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May
17, 2007
Zoning Board of Appeals Minutes
Oswego Town Hall |
Chairman:
Greg Auleta
Board Members: Robert Baker, Timothy Anderson,
Debra Jaskula, Robert Dexter
Attorney to the Board: Kevin Caraccioli
Secretary: Marjorie Best |
Call
To Order:
At approximately 7:05 PM, Greg Auleta, Chairman OF HE Zoning
Board of Appeals called the meeting to order.
Attendance:
Those in attendance were:
Greg Auleta, Chairman
Timothy Anderson, Member
Debra Jaskula, Member
Robert Dexter, Member
Kevin Caraccioli, Legal Advisor
Marjorie Best, Secretary
Absent was:
Robert Baker, Member
Acceptance of Agenda:
Greg stated we should accept the agenda as submitted. He said
in the interest of fairness He asked that the Board approve
a half hour of public comment under the consideration of Old
Business. He would give the folks from United Group an opportunity
to speak, and then ask for discussion from the floor.
Kevin stated for the record that there is a Court Reporter here,
who has not been hired by the Town of Oswego to his knowledge,
but may serve as a useful purpose in the long run. He stated
this is the third public forum on this particular issue.
Approval of April 19, 2007 Minutes:
Greg asked if there were any questions or corrections to the
minutes. There were none. Deb Jaskula made a motion that we
approve the April 19, 2007 Minutes. Bob Dexter seconded the
motion. All ayes. Motion carried
Old Business:
Application #2007-02 - United Group Development Corp. - Oswego
College Suites - Area & Use Variance:
Greg said before we begin and before we set the clock, he wanted
to make a couple of observations. One is to echo the commentary
of Mr . Caraccioli, that we are now in our third meeting in
which we have had discussion. I believe the total number of
hours that we have in terms of public discussion in the matter
is well over 4 hours. The committee is in receipt of a variety
of information - individual letters, petition, concerning objections
to the proposal, and we are in receipt of a great number of
letters in favor of the proposal. It should be noted for the
record, that there has been considerable discussion by non residents
of the town. He made one more announcement for the group. Tonight
we hope to consider one of the issues before us which is the
definition of whether or not the complex is a dormitory or apartments.
The Board will not be in a position to consider the issue of
the area variance, or the height variance. The reason is, we
are not yet in receipt of a recommendation from the County Planning
Board on a 239. On the advice of counsel, we have decided that
we cannot consider that tonight.
Greg then turned the floor to United Development Group.
Jeff Smetana of United Development Group said there are a couple
of things they had been asked to clarify. He introduced Craig
Zogby from United, and David Clemenzi from Einhorn Yaffee Prescott
Architecture and Engineering. Jeff said they are pursuing an
additional driveway. It would go North from their property up
to the access road. He said they submitted a letter of request
of SUNY to allow an easement that would be to the benefit of
the college, the project, and to the residents of the community.
(Jeff pointed to the maps showing the driveway).
Greg said for the record, it should be noted that Mr. Smetana
submitted a copy of that letter to the Board.
Jeff said there is also the question as to the height of the
building, specifically how height is measured, and Dave Clemenzi
is going to follow up on that issue.
Dave said the as the local zoning ordinance does not define
how that is measured. He explained that when measuring their
4 buildings, and the lodge building. The State Building Code,
along with model zoning regulations define the measurement of
a building from the average grade of the front to the roof elevation.
With that definition, with our 4 Typical buildings are 35 feet
tall. That 35 feet is consistent with the height restrictions
in zoning. As to the lodge building, which is a 4 story structure,
again when measured in compliance with the New York State Building
Code, is approximately 43 feet, when measured from the average
grade to the to the midpoint to the roof. Dave said he sent
a letter clarifying what he has stated.
Greg said the record should note that the Board is in receipt
of that letter. It was addressed to Greg and he distributed
it to the Board members.
Jeff Smetana said there was one final item he was asked to clarify.
They have provided a section that they have taken a cross section
from this point here (pointing to plans) on 104, which is the
high point coming Westward on 104. They looked at the topography
as well as the structures and vegetation. He pointed to markings
in pink, if you were standing on 104 and looking Southwest toward
the site. This would be the project site. He pointed to another
plan and said it was a scaled down version. What it shows, there
is an initial drop in elevation from this point on 104. This
is the college maintenance building, depicting what the height
would be at about 40 feet. It shows what the existing vegetation
is, which there are 50 or 60 foot trees in there, and it shows
where their buildings would be. We would cut some of the terrain
a little bit, and this shows how it would look in the finished
form. There are some existing homes, some large commercial structures
in the area. There is some very mature growth from this vantage
point. (again pointing to the drawings).
