted that
Alpco was an existing lawful operation.
Warren explained that under section 135-187-K no timeframes are given
for a lawfully pre-existing operation to conform to this section. Sue questioned if their have been any
changes, modifications or enlargements of this operation within the last
year. David Morrison replied that none
of this has occurred in the last year to his knowledge. Scott explained that the operation was
modified in 1993, however, if the applicant had an issue at that time it should
have been addressed then. The past
several years Alpco has received a Special Use Permit without being
contested. Scott also explained that
Alpco has recently been granted a fill permit but this is a continued
operation. Charles questioned how Scott
was going to handle this in the future.
Scott stated that he was going to continue to issue the permits as long
as the operation stays as it is. Sue
stated that her decision would be made on the last 12 months of operation and
if there are changes going forward the operation should be reviewed at that
time. Sue also stated that if the
permit has been issued for the past several years, she didn't feel it was
appropriate to revoke the permit based on a decision from that long ago. Warren stated that he would recommend to
Alpco to consider conforming to section 135-187 with an overlay, however, as
long as they are complying with section 135-187-K then this is not needed due
to lack of noted timeframe. Warren
noted that there were no factors or criteria for the Zoning Board to follow for
interpretations.
Roll Vote: Gravino-yes
Packard-no Bush-yes Jeffries-yes Therefor the Zoning Officers decision is affirmed.
MOTION
TO ADJOURN was made by John Gravino and seconded by Sue Bush, all in favor.
Adjournment 9:48 p.m.
Respectfully
Submitted,
Jennifer
Habecker, Building and Zoning Clerk