Town of North Harmony

Chautauqua County, New York

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ZBA 9/28/2022

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TOWN OF NORTH HARMONY

ZONING BOARD OF APPEALS

WEDNESDAY, 9/28/2022, 7:00 PM

ZONING BOARD MEMBERS PRESENT:         JIM LEVESQUE      ROGER VAILLANCOURT

                                                                                    WILL ORTMAN      GREG MICHALAK

                                                                                    HELEN EMICK       DAN THOMAS

                                                                                    Brad Lawson, Zoning C.E.O.

                                                                                    Kelly Johnson, Attorney

                                                                                    Stephanie Gibbs, Deputy Town Clerk

Others Present:         Bryan Stevens, Craig Stevens, Betty & Marty Zelaski, Pauline James, Bryce McCullough, Andy Johnson, Dennis Baumann, Julie Brennan, Colleen Dopp, Tom Stinson, Valerie & Roy Scherrer, Kevin Ferrari, Maureen Mack, Nick Andriaccio, Karen Kearney, Aaron Olson

                             Mr. Levesque opened the hearing at 7:00 PM. Kelly Johnson, Attorney swore in all who intend to speak regarding the applications before the board. 

  • MR. LEVESQUE MOTIONED TO ADOPT THE MINUTES OF THE 8/24/22 ZONING BOARD OF APPEALS HEARING AS PRESENTED BY THE TOWN CLERK.  MR. MICHALAK SECONDED.  YES (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT. NO (0).  THE MOTION WAS CARRIED.
  1. Drexeler LLC Decision on re-hearing held 6/22/2022.
  • MR. LEVESQUE MOTIONED TO TABLE THEIR DECISION ON DREXELER LLC DECISION ON RE-HEARING HELD 6/22/2022. MR. MICHALAK SECONDED.  YES (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT. NO (0).  THE MOTION WAS CARRIED.

Mrs. Zelaski said they would like to install a fence for privacy and to keep their property secure and stated she doesn’t feel they will be obstructing any views. She said they already have a 6ft. fence on their property that is in Busti, and they would like to continue the 6ft. fence 12ft. onto their property that is in North Harmony. Mrs. Zelaski stated the distance from the water will be 38ft.

Mrs. Scherrer stated the applicant has steaks, fences, and tarps everywhere, they have blocked their view from the street side and if they put the fence 12ft. further toward the creek it will also block the view of the creek and they would be completely blocked in.

Mr. Levesque read into the record a letter from Nicholas and Debra Conde and appended to these minutes as Appendix A.-ZBA 9/28/2022.

Mr. Ferrari stated that he is against the fence because it will ruin their view of the water that they pay taxes for. He said he doesn’t understand how the fence will make the applicant more secure with just a single fence running down the middle of two properties and he said it looks silly. Mr. Ferrari said there will be a lot of people effected and he doesn’t see a purpose for it.

Mrs. Dopp said the proposed fence will affect her view and she is concerned about the safety of the boats going through that area and the fence possibly blocking their view coming around the corner. Mr. Levesque asked if the creek was straight. Mrs. Dopp said it is not and that it has a lot of curves. Mrs. Emick asked if there was a speed zone. Mrs. Dopp said it is a no wake zone.

Mr. Thomas asked if the fence was going to be 2ft off the property line. Mr. Lawson said Busti’s rules are different from North Harmony’s rules on fences and the property is split between North Harmony and Busti.  He said Busti allows a 6ft. fence right on the property line. Mr. Lawson said they were willing to offset it to accommodate the 2ft. from the property line if need be. Mrs. Emick asked if she understood that the fence will be a continuation and not offset. Mrs. Zelaski said it would be a continuation but if she had to, she could go 2ft. off the line. Mr. Lawson said he misspoke and that they were asking to be right on the property line. Mr. Levesque said they consider views very important. He said you can stand anywhere on the property and the view will be different. Mr. Levesque asked if anyone else wished to speak further regarding the application. He read into the record Zoning Ordinance SECTION 904 – Use and Area Variances; C. Area Variances – 2. a) yes b) yes c) yes d) yes e) yes.

  • Dallas & Kayla Scherrer requesting an Area Variances to construct an addition which does not meet Zoning requirements for side setbacks, creek side setbacks and lot coverage in Zoning Code Sec. 403 on property located in the C-1 District at 102 Creekside Lane, specifically Sec. 367.15-1-56.

