Mark Agle Drew Reilly

Gerard Schwab Scott Henry

Kevin O’Gorman Phil Muck, ZBA

Bill Zittel Bob Stickney, Code Rev.

Excused:

Juanita Majewski Liasions

Dennis Brawdy Edward Krycia, Jr., Councilman

Absent:

Tony Weiss

Andy Romanowski

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Chairman Agle called the September 1, 2005 Meeting of the Eden Town Planning Board to order at 7:45 PM. Agle requested a motion to approve the July 7, 2005 minutes as written and submitted, so moved by Bill Zittel, Jerry Schwab seconded, carried all ayes.

NEW & UNFINISHED BUSINESS:

Chairman Agle stated the Supervisor Nellis & Town Board requested the Planning Board to review/comment and makes a recommendation regarding additional minor subdivisions on Wepax Road. Years ago this was thoroughly discussed by the Planning Board and the Town Board adopted a resolution in 1996 addressing this issue. Kelly Storey explained that her Mom, Joanna Zink has over 5 acres and are requesting to subdivide the property. Zink is recently widowed and Ms. Storey would like to build a home on her mom’s property for many reasons. Agle explained that in 1996 this matter was looked at quite extensively, public hearings we’ve held and much input. We considered, including that from emergency services and the highway department concerning the feasibility of additional homes. Agle stated that this Planning Board would likely recommend upholding the recommendation of the 1996 Planning Board for many of the same reasons stated therein, particularly public health and safety and road conditions. O’Gorman stated the private roads are substandard for emergency vehicles and that if the properties continue to subdivide on Wepax/Kickbush, more and more people will be living on a substandard road. Then they will demand the Town to upgrade the road with the Town money. O’Gorman asked Scott Henry if this area was zoned for in-law apartments? Henry stated that they could build an addition with a couple bedrooms and bath; however not an “apartment” or 2-family dwelling as such. O’Gorman stated that if we approve this individual case, because it in itself may have some merits socially, we open it up for many other subdivisions on these 2 roads. Unless the residents on these roads decide to upgrade these roads to acceptable Town standards themselves, no more subdivision of land should occur. The developers of subdivisions are responsible to build the roads to the Town’s standard, which includes drainage and the sewerage so that the Town is not burdened with these expenses. That was not done on these 2 roads and now it is a mess. Ms. Storey stated that there is not a big turnover of population in this neighborhood. Schwab stated that might be true now, but in 30 years it could be a totally different scenario. Ms. Storey stated that they are Lot #32.1 on the subdivision map. O’Gorman asked if there was anyway that this could be done for them without opening a Pandora’s box? Reilly stated that the PB’s recommendation to the Town Board in 1996 had a condition in it that stated that; allowed would be existing lots that didn’t currently have houses on them to build houses on them in the future; with one stipulation, that there would be no more division of lots on these streets. The adopted Town Board resolution does not specifically include the conditions of the 1996 PB recommendation. Before the TB can amend the current Open Development Law, they must ask the PB for further recommendation. Reilly stated that the Town Attorney would have to review this resolution. O’Gorman asked Reilly just for the sake of discussion, what if we stipulated that subdivision could occur only once on a lot if it were over 5 acres in size? Would that cause trouble for the Town? Reilly stated that it is a good question, but you need to have a justifiable reason because someone could question the “over 5 acres” and why couldn’t they subdivide if they had 5 acres or 4.75 acres or any other number; there would need to be a definitive answer to that. Whatever is decided tonight, this is just one step, the Town must ensure that there will not be a public health and safety issue created by allowing additional lot on not a Town owned road. Emergency & Fire services will have a large input in this issue. O’Gorman stated that he chose the number 5 acres, because potentially that will only allow another 4 houses on that Wepax, that could be realistically done. HOWEVER, Kickbush could be the real problem in regard to this issue. Once Wepax subdivisions are approved, Kickbush residents would expect the same consideration and that could equal potentially 14 homes that could be built on a privately owned road, and we would be opening up 100+ acres of Open Development land to subdivision. O’Gorman stated that we would open a can of worms allowing Kickbush to develop, then it could potentially develop stretching all the way to Yochum Road. Agle stated that the PB is only a recommending department on this issue; if it were to be approved, and then the minor-subdivision would come back to the review board. At this point, it is the consensus of this PB to uphold the 1996 Planning Board’s recommendation that would NOT allow any more subdivision of land. Agle stated that our recommendation was not included in the TB resolution but it was mentioned in the TB minutes that the Town Attorney should devise language regarding subdivision of land in an Open Development of Land in the future. To my knowledge that was never done. Agle stated that the Town Attorney might be directed to re-visit the issue and draft the language that was contemplated back then. Agle and Reilly both referred Ms. Storey continue her research and to submit her findings to the Town Board for further consideration, although it will be a difficult task.