Greg asked if they were going to retain trees on the North side
of the property. Jeff said yes. He said he talked to some of
the neighbors about maintaining some of the screening here.
He also showed where there would be some clearing. The areas
shown in blue looks like water, but it just swampy. There is
tree growth in that area as well. It creates a nice buffer for
the residential homes.
Greg thanked Jeff, and he said basically the conversation stated
at 7:10 PM, and it is now 7:20 - he said by 7:50 we should be
done. He asked if there was anyone who would like to address
the group.
Donald Fitch:
He addressed Jeff by saying that in the beginning, he said people
coming into Oswego will notice the project. Now he is saying
it will be covered with trees. He also asked how many AI are
going to be in there. Is there going to be an RA on each floor,
and security cameras, or an RA and just one security camera?
Jeff said to answer Don's first question, as you continue Westward
on 104, the vegetation will create a screen. As to the AI, there
will be one for every 30 or 40 students. Don asked how many
on a floor. Jeff said there will be 32 students on a floor,
so there would be one RA. Don also said Jeff mentioned a coffee
shop or something like that. There will be a place for the residents
to Get coffee and bagels in the morning, and they might do a
little bit of entertainment on a Friday or Saturday, and the
residents could have pizzas and subs.
Patty Tyrie:
First, Patty submitted an additional page of residents for the
Petition she submitted at the last meeting. She said the day
after the last meeting, she received a letter from the New York
State Association of Towns. I had requested how to go about
making sure that our town goes through the correct procedure
when it comes to a variance request. We want to be sure that
all the procedures go forth that Mr. Tyrie was reading that
night. The Board would have to prove to the developer that all
of these issues are adhered to. The burden of proof lies on
the Board. We also want to make sure that the proper SEQRA process
is done.
Kevin Caraccioli said there are two aspects of this issue. The
site plan has been submitted, and the Planning Board has jurisdiction
over that. We have jurisdiction over the interpretation of what
this use is, and the area variance. With respect to an interpretation
that would constitute a Type II Action, under SEQRA, and that
is not generally an option that is reviewed that you would need
an Environmental Statement or review on. With respect to the
variance, an area variance dealing with height, there is what
is called a Visual Impact Statement, which is part of the SEQRA
process. This Board is going to undergo that exercise this evening.
That, taking with whatever else we do, will be package up, coordinating
with the Planning Board, will be sent to the County Planning
Board, for their review under the General Municipal Law, Section
239. Then a comprehensive review is done by the County. Their
review will then be turned back over to the Town Board, Zoning
and Planning, and perhaps sometime next month there will be
a final decision on all these issues.
Patty Tyrie said no decision will be made tonight until those
things are done. Kevin said no decision on the area variance,
the height issue. There are two issues - one is the interpretation
of the Zoning Enforcement Officer's ruling that this use constitutes
a dormitory. The applicant has suggested that their use is an
apartment complex. That determination will undergo a discussion
after the public hearing. If it is determined to be an apartment
complex, that is permitted by right in that zoning district,
and would not be in need of a variance. There is still the requirement
for the area variance. That won't happen tonight. When the developers
first submitted their application, it was Wayne's determination
that it constituted a dormitory, and there were set back issues
and height issues.
Greg Auleta said we are going to enter this into the record
later on, but under Article 5, Section C, under Board of Appeals,
Subsection 2, Powers and Duties - "The Board of Appeals
shall have all powers and duties prescribed by the Town Law
and by this Ordinance, which are described as follows: (a) Interpretation.
Upon appeal from a decision of an administrative official, to
decide any question involving the interpretation of any provision
of the Ordinance.
