TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS
WEDNESDAY 2/26/2014, 7:30 PM

ZBA MEMBERS PRESENT: Jim Levesque, Greg Michalak, Louise Ortman, Dan Thomas,
Brad Lawson, Zoning C.E.O.
Dave Stapleton, Attorney
Others Present: Kevin & Keri Ash, Diane Hendrix, Paul Stenger, Mary Glatt, Lynn Johanson, Marisa Johanson, Robert Johanson, Richard Thayer, Sandra Thayer, Kevin Cashdollar, Sue Ann Cashdollar, Ben Ludwig, Scott Tempery, Kristen Wolcott, Ben Swanson, P.J.

Mr. Levesque opened the hearing at 7:30 PM. Mr. Stapleton swore in all who expressed intent
to speak.

1. Wall Street Dairy, LLC requesting a Special Permit to operate a cheese producing facility,
   (Farmstead Cheese) in an existing building in the AG District, Sec. 407, at property located at 3353
   Wall Street Rd., Specifically Section 330.00-1-19.2 (old # 4-1-9.2).Kristen Wolcott said she would be representing the application for Wall Street Dairy owners Jeff Winton and Jim Modica. She said she would be the cheese maker for the enterprise. She gave extensive background information on the current dairy which has been operating since 2007. She said the building they will be using for the cheese making is a currently existing building and they will be using only milk produced at the dairy for their cheeses. She stated there are two existing wells on the property; one will be used for the dairy operation and the other for the cheese operation. She said the existing septic will be used only for wash and processing water. She stated the whey generated from the cheese making process will be fed back to the heifers, calves and dry cows. If there is too much whey for feed they will apply for a DEC SPDES permit to use it in fields as a fertilizer. Mr. Levesque asked about time constraints in the application and receipt of a SPDES permit. Ms. Wolcott estimated that about 450 gals. of sweet whey will be generated per week in the process. Mr. Lawson clarified that a permit from the DEC would be needed for any other type of whey disposal. He said he had spoken to the Chautauqua Co. Dept. of Health and the DEC and it is a relatively easy process for this type of SPDES process as long as the ground will accept the whey and things will grow afterward. Ms. Wolcott gave a description of the types of cheeses they plan to produce and
   indicated that the hours of operation would be the same as most small retail businesses of 10:00 AM to 6:00 PM. She also stated that most of the cheese would go to local retailers.Mr. Lawson said the basic permits needed are building permits; Health Dept. for possible water
   treatment; Special Permit because cheese making is not specifically addressed in our zoning. It was noted that Mark Stow, Chaut. Co. DOH had approved the septic for wash down water. Mr. Michalak indicated that they may also need to check for water potability. Mr. Stapleton noted that a Short EAF has been submitted for the project. Mr. Levesque asked if there were any comments regarding the application.

   Mr. Levesque motioned to take Lead Agency Status on the Short EAF submitted by Wall Street
   Dairy, LLC requesting a Special Permit to operate a cheese producing facility, (Farmstead
   Cheese) in an existing building in the AG District, Sec. 407, at property located at 3353 Wall
   Street Rd., Specifically Section 330.00-1-19.2 (old # 4-1-9.2). Mr. Thomas seconded and the
   motion was carried unanimously.

   Mr. Stapleton reviewed the Short EAF in its entirety Part I, II and III. Minor additions were made to
   the SEQR which are reflected in the document and subsequently become a part of this record.
   Mr. Levesque motioned for a negative declaration of environmental impact for the proposed
   action of Wall Street Dairy, LLC requesting a Special Permit to operate a cheese producing
   facility, (Farmstead Cheese) in an existing building in the AG District, Sec. 407, at property
   located at 3353 Wall Street Rd., Specifically Section 330.00-1-19.2 (old # 4-1-9.2). Mrs. Ortman
   seconded and the motion was carried unanimously.

   Mr. Levesque motioned to grant a Special Permit to Wall Street Dairy, LLC to operate a cheese
   producing facility, (Farmstead Cheese) in an existing building in the AG District, Sec. 407, at
   property located at 3353 Wall Street Rd., Specifically Section 330.00-1-19.2 (old # 4-1-9.2), as
   described in the application and business plan provided, with the following condition:
   · All applicable governmental permits are obtained and complied with
   Mr. Michalak seconded and the motion was carried unanimously.