Chairman Agle stated that Supervisor Nellis & The Town Board has asked the Planning Board to review/comment and make a recommendation regarding Town of Eden Proposed Local Law #6 of the Year 2005, which amends several current Local Laws. Chairman Agle stated that Councilwoman Pew heads the Code Review Committee under the direction of the Town Board and is charged to come up with ways to amend Local Laws to make them more “user friendly” in regard too certain code requirements and processes.

Survey Requirement of Proposed Local Law #6-2005.

1) The first proposed amendment applies to survey map requirements in regard to minor structures or improvements. Bob Stickney spoke on behalf of the Code Review Committee, and that the committee was formed to address some complaints of Eden residents in regard to certain requirements that might be “overkill”. Bob requested that the PB not treat the proposed Local Law #6 as a whole, but rather, review and address each section of the proposal individually. Agle agreed and deferred to Scott Henry by asking for the perspective of the Code Enforcement Officer prior to discussing each individual section.

In regard to the Survey may requirement, Scott explained that in the Code under the Building Permits heading that requires an updated survey to show improvements, with precise location and size once the foundation build. When applying for a permit based on your representation as to where on the property you want to place that building. If the representation complies with the Code, then the permit is issued. Once that physical feature exists on the property the code states that a surveyor must locate that building on the property, dimension the building and submit an updated map. The reason you do that is because there are regulations in that code that require that certain setbacks are maintained and there are limitations as to how much property can be developed and therefore a survey map is the only way to be sure that the development is where the applicant represented where it would be. Ultimately, the Town (Code Enforcement Officer) issues a certificate that states that it has been inspected, and based on this information it complies with the requirements of the Code. Scott stated that once he is out there to inspect, without the survey, he has no absolute way of knowing if the structure is placed in the precise area as indicated on the permit application. O’Gorman commented that the onus might be placed on the homeowner who must certify that the structure is placed correctly, and in the future if is found that it is in fact not in compliance, then perhaps the fine shall be $5,000. The theory is that it is costly for them to supply the survey but it is obnoxious that the Code Enforcement Officer has to chase these people down in the future when they violate; but you don’t have a penalty for cheats. Most of the people will bend over backwards to insure compliance. If you have fines for the cheats and reiterate to them that if they build in violation, then there will be a strict fine and then the onus is now on the person doing it. So if he wants to protect himself, he will get a survey completed and if he isn’t worried about it because he is 100’ away from the property line and he knows he is safe. Agle asked if when the applicant signs the permit they are indeed certifying that the information is true and correct? Scott stated that it is what “they believe” to be true and correct. Agle added that if Scott had something objective to use as a guide such as if the building is going to fall within a certain set percentage of the code setback, it would provide a “safety cushion” whereby if the proposed improvement is closer to the property line than the threshold limit, then a survey would be mandatory. That is a point that needs to be addressed by the Code Review Committee. O’Gorman stated that it would force the people who are trying to cheat to think twice. Because at some time, they will be discovered. Maybe not until they sell the house and a new survey has to be completed, but then they will have to pay the penalty. And the people who are trying to build a 10 x20’ shed in the middle of nowhere, will be safe. Now if the neighbor comes to you and states that the building is too close to the property line, then a survey will be mandatory and if the applicant is wrong, then they pay the fine. Agle stated that the only problem is that more than likely it won’t be the cheat that gets caught, but the unsuspecting subsequent owner down the road, who now wants to apply for a building permit and have to pay for previous owners mistakes. Bob Stickney stated that if the applicant is pushing the setback exactly to 20’ then a survey must be required. Also, now a survey is not required until they apply for the C/O. What happens if someone cheated and built too close to the line and the building is finished, what occurs? Agle stated that after the fact, they would need to petition the ZBA for relief, or tear it down; which isn’t likely to happen. Scott stated that for instance, without a survey, according to the proposed new code, that he issues a C/O, on Town letterhead, signed, etc, he is certifying that this property is in compliance with zoning and it might not be in compliance. Then the applicant could litigate that the Town did indeed inspect the project and issued a Certificate of Occupancy or Compliance. Agle stated that typically, the way this works on a major addition or new home, the bank wants to know that the improvements upon which they are lending money is on the property and in compliance and therefore, the surveyor goes out when the foundation is poured. When that survey is done, the measurements are typically taken to the foundation; however, when the framing is completed, it might be much different than the footprint, for instance there might be a cantilevered first floor and it could be 6’ difference, so where a well-intended applicant thought there was 30’ to the property line based on the dimensions (to the foundation on the survey), it might now in fact be 24’ because of the cantilever framing. Adding a 10’ addition would make it 6’ short of the setback. Only a new survey would disclose this discrepancy. Agle stated that the overall concept for a change to the survey requirement is a good idea (Scott concurred), the language in the proposed local law on this subject needs more fine-tuning. Agle motioned to table the recommendation and send it back to the Code Review Committee for additional review and language revision. Bill Zittel seconded, carried all ayes.

