Minutes of January 26, 2006 of the Town of Rochester Zoning Board of Appeals, held at the Town Hall, Accord, NY.
Meeting was called to order at 7:30 PM by Chairperson, Marijane Knudsen.
Present: Elizabeth Kawalchuk Absent:
Stanley Hudson
Marijane Knudsen, Chairperson
Robert Godwin, Alternate James Kingston
Beatrice Haugen-De Puy, Vice Chair
Also present was Town Attorney, Rod Futerfas and Liaison, Alex Miller.
Pledge to the Flag.
Chairperson Knudsen welcomed Alex Miller as the ZBA’s new Liaison and thanked Francis Gray for his years of service as the Board’s previous Liaison.
She welcomed Mr. Futerfas as our new Town Attorney and thanked Mary Lou Christiana, Esq. for her past years of service to the Board as Town Attorney.
ACTION ON MINUTES
Mrs. Haugen-De Puy motioned to approve the minutes of the December 13, 2005 meeting seconded by Mr. Hudson.
Vote: Godwin, Alt. – in audience Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
PUBLIC HEARING
RICHARD GELDARD & ASTRID FITZGERALD– Appeal for Hudson Valley Resort Zoning Permit #325 for an arcade and supporting areas for a water park facility along with updated meeting rooms and kitchen facilities plus 100 family style rooms to replace existing rooms, 400 Granite Road, R-1 District, Tax Map#76.4-1-56.1
Mr. Geldard & Ms. Fitzgerald were present on behalf of their appeal.
Chairperson Knudsen noted that the Public Hearing has been opened, but prior to turning the Public Hearing over, she announced that this morning the Board had received correspondence from the Hudson Valley Resort (HVR) from Robert Burrick who is the Director of Strategic Development and he asked that this letter be read:
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“Please be advised that it is the intention of the Hudson Valley Resort & Spa to submit no response to the appeal filed to overturn the decision of the Town Planning Board and the permit issued by Doug Dymond. The ownership made this decision on the basis of the pending moratorium on construction within the Town. Rather than litigate the issue regarding the appropriateness of the actions by the Town Planning Board and Mr. Dymond, the resort prefers to expend its energies to obtain the site review and special permit which certain members of the community believe appropriate.
The ownership of the Hudson Valley Resort & Spa remain of the belief that the vitality of the resort is essential to the economic growth and security of the town and the surrounding area. The ownership trusts that the members of the Town Planning Board, the Town Supervisor and the residents of the Town will review the resort plans with fairness and an open mind without the need for rumor or distortion of facts as to the nature and extent of its development plan.
The resort does not intend to appear at the January 26, 2006 hearing.
This letter is being written without prejudice as to any other matters that may be brought before the Zoning Board of Appeals following site review with respect to the subject matter of the pending appeal.
Thank you for your attention to this matter.
Very truly yours,
Robert S. Burrick
Director of Strategic Development”
The Chairperson continued to note that the Board also has within the record with regard pending information dated September 6, 2005 from Mary Lou Christiana, Esq. who was the former Town Attorney. She felt that the applicants were required to have Site Plan Review and Special Use Permit. The other issue at this point is that we have spoken with our new Town Attorney, Mr. Futerfas, who can share some of his opinions in this matter.
Mr. Futerfas noted that he did receive the same communication from Mr. Burrick that was just read into the record. He spoke briefly with Mr. Burrick and he did indicate that he was not going to be objecting to the appeal. Mr. Futerfas has looked at Mrs. Christiana’s letter and the correspondence in the file including Mr. Dymond’s position. Mr. Futerfas’s opinion was that Mary Lou Christiana’s position was the correct one. It did appear to Mr. Futerfas that there is a grandfathered use within a residential zone, the Code does permit expansion of those uses, but only after a Site Plan Review process has happened. Mr. Futerfas relayed this opinion to Mr. Burrick as well as the former Town Attorney’s and that being the case, he suggested to the ZBA that if the Board wanted to vote before the public comment on the question to see whether or not there was a need to go on with the Public Hearing that they could do so and if it is determined here after the vote of the Board that the appeal should be granted and that the Site Plan Review process should be required that there would not be a need to go through all of the discussions with respect to the issue.
Mrs. Fitzgerald questioned if that would mean that the Town would become Lead Agency?
Mr. Futerfas explained that the Board was not addressing that issue at this point. The only issue at this point is the question of whether or not Site Plan Review was required here.
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Mrs. Fitzgerald noted that they had some other points that they had.
Mr. Futerfas explained that those points would be better taken up at the appropriate time if it had to do with the Site Plan Review Process or anything else. The only issue that this Board is dealing with is if Site Plan Review was required for this application. Mrs. Christiana has indicated that it was her opinion that it is. Mr. Futerfas has stated that it is his opinion as well. The HVR has elected not to contest the appeal that has been brought forth or the opinions of the Attorney for the Town.
Mr. Geldard wanted to clarify something. Site Plan Review would mean that the original determination of the Code Enforcement Officer that a Special Use Permit is required would be reinstated?
Mr. Futerfas answered yes.
Mr. Geldard noted that this was basically all they were here to accomplish at this point.
Mrs. Fitzgerald noted that they also found in one of the codes where it speaks about the fact that a water park is not allowed in a residential area.
Mr. Futerfas stated that when the Site Plan Review process is implemented is when the appropriate time would be to raise that issue.