Mr. Scherrer said he needs to extend his kitchen another 8ft. He said they must lift the floor because the floor and ceiling are sinking. He said a new footer must be done and while they do that, they would like to add to the kitchen to fit appliances. Mr. Scherrer said they don’t have room right now for the appliances so they would like to add space. Mr. Vaillancourt asked if they would be blocking the view of their neighbor if they were to add an enclosed structure. Mr. Scherrer said it would go to the end of the property to where the neighbor wanted to bring their fence to. Mr. Levesque asked if after the kitchen is built if they plan to have a porch. Mrs. Scherrer said no. Mrs. Scherrer presented pictures of the interior of the current kitchen to the board. Mrs. Emick asked if the kitchen can be repaired in the same footprint. Mrs. Scherrer said the contractor is suggesting a total demolish and replacement. Mr. Ortman asked what the width of the building is. Mr. Scherrer said 17ft. Mr. Levesque asked how much space is between the two houses. Mr. Scherrer said about 30ft. Mr. Levesque asked how they plan to get the supplies to the back of the house. Mr. Scherrer said they have plenty of room. Mrs. Scherrer said the deck is there now and they don’t utilize it so the deck would be gone, and it would be utilized as the kitchen. Mr. Scherrer said his kids will be moving in full time, so they are trying to get it ready.

  • Betty & Marty Zelaski – 101 Creekside Lane

Mrs. Zelaski stated that the addition would go past the fence she previously proposed. She said it is a 1 ½ story solid structure and would block her view. Mr. Ferrari said it would not block his view and pointed out a tarp Mr. and Mrs. Zelaski had up. Mr. Zelaski said the reason the tarp is there is because they put their garbage and garbage cans right next to their house and they don’t want to see it. He said he doesn’t care what they build but he doesn’t want any windows facing their side and it will block the view to the creek.

Mrs. Scherrer said it will not be 1 ½ story. Mrs. Emick asked what the height of the roof is going to be. Mrs. Scherrer said about 12ft. Mr. Lawson said they are closer to side setbacks, closer to the Creekside and over lot coverage. Mr. Levesque asked if anyone else wished to speak further regarding the application. He read into the record Zoning Ordinance SECTION 904 – Use and Area Variances; C. Area Variances – 2. a) yes b) no c) yes d) yes e) yes.

  • MR. LEVESQUE MOTIONED TO GRANT AN AREA VARIANCE TO DALLAS AND KAYLA SCHERRER TO CONSTRUCT AN ADDITION WHICH DOES NOT MEET ZONING REQUIREMENTS FOR SIDE SETBACKS, CREEK SIDE SETBACKS AND LOT COVERAGE IN ZONING CODE SEC. 403 ON PROPERTY LOCATED IN THE C-1 DISTRICT AT 102 CREEKSIDE LANE, SPECIFICALLY SEC. 367.15-1-56.  AS OUTLINED IN THE APPLICATION AND THESE MINUTES. MR. THOMAS SECONDED. YES (0): NO (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT.  THE MOTION WAS DENIED.

Mr. Johnson with Eco Strategies said it is a 9 ½ acre mine and the variance is for property setback which should be 100ft and they want to request 25ft from the set back on the north and east property lines which is the state DEC setback and most gravel mines setback. He said a lot of townships have 100ft. setbacks. Mr. Johnson said the homes are over 500ft. away. If they must abide by the setbacks, they will go from a 9 ½ acre mine down to 6.8 acres so they would lose 2.7 acres and 40% of the gravel mine. He said the end result will be an open pond and open meadow. He said the mine will only be around for about 10 years and there will be little to no processing onsite. Mr. Levesque asked how deep the pond will be. Mrs. Mack said about 30ft. Mr. Lawson said the Planning Board has already heard all of this and recommended to the Town Board contingent on approval by the Zoning Board for the variance. He said rumor says Tri-James is being bought by JMI. He asked if this property is part of that. He said if it is in different ownership already the application will need to be started all over again. Mr. Johnson said it is not under a new owner yet. Mr. Levesque said he asked if Tri-James plans on keeping this property long term and he was told yes. Mr. Johnson said they may sell it. Mr. Levesque asked if there was a letter of intent associated with this application. Mr. Olson from JMI said at this time this property is part of Tri-James. He said they are negotiating but at this time Mr. James name is still on the permit. Mr. Levesque asked how far along they are on closing. Mr. Olson said they are anticipating potentially closing the end of October.