DEVELOPMENT COVERAGE: (2 & 3) of proposed Local Law #6-2005. These two are linked and both would change if adopted. Agle asked Henry for the background on the proposed code changes. Henry explained that Development Coverage, as explained in the Town Code, defines minimum lot size, frontage and setbacks. It also indicates the % of development on the property. In the Hamlet zone the development coverage is 25%. Therefore 75% of that lot has to remain green space. Development coverage includes paved areas, concrete patios, impervious surfaced areas, sheds, house and any other buildings on the lot. Included in that development coverage could be decks, and ramps. Sometimes these things are required by certain individuals with a handicap for access. That shouldn’t count toward development coverage. Agle stated that part of the rational for Code Review Committee was that with the Disabilities Act, we couldn’t impose a Code that would be adverse to the disabilities act and therefore couldn’t deny a request for relief from coverage to construct an access for the disabled. Right now the applicant would need to apply to the ZBA to seek relief, and I couldn’t imagine the ZBA denying said relief. But the discussion of the committee is why make the applicant go through that extra step and expense when we could just eliminate the development coverage requirement for applications of that nature. Bob Stickney stated that in addition to what has already been mentioned, there is also an added 30-60 day turn around for that additional ZBA process. Agle agreed that if that is true then maybe the wait time is excessive. Zittel asked how the code would handle existing to new build. If someone is building a new home and needs access for the disabled, it should be contemplated in the design to meet the Development coverage. However, the proposal is meant more to address a situation such as an existing home that needs a ramp installed, then it would not count against the Development coverage. Agle stated, that despite these two examples, the proposed local law changes do not differentiate. O’Gorman stated that it should just not be a consideration in connection to the ramp. Scott stated that if it is just a ramp, he agreed, but if it extends to and includes a deck, then it should be counted. Quoting the code “Accessory structures and facilities used exclusively to give access to persons with disabilities with evidence provided by health care providers or those issued a handicap parking permit.” Scott would like to avoid those individuals who may have a broken leg (temporary handicap) acquiring a temporary handicap permit and then erecting a deck or an attached garage for handicap access and three months later the disability is negated. Schwab stated that a friend has MS and has a beautiful ramp with deck; now he goes to sell his house and the perspective buyer thinks, oh, this would be a perfect area for the hot tub. So the Code should have a condition that stipulates that the accessory structure such as the ramp and deck be dismantled? Scott stated that if the proposed code would limit the structure to a wheelchair access ramp, then it would be easy to decipher. Drew asked, how many people have been turned down because they have exceeded the development coverage? Scott stated, very rarely. Therefore if these applications happen so rarely, why change the code at all? Agle stated that it is probably the goal of the committee is to try to expedite these situations and be “user Friendly”. Most of the time, Scott gets the black eye for sticking to the rules, but the rules are the rules and should be maintained. Phil Muck, ZBA member, stated that he served on the ZBA for over 25 years, and this is the only time this situation has come before the ZBA Board; so do we change the law for one case in every 25 years because one person has made a complaint? Adding that he has had personal experience with a ramp and it was very temporary. Once its purpose was served, it was dismantled. Agle stated that once it is erected and in compliance, then there is no jurisdiction over it. Reilly stated that most Towns do not have a Development Coverage law for residential areas and that at some time in the future you may look at eliminating it all together as well. Agle stated that these codes did not develop overnight; they took time and careful consideration evolving over time, being tested and retested several times. Bill Zittel recommended leaving this code provision as is, no changes. The current Development Coverage regulation should stand as written, no sense in changing the law for an isolated case. The board was in consensus.