Chairperson Knudsen noted that at this point a motion would be in order for the Board to either continue the Public Hearing or at this point under Section 140-62 of the Code, the Board can modify, affirm, or reverse the order of the Code Enforcement Officer and it appears at this point with both attorney’s and the applicant are all in agreement that a Special Use Permit is required, a motion would be in order if the ZBA agreed.
Mrs. Haugen-De Puy motioned to ask that the Special Use Permit be required. Seconded by Mr. Kingston.
Discussion: Chairperson Knudsen asked the Board should their motion also include the fact that under Section 140-62 that the Board is in agreement with the first decision of the Code Enforcement Officer that a Special Use Permit is required.
The Board agreed that this should be included in the motion.
Mrs. Haugen De Puy motioned to amend the previous motion to read that the Board followed 140-62 in the Zoning Law. Seconded by Mr. Kingston.
Vote: Godwin, Alt. – in audience Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
The Chairperson noted that the Board still had a Public Hearing and they haven’t closed it yet. She further noted that what has happened is that the Board was in agreement that there is a Special Use Permit process that needs to be required in regards to this project. The Applicants agreed, the Board has agreed, both attorneys agreed, and the HVR agreed. So, for them to go any further with their proposal, they will have to go through the Planning Board process. What other issues come up will come up with the Planning Board. Since this was still a
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Public Hearing and although all business was settled, the Chairperson asked if anyone had any questions or concerns?
Mr. Geldard was recognized to speak and wondered if it were appropriate to put their 2 page presentation into the record.
Mr. Futerfas believed that the application for the appeal addressed their issues.
Mr. Geldard noted that the application was simply filling out the proper forms and this information that he was going to present tonight represented the argument and the Code back up why a Special Use Permit was required in the first place and why it shouldn’t be reversed. He wanted it to be entered into the record.
The Chairperson stated that it was part of the record.
Mrs. Bendelius submitted her statement for the record as well.
Mr. Fornal wondered if there was an element of the application that is not going to be allowed and it comes to the Planning Board and they say that they were going to do a Special Use Permit and Site Plan Approval, how would you appeal that—if the element in the application isn’t under a Special Use Permit or Site Plan Approval?
The Chairperson stated that it would be referred back to the ZBA.
Ken Lungzinger questioned what was required after this Public Hearing?
The Chairperson stated that it was up to the applicant now to present their application for Special Use Permit and Site Plan Approval to the Planning Board.
Ed Duffy questioned if the Board was aware of the pending sale of the HVR?
Chairperson Knudsen noted that the Board has heard that, but has not been informed officially. This happens all the time where properties come and go. What ever they do, if it requires a variance or a special permit or review, they will come before the ZBA for a Variance or an interpretation or they will go before the Planning Board for whatever permits they may need prior to application. No applications have been submitted to her knowledge. The Chairman for the Planning Board, Melvyn I. Tapper, was present and she questioned if he knew anything?
Mr. Tapper was not aware of anything. There was a presentation planned for the next Town Board meeting, but that had gotten cancelled.
The Chairperson noted that information is on the website if any Public Hearings or announcements were taking place.
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Mr. Baden questioned why when this was referred to the Planning Board originally, why the applicant came in and said he didn’t think it complied and it was reversed back to the Code Enforcement Officer. When he reads the Town Code, if the applicant thought that he was ruled unfairly by the CEO, he should have filed an appeal to the ZBA. He was concerned with setting a dangerous president for any applicant to think he was being unfairly ruled to ask for a re-review. He doesn’t know if it is the position of the ZBA to send a letter to the Town Board or the Planning Board, but this process that happened shouldn’t have taken place. It should have been the applicant of the HVR here.
The Chairperson stated that the Board would take that under consideration, but we are here right now in regards to this, but the ZBA is not the CEO or the Planning Board, the ZBA just gets the appeals, Area or Use Variances. She understood where Mr. Baden was coming from, but she didn’t believe it was the ZBA’s place to initiate any of this.
Mr. Tapper questioned if it would be appropriate for him to answer Mr. Baden’s question.
The Chairperson stated after the Public Hearing.
Mrs. Haugen- De Puy motioned to close the Public Hearing. Seconded by Mr. Kingston.
Vote: Godwin, Alt. – in audience Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
The chairperson noted that at this point the ZBA’s business was completed, however they haven’t adjourned yet. If Mr. Tapper wanted to answer Mr. Baden’s question, he could do it briefly.
Mr. Tapper agreed with Mr. Baden and he further explained that the applicant (HVR) did come before the Planning Board and at his initial presentation he questioned why he had to be there. He felt it was just an accessory use to his hotel. Some Board members felt the same way. Mr. Tapper expressed the same opinion that if he had a problem with the CEO’s determination than he should have appealed it to the ZBA. Other PB members felt differently and a vote was taken and it was in favor of sending it back to the CEO for him to review. The members who did not vote favorably felt it should go to the ZBA for interpretation. This was what started the process. In Mr. Burrick’s letter read this evening he states that this was a decision from the PB and CEO. The PB made NO decision on whether Mr. Dymond was correct or not, other than to send it back to him to review again.
Mrs. Kawalchuk motioned to adjourn. Seconded by Mr. Hudson. All members present in favor.
As there was no further business to discuss, Chairperson Knudsen adjourned the meeting at 8:00 PM.
Respectfully submitted,
Rebecca Paddock Stange
Secretary