Mrs. Kearney asked if the permit has already been approved. Mr. Lawson said the process with the town is the Planning Board has reviewed the site plan during that review it came up that the mine was too close to the property, so it was sent to the Zoning Board for approval for setbacks. The Planning Board recommended the application to the Town Board contingent on approval from the Zoning Board. The Town Board will hold a public hearing and vote after for approval or denial.

Mr. Levesque asked if this application would connect to the permit. He asked why we have the application if there is a potential new owner. Mr. Johnson said they take time. He said they have been trying to get approval for over two years and it has taken a lot longer than they anticipated and Mr. James just reached the point where he is ready to retire. He said they do a lot where mines change hands and if they do change hands, they would have to fill out a mine transfer form and the conditions given to Tri-James would be transferred and they would have to follow the exact permit so they wouldn’t be able to go away from what was approved. Mr. Johnson said if they wanted to do anything different, they would have to start the whole process over. Mr. Olson said he would be required to post a financial security for the property when the transfer happens. Mr. Levesque asked if there would be any processing on site. Mr. Johnson said they took out processing on site in the early stages because it was a concern of the town. Mrs. Johnson said she wanted to clarify that the 2-year process was with the DEC not with the town. Mr. Thomas asked if the mine would be visually screened by natural buffers and wanted to clarify what those buffers would be. Mr. Lawson said that has already been discussed with the Planning Board during the site plan review. Mr. Lawson said they have met with them three times and have done their due diligence. Mr. Levesque said he is still trying to understand if everything is under Tri-James and there is going to be a new owner what the process is. Mr. Lawson said it will go with the new owner and they will have to follow the same rules and regulations from the DEC and the town. Mr. Johnson said it was asked and discussed in other meetings the possibility of Mr. James selling and retiring and the permits will follow the new owners and they must be followed just as approved. He said they wouldn’t be able to do anything that was not approved without redoing the whole process. Mr. Ortman said the only thing this board should be discussing is the setbacks. He said everything else has already been discussed with the Planning Board and the Town Board. Mrs. Emick asked if they could clarify what will be used as the buffer. Mr. Levesque said he believes most of the buffer is already existing. Mr. Johnson said it will remain open meadow around the pond. He said there won’t be any dikes or unusual topography. Mr. Lawson said he believes there will be a mound buffer. Mr. Johnson said there will be 10ft. berms so there will be no chance of storm water escaping.

Mr. Stevens asked why they are changing the distance from 100ft. to 25ft. Mr. Johnson said because the mine is already so small it won’t be as feasible of a mine. He said if they need to deal with that setback they lose about 40 percent of reserve. Mr. Stevens said it was going to be less that 500ft. from his son’s house to where they were going to dig. He said they made a deal with Mr. James, and this is not what it was. He said it was 100ft. all the way around. Mr. Johnson said there won’t be as much run off into the woods with the pond there. Mr. Stevens said it doesn’t run into the woods now. Mr. Stevens said 100ft is his property line so his property will be in the creek. He said they are trying to mine 25ft off his property line as well. Mr. Levesque asked Mr. Lawson if they have brought this up before. Mr. Lawson said yes that’s why there are here to get a variance. Mr. Lawson asked what the distance will me from Mr. Stevens property to the mine.

Mr. Johnson said 25ft. Mrs. Mack said when the process started the whole parcel plus the house was one property so there wasn’t a property line. She said it took the DEC so long to do this there is now a property line right in the middle. Mr. Ortman asked how that happened. Mr. Stevens said he bought the house. Mr. Ortman asked if it was parceled out and when they bought it. Mr. Stevens said about a year and a half ago. Mr. Ortman said the document is incorrect. He said the 100ft. line goes right through the house. Mrs. Mack said when the documents were created it was one parcel. Mr. Ortman said it is insignificant because it is not one parcel now, so they need to provide correct documents.

Mr. Levesque asked if anyone else wished to speak further regarding the application. He read into the record Zoning Ordinance SECTION 904 – Use and Area Variances; C. Area Variances – 2. a) yes b) yes c) yes d) yes e) yes.