2. Kevin and Sue Ann Cashdollar requesting an Area Variance to construct and in ground
   swimming pool closer to the lakeside setback than allowed in the R-1 District, Sec. 401, at property
   located at 3254 Chautauqua Ave., Specifically Section 349.20-1-18.Mr. Lawson said the board is looking at two applications, a special permit for a pool in the R-1

   District and an area variance for the distance from the lake high water mark which is 1310.5’. He said he believes the side setback appears to be correct for an accessory structure at 5’ from the property line (ROW).

   There was discussion of the ROW and the Chautauqua Co. Planning Dept. had questioned the distance in its response to the Municipal Referral document. Mr. Lawson said the setback required from the high water mark is 50’ and side setback for accessory use is 5’ which includes any portion of the project (i.e. fence).

   Mr. Levesque noted there is no fencing plan for the pool. Mr. Cashdollar said there will be an aluminum see through fence; pool will be skirted in concrete and there will be gravel around that for drainage. Mr. Levesque said it is important to have the exact locations and dimensions of the pool body, apron and fence as that is a part of the project in consideration relative to setbacks. Mr. Levesque also expressed concern for the creation of non-porous surfaces (i.e. apron) and potential runoff problems. He said an extensive drainage plan is also needed. Mr. Stapleton said anytime the board feels it does not have enough information it has the option of letting the matter go forward to a vote if the applicant wishes on the incomplete application.Mr. Levesque asked if anyone wished to speak regarding the application. Mr. Cashdollar said he could guarantee that the pool would be compliant with the guidelines as outlined in the zoning code requirements with the exception of the setback from the lake. Mr. Cashdollar said the water for the pool will be purchased and will be salt water. Mr. Lawson said the amount of salt is minute. Mr. Lawson clarified that the variance must include all parts of the project (pool, apron, fence) in the actual setback footage from the high water mark (front of breakwall).

   Letters were read into the record in opposition to the project from the following neighbors: Robert & Lynn Johanson; Sally & Philip Holland; George & Carla Adams; Cherie A. Hepp; Patricia Johnson; Diane Brosius & Joyce Edwards; Mary Glatt. Three neighbors spoke in opposition to the project citing the following objections: obstruction of view shed; detriment to character of neighborhood; proximity to lake; setting a precedent; runoff and drainage; effect on property values; pump noise; disturbance to old growth tree roots. There were none present in favor of the application.

   Mr. Levesque motioned to take Lead Agency Status on the Short EAF submitted by Kevin and Sue Ann Cashdollar requesting a Special Permit and an Area Variance to construct and in ground swimming pool closer to the lakeside setback than allowed in the R-1 District, Sec. 401, at property located at 3254 Chautauqua Ave., Specifically Section 349.20-1-18. Mr. Thomas seconded and the motion was carried unanimously.

   Mr. Stapleton reviewed the Short EAF in its entirety Part I, II and III. Minor changes/additions were made to the SEQR which are reflected in the document and subsequently become a part of this record. Part II, questions 1., 3., and 10. were deemed to have a moderate impact. Mr. Levesque motioned for a negative declaration of environmental impact for the proposed action of Kevin and Sue Ann Cashdollar requesting a Special Permit and an Area Variance to construct and in ground swimming pool closer to the lakeside setback than allowed in the R-1 District, Sec. 401, at property located at 3254 Chautauqua Ave., Specifically Section 349.20-1- 18. Mrs. Ortman seconded and the motion was carried unanimously.