Tom Tesoriero:
Tom said the zoning officer has already made a determination
that it is a dormitory, and that is what you are going to decide
tonight where it is or isn't. He wanted to point out some of
the things that have already been discussed at the last several
meetings. One of which is on the blueprints themselves, it stated
it as a dormitory. We asked the gentleman how they rent their
4 bedroom apartments, and they said they rent them a couple
of different ways. He said they rent to a group of 4 - they
sign some sort of bulk lease, then they sign individual agreements
for each room. So if they sign them for each room, it's not
only a dormitory, but a rooming house. Which he didn't know
if a rooming house is permitted in the area. Also, it has been
pointed out several times they are having AI Where else would
you have an RA, except in a dormitory. He didn't know of an
apartment building in the whole county that has AI They said
if they have a disruptive student, they throw out that student,
not the whole group of students. If you rent a house, and you
have unruly people, you can't evict one person out of the whole
house.
Amy D'Angelo:
She said she is a resident of Sterling. She wanted to comment
on the previous individual that said apartment buildings are
multi-unit housing. Multi-unit housing usually has to have separate
utilities for each unit, unless all utilities are being paid
for by the owner. What is the definition of a unit. A housing
unit would contain a bathroom, living area, bedroom and kitchen
facilities.
Greg said perhaps the applicant can respond to this. Jeff said
the way the apartments are designed - dormitory residents share
a common bath and common kitchen, In these apartments, this
is a private living space, a private dwelling unit. They share
a private kitchen, and a private bathroom. In other words, someone
else could not come into this dwelling unit, and use the kitchen
or bathroom. They are full dwelling units under the State Building
Code, as it has a full service kitchen with a range, dishwasher,
refrigerator, microwave, disposal, and there are 2 bathrooms,
one being a handicapped and the other a regular bathroom. Amy
asked about utilities. Jeff said the utilities are included
in the rent. Residents can have their cable and internet in
each of their individual bedrooms, as well as heating and air
conditioning is included in their rent.
Deb asked Amy what her point was in being here. Amy said this
area is familiar to her, and she goes through here all the time.
She is concerned about the aesthetic impact on the development
in this area. I look at these neighborhoods when I drive through
them. She doesn't understand why this 50 acre parcel isn't.
divided into housing. It would be a better use than commercial
property. She doesn't see the need for this project in this
area.
Jack Tyrie:
He asked if there would be an opportunity to address the variance
when you make your determination.
Greg said we have devoted a considerable amount of time to this
already. Discussion has covered a great deal of this area, and
many of the concerns related to this area. He said at the close
of the last meeting we had finished discussion. My inclination
would be that discussion is finished, however, we will probably
have a limited discussion when it comes time to consider the
issue. It is time to come to closure. The agenda calls for Public
Comment at the willingness of the Board.
Jack said that Jeff has not presented at any point, the evidence
to show that this project will not change the character of this
neighborhood. It clearly will, It is going to endanger safety
by adding 700 students who are going to be driving and walking
in an area that has no sidewalks, and many sections have no
lights. You will have people backing out onto 104 which is already
dangerous. The parking lot at the end of Baylis Street is a
commuter parking lot. The shortest distance from this project
to that commuter parking lot is straight down Baylis Street.
Right now, we see trees, but when they put up a 4 story building,
every time he goes out of his front yard, he will see the traffic
zooming down that street. He respectfully requested that they
do what the Zoning Law says.
Jeff Smetana said some of those points will be discussed more
at the Planning Board, but we have talked about the traffic
and parking. Jeff pointed on the drawings to the commuter lots.
These commuter lots - there are 25 spaces here, and 62 spaces
here. They fill up by 9:00 or 9:30 in the morning, and they
are difficult to get into. From this property to head down Johnson
Road, the most likely path would be to head East on 104, and
then head toward one of these lots. Our project is looking to
promote the students leaving their cars here, and using the
bus service.
Jack Tyrie:
Jack asked where did they get their information that says they
are all going to park up there. Have you ever been on Washington
Blvd. at 3:00, 4:00 or 5:00 o'clock when all the students are
driving across campus to their apartments in the city. Now these
students will be driving across 104, through Baylis Street,
Franklin Street, and Draper Street. Jack told Jeff he is saying
all this without any information to back it up.
Jeff said the traffic and parking is more of a Planning Board
issue, and we will be addressing that with a traffic study.