4. Accessory Structures proposed changes Local Law #6-2005. Agle asked Scott to explain the concept of the proposed change. Henry stated that currently the code states that typically the principle building is one place on the lot and if an accessory building is erected, it must be place in line or behind the line of the principle building. There are a number of situations that have arisen that due to either the curvature or angle of the road or the placement of the house on the lot, appearance wise, it doesn’t look like it is a problem, but technically according to the scale measurement from the road right-of-way to the accessory building is a shorter distance than is the dimension from the road right-of-way to the house. Then the applicant is forced to apply to the ZBA for a variance to obtain relief for that specific code requirement. Scott thinks that the proposed code change makes perfect sense with one comment that it should not make a difference whether is it s 2 or 5 acre lot. Agle agreed stating that all the existing conditions will apply and in addition to that, that if you are on a lot that is 5 acres or larger you can come closer to the street than the principle building by 2’ or no closer than 200’ back from the street line. The Board agreed to recommend the elimination of the specified lot size. All agreed to recommend the proposed changes to §225-25-A4 except that item (b) on lots larger than 5 acres, be deleted from the proposed changes. Ed Krycia stated that the next item of the proposed changes when the accessory building is to be built no more than 2’ nearer the street than the principle building. Bob Stickney responded by stating that John Hains (ZBA) explained that if someone wants to for some architectural reasons bring an area out for definitive lines, the ZBA doesn’t really need to give relief for such minor variations as long as all the setback requirements of the zone are still being met.

Bowen Pond Request: 9709 Knoll Road: Agle stated that all necessary requirements have been met by the applicant. Scott stated that the pond meets all bulk setback requirements. Drew stated that he reviewed the design and it meets all submission requirements. Mark motioned to approve the pond installation as designed and depicted in the submitted application. Kevin O’Gorman seconded, carried all ayes.

Request for Recommendation: Special Use Permit request to operate a Commercial Dog Kennel at 8595 East Eden Road. Conceptual sketch of the building and layout on the 5 acre lot was included in the packets for review, roughly 300’ in width x 700’. Drew Reilly explained that an applicant would need to seek relief from the ZBA as the property is only 309’ wide and the kennel would need to be placed a minimum of 200’ from the property lines, therefore there is not sufficient land for side lot requirements. Also, there are several residential properties surrounding the proposed area. Barking could become a huge nuisance for the neighbors. O’Gorman stated that this is a no-brainer. As submitted, it does not meet the bulk requirements for use of that zone as well as does not conform to the character of the neighborhood. The recommendation of the Planning Board is to NOT consider the issuance of a Special Use Permit for this use, on this property.

DISCUSSIONS:

Creative Zoning for East Eden. At the May 2005 meeting, Drew Reilly submitted a “Traditional Neighborhood” code (TND) that was written for Clarence Hollow and distributed to the Eden Planning Board to review and use as an example of what could

Traditional Neighborhood/Creative zoning – Tabled until entire board is present to discuss. No rush now due to the existing restaurant issue being resolved.

Kevin O’Gorman questioned Scott as to whether or not Mr. Zimmerman will be required to comply with the green space “planter box”. Scott stated that a C/O has not yet been issued and that the requirement will be enforced in due time. O’Gorman suggested that Scott pull all of the C/O’s and force Mr. Zimmerman to come back before this Board. Scott should not have to put up with people who refuse to comply with the requirements of this Planning Board. Agle asked if Scott would send him a letter notifying him that he still needs to comply with the “planter box” requirements as that it was discussed and which he agreed to do at the September meeting. Drew stated that the Board really doesn’t have the power to re-call C/O’s. But if and when Mr. Zimmerman comes in for yet another site-plan review, you can then make the requirements stick before approving additional site-plans.

ANNOUNCEMENTS:

Drew Announced that the will be an APA/ASLA meeting locally (Buffalo Hyatt Regency) on September 22 & 23. The Town Board may authorize some of the Planning Members to attend. Drew will get a copy of the announcement to Cathy to send out to the members. Unfortunately, it is daytime seminars.

ADJOURNMENT:

Bill Zittel motioned to adjourn the meeting; Kevin O’Gorman seconded the motion, carried.

Respectfully submitted,

Catherine A. Swiech


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