  • MR. LEVESQUE MOTIONED TO GRANT AN AREA VARIANCE TO TRI-JAMES SERVICES, INC. TO PERFORM GRAVEL OPERATIONS CLOSER TO PROPERTY SETBACKS THAN ALLOWED ACCORDING TO ZONING CODE 622 B1 ON PROPERTY LOCATED IN THE AG. DISTRICT LOCATED AT PROPERTY THAT ADJOINS 2992 OPEN MEADOWS RD., SPECIFICALLY SEC. 348.00-2-19.3.1 & 348.00-2-19.1 AS OUTLINED IN THE APPLICATION AND THESE MINUTES. MR. MICHALAK SECONDED. YES (0). NO (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT.  THE MOTION WAS DENIED.
  • Dennis Baumann requesting a Special Use Permit to replace a sign on property located in the R-2 District at 3884 Park Way, specifically Sec. 332.05-1-5.

Mr. Baumann said there was a storm recently and it blew down the previous sign. He said he did not realize he needed a permit from the town to put up a new sign. He said he has a permit from the state for the sign and the state told him as long as he did not change the sign in any way that he was grandfathered in, and he could put a new sign up. Mr. Levesque asked if the new sign was already up. Mr. Baumann said yes. He said he replaced all the rotten wood and removed the electric. He said it was a thin sign the same size over the new wood. Mr. Levesque asked how far away from the road the sign is. Mr. Lawson said about 30ft. and they can be 20ft. from the road. Mr. Levesque asked if it obstructs any views pulling out onto the road. Mr. Baumann said you are past the sign before you stop to turn, and it is open at the bottom of the sign so you could see past anyway. Mr. Levesque asked to add the measurements to the record. Mrs. Emick asked if Mr. Baumann was a new owner and when did he become the owner of the property. Mr. Baumann said he has been the owner as of July 1, 2021. Mrs. Emick asked if the corner property was truly 3884 Parkway because that is also the address for the property down by the lake. Mr. Baumann said the whole property for Pinehill is all 3884 Parkway. Mrs. Emick asked if he has any documentation that he owns the property because it doesn’t show he owns the property on the GIS system. Mr. Baumann said it is getting addressed by his attorney because they subdivided it, and it wasn’t supposed to be subdivided. It is in the process of getting corrected now but you can get it verified with the tax office. Mrs. Emick said we should have proof and clarification for the record. Mr. Levesque asked if anyone else wished to speak further regarding the application.

  • MR. LEVESQUE MOTIONED TO GRANT A SPECIAL USE PERMIT TO DENNIS BAUMANN TO REPLACE A SIGN ON PROPERTY LOCATED IN THE R-2 DISTRICT AT 3884 PARK WAY, SPECIFICALLY SEC. 332.05-1-5 AS OUTLINED IN THE APPLICATION AND THESE MINUTES. MR. ORTMAN SECONDED. YES (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT. NO (0). THE MOTION WAS CARRIED.

Mr. Andriaccio said he would like to put up a pole building for storage. He said he needs a place for his equipment and Christmas decorations and feels putting a storage building in that location would be appropriate. Mr. Levesque asked why he needs it to be so tall. Mr. Andriaccio said he went with the gambrel style because he likes the look of it. Mr. Levesque asked if there will be running water. Mr. Andriaccio said eventually. Mr. Levesque asked if there will be a bathroom or kitchen. Mr. Andriaccio said no. Mr. Lawson said there can be. Mrs. Emick said it is allowed. Mr. Thomas asked how big the property was. Mr. Andriaccio said 28 acres. Mr. Levesque asked if anyone else wished to speak further regarding the application.

  • MR. LEVESQUE MOTIONED TO GRANT AN AREA VARIANCE TO NICHOLAS ANDRIACCIO TO CONSTRUCT A STORAGE GARAGE HIGHER THAN ALLOWED ACCORDING TO ZONING CODE 403 ON PROPERTY LOCATED IN THE AR DISTRICT AT 2899 BUTTS RD., SPECIFICALLY SEC. 349.00-2-73 AS OUTLINED IN THE APPLICATION AND THESE MINUTES. MR. VAILLANCOURT SECONDED. YES (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT. NO (0). THE MOTION WAS CARRIED.
  • American Tower, Inc. requesting a Special Use Permit to perform modifications to existing Cell Tower Equipment located at property owned by Pauline James and located at 3355 Route 394, specifically Sec. 332.00-2-31.