Jerry Stepien:
He stated he lives on Franklin Avenue. He stated he has dealt
with a lot of soldiers, and have dealt with a lot of avenues
of approach. An avenue of approach is that these soldiers come
from other areas." Johnson Road is a primary avenue of
approach into Ontario Heights. That is a primary egress into
our neighborhood. If Baylis Street is backed up, they'll go
Franklin. If Franklin Street gets backed up, they'll go down
to New Street, or let's go to Draper Street. I've seen soldiers,
they get off work - what's the quickest way out. The quickest
way out is the least amount of resistance. You people will have
to protect our neighborhood - ingress and egress of 500 to 1,000
students on a daily basis - you will have to have the heart
and soul to do the right thing. You are going to have soldiers,
students if you will on bicycles, foot traffic, in cars, in
trucks, and SUVs There is absolutely no respect. The traffic
is bad now, but if you throw another 500 cars, it is going to
be complete chaos. This is hogwash. The Sheriff's Department
is no help. I guess I would have to direct traffic myself. Greg
asked if there was a problem, who would you contact if you didn't
contact the Sheriff. Your Supervisor is sitting right over there.
Vickie said he could contact her, and she would call the Sheriff.
Greg asked if Jerry was indicating this is a lawless town and
county. Jerry said he has stood on Franklin Street and see two
cars abreast. Jerry said maybe we could put an over pass over
104. Just jump across 104, and that will take care of it.
Jeff said a lot of the issues that we are talking about in terms
of traffic and congestion, these are concerns that keep communities,
towns and cities everywhere safe. With good design and planning,
we could encourage people to use the bus. This would be a solution
to the issues raised.
Richard Cummings:
He said his wife owns property in the Town of Oswego. He said
he went to his mother-in-law's house. We went to Rudy's, and
back around through the campus, then to my mother-in-law's This
is the street that was called Park Avenue. It goes into Newman
parking lot. We went into her house, came out at exactly 4:32.
They waited to get out into the road, and decided they weren't
going to wait any longer, because the cars were way up past
the diner. So they went back out around down through Washington
Blvd., down to Raby's, and it was backed up with cars there
too. This was on a normal day. We don't need 700 more kids coming
down Johnson Road. The Department of Transportation of the State
of New York is who you would call as far as traffic. Also, there
were 27 houses that the student association bought, and they
were taken right off the tax roll. I hope you people think this
over, because the impression he gets from the Town Supervisor
is it's a done deal already. The way you run the meeting. We
can talk to you. You let the people talk. He said "I honor
you for the way you do things."
Greg said enough numbers have been thrown around, he asked Jeff
how many students would Phase I comprise. Jeff said Phase I
would be 400 students. Greg asked if they had a time frame on
the projected second phase. Jeff said the second phase would
come upon demand, and that would be couple of years down the
road.
Greg said it is now 8:00 o'clock We began the discussion at
7:10, and we would take one-half hour of discussion, and we
have gone beyond that. He recognized that there are still some
individuals who would like to talk. The Agenda states under
Number 7, Public Comment - at that point there will be an opportunity
to express your opinions at that time. At this point, we want
to begin the formal discussion of the one item before the Board.
Under Article 5 - Generation Information of the existing Ordinance
of the Town of Oswego, Section C - Board of Appeals - No 1 talks
about the membership of the Board, and under No. 2 - Powers
and Duties. - he read this before, but it is important to keep
in mind, and he again quoted: "The Board of Appeals shall
have all powers and duties prescribed by the Town Law and by
this Ordinance, which are more particularly described as follows:-
a. Interpretation: Upon appeal from a decision of an administrative
official, to decide any question involving the interpretation
of any provision of the Ordinance".
Greg said the items before us is a statement made by our Code
Enforcement Officer on March 5, Mr. Newton, who is a fine gentleman
and very helpful to all of us. His reason for refusal of the
permit - "Requires an Area Variance for height and set
back requirements". We settled the set back issue with
United Group. There is a height variance requirement, a Use
Variance. R-3 Zones do not allow a dormitory in that area. Greg's
question is "Did Mr. Newton make an accurate interpretation
of what is proposed?" As a general comment, Greg made this
observation. We have to look literally what is in front of us.