   Mr. Levesque said the information the board needs consists of pool, apron and fencing dimensions; drainage and overflow plan; pump noise, location, insulation and housing; plan for heavy equipment access and disruption of land. Mr. Levesque reviewed Town Law Section 267 b. 3. Area Variances, questions 1. – 5. Responses were 1) yes 2) no 3) yes 4) yes 5) yes. Mr. Cashdollar said they had chosen the location of the pool because it appeared to be the least obtrusive location for neighbors. Mr. Levesque asked Mr. Cashdollar if he wished the board to vote on the application as it stands or if he wished to have it tabled for the information and detail required and outlined earlier. Mr. Levesque motioned to table the application of Kevin and Sue Ann Cashdollar requesting a Special Permit to install an in ground pool in the R-1 District and an Area Variance to locate the pool 20’ from the lakeside setback which is closer than allowed in Sec. 401 of the Zoning Code at property located at 3254 Chautauqua Ave., Specifically Section 349.20-1-18 for further detail (pool, apron and fencing dimensions; drainage and overflow plan; pump noise, location, insulation and housing; plan for heavy equipment access and disruption of land). Mr. Michalak seconded and the motion was carried unanimously.

3.  Kevin and Keri Ash requesting an Area Variance to demolish 2 existing homes and build a single home closer to side and lakeside setbacks than allowed in the R-1 District, Sec. 401, at property located at 3698 Lakeland Ave., Specifically Section 332.12-1-34, 35 & 36.Mrs. Ash said they are in the process of negotiating the purchase of the 3 properties from Gerald & Maureen Olejniczak and the sale is contingent on receipt of an Area Variance approval. She said there are 2 homes and 1 garage currently on the property and they intend to demolish one home (the front one) and the garage. They will use the second home until they are financially able to move forward with their plan to demolish the final home and build a new one in 2017. She presented the plan designed by Architect Diane Hendrix for the proposed home. Mr. Lawson said an area variance is also needed for the lot size because the combined lot size is 15,369 sq. ft. which is non-conforming. Mr. Lawson said that the Health Dept. has approved the new septic system plan as submitted. Mr. Stapleton said it will be one deed with three different descriptions and suggested when the sale is complete the applicant’s have the assessor combine them into one parcel number. Mrs. Ash said the combined square footage of the existing buildings on the lots is 1,708 and the new structure is 1,567 which will be a reduced footprint. The setbacks requested are 12’ from the property line on both the north and south sides. Mr. Lawson said because the land is so flat they have 70’ to the edge of the lake but the high water mark of 1310.5 will cause the home location to be 99% within the floodplain. Mr. Lawson said it would be 50’ from the house and would be 38’ from the deck on the house to the edge of the property line toward the lake side. Mr. Lawson clarified that the applicants agree to make the house edge no closer than 38’ to the deck from the property stakes as outlined on the plot plan submitted. There was discussion of flood insurance. Mr. Levesque asked if anyone wished to speak regarding the application. Mr. Stapleton said that it should be made clear that although area variances generally go with the land, if this one is granted it is specific to the Ash’s only and will not go to any other purchaser unless they use the exact plans the Ash’s have on the record. Mr. Levesque said for the protection of the town he would go further and stated  that if the property is sold, the variances are null and void and the purchaser would have to apply again to the ZBA for any variances required. The Ash’s agreed to that condition.Mr. Levesque motioned to take Lead Agency Status on the Short EAF submitted by Kevin and Keri Ash requesting Area Variance’s to demolish 2 existing homes and build a single home on a non-conforming lot, closer to side and lakeside setbacks than allowed in the R-1 District, Sec. 401, at property located at 3698 Lakeland Ave., Specifically Section 332.12-1-34, 35 & 36 Mr. Levesque noted for the record that the SEQR had been filled out in its entirety (including Part II which is the responsibility of the Lead Agency) and that would be taken into consideration. Mr. Stapleton reviewed the Short EAF in its entirety Part I, II and III. Minor changes/additions were made to the SEQR which are reflected in the document and subsequently become a part of this record. Mr. Levesque motioned for a negative declaration of environmental impact on the proposed action submitted by Kevin and Keri Ash requesting Area Variance’s to demolish 2 existing homes and build a single home on a non-conforming lot, closer to side and lakeside setbacks than allowed in the R-1 District, Sec. 401, at property located at 3698 Lakeland Ave., Specifically Section 332.12-1-34, 35 & 36.