Mr. McCullough said he is looking for a Special Use Permit for an upgrade to the existing structure. He said it will not change the esthetics to the structure and they are adding one antenna to each sector, so they are replacing three and adding three total of nine to increase the capacity. Mr. Ortman asked what service is on there now. Mr. McCullough said Verizon and the upgrade will be T-Mobile. Mrs. James said she is the owner of the property, and she has no objections. Mr. Levesque asked if anyone else wished to speak further regarding the application.

  • MR. LEVESQUE MOTIONED TO GRANT A SPECIAL USE PERMIT TO AMERICAN TOWER, INC. TO PERFORM MODIFICATIONS TO EXISTING CELL TOWER EQUIPMENT LOCATED AT PROPERTY OWNED BY PAULINE JAMES AND LOCATED AT 3355 ROUTE 394, SPECIFICALLY SEC. 332.00-2-31 AS OUTLINED IN THE APPLICATION AND THESE MINUTES. MR. ORTMAN SECONDED. YES (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT.  THE MOTION WAS CARRIED.
  • Tim McManus (Application tabled: ref. ZBA minutes 8/24/2022) requesting an Area Variance to build a new home closer to roadside setbacks than allowed according to Zoning Code 403 located at 3596 Watson Rd., Specifically Section 332.16-1-32.

            Mrs. Emick said the board was waiting for an answer regarding the grandfathered in rule. Mrs. Johnson said if it is not in the same footprint, it is not grandfathered. She said realistically if they stay within the same footprint they do not need to come to the board. Mrs. Emick said there is another piece of property so can they have two residences on the same property. Mrs. Johnson said if they are grandfathered in. She said the board can decide tonight because the hearing has already been held but they should be on the agenda. Mrs. Emick asked if the owner must be present. Mrs. Johnson said they do not need to be present. Mrs. Emick said if they go outside the footprint, it is not grandfathered so they need to say yes or no. She asked if they have submitted anything saying they were staying in the footprint. Mr. Lawson said no because they were waiting for a decision. Mr. Michalak said they are positioning the house in a better spot, and they are making the variances less than they originally were because they are moving away from the line. Mr. Lawson said they are asking to be 8ft. 10inches to the property line and 19ft. to the road edge. He said the application does not give a percentage coverage. Mrs. Emick said if it were only one property and one residence, she would agree to the added coverage but there are two residences. Mr. Levesque said we need to be consistent. Mr. Ortman said he would deny it based on the submitted plans. Mr. Levesque read into the record Zoning Ordinance SECTION 502 – Contiguous Parcels & SECTION 510 A. Number of Swellings on a Lot.

  • MR. LEVESQUE MOTIONED TO GRANT AN AREA VARIANCE TO TIM MCMANUS TO BUILD A NEW HOME CLOSER TO ROADSIDE SETBACKS THAN ALLOWED ACCORDING TO ZONING CODE 403 LOCATED AT 3596 WATSON RD., SPECIFICALLY SEC. 332.16-1-32 TABLED AT PRIOR MEETING. REF. MINUTES FROM 8/24/2022 MEETING. MR. ORTMAN SECONDED. YES (0). NO (6): LEVESQUE, MICHALAK, THOMAS, ORTMAN, EMICK, VAILLANCOURT. THE MOTION WAS DENIED.
  • ON A MOTION MADE BY MR. LEVESQUE, SECONDED BY MR. ORTMAN AND NONE BEING OPPOSED THE HEARING WAS ADJOURNED AT 9:20 PM.

Stephanie Gibbs

Deputy Town Clerk

Bulletin Board

Hours

Monday – Friday: 9:30 a.m. to 3:30 p.m.
CLOSED All Legal Holidays

Thursday Evening Hours:

  • Town Clerk: 4-6 PM
  • Zoning C.E.O: 6-8 PM

Meeting Calendar

  • Town Board Meeting:
    Monday 3/13/2023 7:00 PM
  • Planning Board Meeting:
    Tuesday 3/14/2023 7:00 PM
  • Zoning Board Meeting:
    Wednesday 3/22/2023 7:00 PM