As he has listened to statements being made, he can't imagine
any individuals here, who would want to rent an apartment then
call it a dormitory. In a dormitory, you don't have something
to cook with, something to wash with. All the amenities are
made clear what constitutes an apartment. He asked Mr. Caraccioli
to look into the Town of Oswego Laws, the application, and the
item before the Board. He asked the Board Members if they had
anything to say, and no one did, so turned it over to Kevin:
Kevin said he would read over what he identified as a Legal
Memorandum. He understands that a Legal Memorandum he had written
has been out in the public through an inadvertent release. He
said he is confident in his research that he and members of
his firm did. He read the Legal Memorandum into the record:
"INTRODUCTION
The issue before the Zoning Board of Appeals, in relation to
an application for zoning approval submitted by the United Development
Corp (United Group[) for the development of a 177 unit residential
complex to house, to the exclusion of all others, college students
attending Oswego State University (OSU), is whether the use
constitutes an "Apartment House" or "Dormitory"
as both are defined with the Town's Land Use Control and District
Regulations Ordinance (zoning ordinance).
It is undisputed that the property in question is located within
the Town's Residential ìR-3î District. Accordingly,
an apartment house is a permitted use (Art. IV, Section C(1)(f),
while a dormitory is not permitted. (Foot note - It must be
noted that a dormitory was originally a permitted use in the
ìR-3î District. Currently, dormitories are allowed
in the Residential ìR-4î District and Open Land
"O" District, however such a use is limited to "no
more than three occupants, provided adequate off-street parking
is available on the premises") Upon submission of the application
by United Group, the Town's Zoning Enforcement Officer, Wayne
Newton, determined that the proposed use constituted a dormitory.
DEFINITIONS
"Apartment House" is defined in the zoning ordinance
as "a building or portion thereof used as a residence for
three (3) or more families living in separate, complete housekeeping
units."
"Dormitory" is defined as "a building or part
thereof, used as group quarters for unrelated individuals sharing
common cooking, social and hygienic facilities. Includes fraternity
and sorority houses."
Immediately following the definition of a dormitory is a paragraph
only identified as "A." which appears to define the
term "Family" as intended by the Town when this provision
was added in 19__. This section defines family as "one
(1) to four (4) adult persons, together with any number of persons
related to such adult by blood, marriage or adopting (sic) up
to the 2nd degree of kindred living together as a single housekeeping
unit."
FACTS
The United Group proposes to build a total of nine (9) housing
unites in a complex located on 21 acres of land along County
Route 7. While the units are in close proximity to the OSU or
the State University of New York. United Group maintains its
own supervision of the student residents, provides its own security
wholly independent of Campus Security, grants its student residents
revocable licenses to occupy a unit, as opposed to a lease or
contract which is subject to legal due process. Moreover, the
students are housed in self-contained pods with each student
having his/her own bedroom, and each group of four (4) students
having their own bathroom, kitchen and living room.
DISCUSSION
Applying the provisions of the zoning ordinance to the facts
as established on the record, there is justification for reversing
the ZEO's initial determination that the intended use constitutes
a dormitory. While at first glance the housing complex may more
closely align with the definition of a dormitory as set out
in the zoning ordinance, the zoning ordinance does permit the
ZBA to interpret the common meanings of words, terms and phrases
used In the ordinance.
According to Anderson's American Law of Zoning, a dormitory
is defined as "a place of residence, other than a hotel,
rooming or boarding house that is used, occupied and maintained
for persons enrolled in a college, university, or other educational
institution, and which is recognized and subject to controls
by such educational accessory uses of such colleges and universities,
even if they are called living/learning centers. Finally, dormitories
are regulated by the NYS Public Authorities Law, and more particularly
the Dormitory Authority of the State of New York (see, Dormitory
Authority Sec. 1676).The housing complex proposed by the United
Group will not be subject to such regulations.
The provisions of the zoning ordinance also support this argument
when one analyzes the definition of "Family" contained
in Article I, Section C(A). Since a family is alternatively
defined to include up to four (4) adult persons, each pod would
constitute a portion of a building "used as a residence
for three (3) or more families living in separate, complete
housekeeping unit." (Emphasis added). Since the definition
of Apartment House includes a building or portion thereof, the
Town of Oswego ZBA would be justified in determining that the
housing complex proposed by the United Group constitutes an
Apartment House, as opposed to a Dormitory.
LEGAL AUTHORITY
Finally, the Court of Appeals, New York State's highest court,
has declared zoning ordinances that restrict the size of a functionally
equivalent family but not the size of a traditional family violates
the New York State Constitution's Due Process Clause (NY Const.
Art. I, Sec. 6). Baer v. Town of Brookhaven, 73 NY2d 942 (Five
unrelated residents of a house brought action to challenge the
constitutionality of the zoning ordinance that prohibited more
than four unrelated persons from living together in a single-family
zone).