   Mr. Levesque reviewed Town Law Section 267 b. 3. Area Variances, questions 1. – 5. Responses were 1) no 2) no 3) yes 4) no 5) yes. Mr. Levesque motioned to grant Area Variances to Kevin and Keri Ash to demolish 2 existing homes and build a single home on a non-conforming lot at property located at 3698 Lakeland Ave., Specifically Section 332.12-1-34, 35 & 36. Variances requested are 1) non-conforming lot size (lot is 15,369 sq. ft. and 40,000 is required); 2) setbacks from the property line on the north and south sides are 12’; 3) setback from property line stakes on the lakeside is 38’ to the deck and 50’ to the house; as outlined in the minutes and in the application with the following understanding and conditions:

   · The board understands the application is contingent on sale and the construction of the new home may not begin until 2017. Request that the applicant appear before the board prior to the project start at no charge if there are any changes (i.e. square footage, location, etc.).

   · If the property is sold prior to construction the variance is void.

   · If construction is not completed by 2020 the applicant must appear before the board. Mr. Thomas seconded and the motion was carried unanimously.

4. Paul Stenger requesting an Area Variance to construct a porch on the lakeside closer to side setbacks than allowed in the R-1 District, Sec. 401, at property located at 3108 Chautauqua Ave., Specifically Section 350.13-2-1.Mr. Lawson said extensive work is being done on the home at this time and the deck is just an addition to that plan. He said the one portion of the porch is a permitted portion, but the addition will need the variance. Ms. Hendrix the architect reviewed the site plan with the board members and said 3’ of the addition to the plan has been added to make the covered deck the width of the home and it will not encroach any further than the existing home does now at 17.5’ from the property line. Mr. Levesque asked if anyone wished to speak regarding the application. Mr. Stenger said he had contacted the neighbors and supplied them with a drawing. He said he had spoken to Mrs. Johnson and they had not responded back with any concerns. Mr. Levesque reviewed Town Law Section 267 b. 3. Area Variances, questions 1. – 5. Responses were 1) no 2) no 3) yes 4) no 5) yes.

   Mr. Levesque motioned to grant an Area Variance to Paul Stenger to construct a porch on the lakeside closer to side setback (17.4’ from the property line) than allowed in the R-1 District, Sec. 401, at property located at 3108 Chautauqua Ave., Specifically Section 350.13-2-1. Mr. Michalak seconded and the motion was carried unanimously.

5. Benjamin Ludwig requesting an Area Variance in order to sell a property in the AR District, which does not meet the lot size (size is 0.991 acres) requirement in Sec. 406 (one acre required) at property located at 2843 Rt. 394, Specifically a part of Section 367.00-1-8.Mr. Levesque stated for the record that the variance on application #5. is to purchase the property not to sell the property. Mr. Stenger graciously allowed Mr. Ludwig’s application to be heard in advance of his. Mr. Ludwig said the property is under contract and there has been some disagreement as to the amount of land going with the vacant portion. The property was split up and sold at auction. He said in the process they did not get the full acre required for zoning (actual lot size is .991 acre). Mrs. Thomas said that the property consisting of approximately16.5 acres belonged to Juliet Esperson and her heirs (Mary Bloom) had split the land and it was sold at auction as “approximate” lots. Mr. Ludwig’s portion was supposed to be 1 acre but fell slightly short. Mr. Stapleton said the vote should be on consideration of a non-conforming lot as a conforming lot for purposes of zoning. Mr. Levesque asked if any one wished to speak regarding the application. Mr. Levesque reviewed Town Law Section 267 b. 3. Area Variances, questions 1. – 5. Responses were 1) no 2) no 3) no 4) no 5) no.

   Mr. Levesque motioned to grant an Area Variance to Benjamin Ludwig to purchase a property in the AR District which does not meet the lot size (size is 0.991 acres) requirement in Sec. 406 (one acre required) at property located at 2843 Rt. 394, Specifically a part of Section 367.00- 1-8. The variance creates a conforming lot size with the dwelling for the applicant for any further appearances before the board. Mrs. Ortman seconded and the motion was carried unanimously.

The hearing was adjourned at 11:00 PM.
Nancy Thomas
Town Clerk