Upon review of the Town's zoning ordinance, it is clear that
the treatment of non-traditional family units and traditional
family units may violate the State Constitution
(Foot note: Since a family, under Article I, Section C(A), may
include 4 unrelated adults with any number of persons related
to such adult(s) by blood, marriage or adoption, it is not unreasonable
to interpret that provision to include up to 5 or more individuals
living in the same dwelling, while a group of 5 or more unrelated
adults are prohibited from occupying the same dwelling. The
Court in Baer has clearly declared such an ordinance unconstitutional.
It is also noted that the Town of Oswego is currently revising
its zoning ordinance. This issue should be reviewed in order
to comply with the State Constitution.
CONCLUSION
The ZBA is charged with interpreting the provisions of the zoning
ordinance, pursuant to Article V, Section C(2). Such an interpretation
has been requested by the United Group concerning the proposed
construction of a 177 unit housing complex to be located on
21 acres in the Town of Oswego's Residential ìR-3 District.
This district permits, by right (but subject to site plan approval
by the Town's Planning Board), apartment housing. It does not
permit dormitories.
The definition of dormitory does not conform to the facts as
presented. The applicant is not affiliated with OSU, is not
subject to the provisions of the Dormitory Authority Law, and
all other respects will be operated and maintained wholly independent
of (but in cooperation with) OSU. Conversely, the proposed use
is more akin to an apartment house. The definition of family
would permit up to four (4) unrelated adults to live together
as a single housekeeping unit, which is precisely how the applicant
has designed each unit within the housing complex.
This interpretation is supported by the highest court in New
York State, which has declared attempts to restrict the size
on non-traditional family unites, but not the size of traditional
family units, unconstitutional."
Kevin said that is the legal interpretation that he has been
asked to render. He realizes that this is not going to make
everyone happy. It may create a walk through for a review by
a Judge. He feels confident that if the Zoning Board were to
accept my interpretation, then it does form the basis for an
argument that he feels comfortable in making to any Court in
this country. I will turn this over to the Chairman. It would
be appropriate at some point in this proceeding, to consider
a Resolution on this interpretation. He has prepared a draft
Resolution for the Board's consideration.
Greg said we should review for both the audience, and the members
of the Board. It was the interpretation by Mr. Newton that it
is a dormitory, as opposed to an apartment complex. We are in
a position to interpret that Legal Memorandum, either to agree
with it or to disagree with it. I would assume the Board rules
that this is an apartment complex. I assume that someone or
some group will be interested in filing an Article 78 Proceeding,
which would be to appeal this decision of the Board. He asked
if anyone had any questions regarding the Memorandum that was
drawn up. Tim Anderson about Wayne, where did he determine it
was a dormitory. Kevin said he didn't want to speak for Wayne,
he thinks the proximity and relation to the college, and being
occupied by college students, he felt it was more of a dormitory.
With all due respect to Wayne, he didn't have all the available
resources a the time, and he probably made the determination
within the day he received the application. The Zoning Law does
permit the Board to use its own common sense in coming up with
the interpretation.
Tim Anderson had a question on the Anderson's American Law Of
Zoning, "dormitory is defined as a place of residence,
other than a hotel, etc. ---------- is recognized and subject
to controls by such educational institution" . Kevin said
this definition is taken from the City of Syracuse. We have
a definition of dormitory, but taken in and of itself, it doesn't
lend much. When looking at the Law, and the Dormitory Authority,
and Anderson, there has to be a connection between the college
or institution and the living facility.
Richard Cummings:
He said Mr. Newton got his definition of a dormitory from the
New York State Fire Code.
Greg said his first obligation is the zoning regulations.
Bill Dunsmoor:
He asked if the Board is bound by the existing Zoning Laws or
by the Constitution.
Kevin said it is his interpretation that the Town cannot turn
a blind eye to the Constitution of the State of New York. The
Town Zoning Laws that are inconsistent with the New York State
Law, it is his recommendation and belief the Town ought to obey
the controlling law. In this case he believes there are provisions
within the Zoning Law that are contrary to the New York State
Law.
Greg said he had asked counsel to draw up a motion or Resolution
that the Board of Appeals could approve or reject:
"In the Matter of an Application by United Group Development,
Inc.
For an Interpretation of the Land Use Control and District Regulations
Ordinance of the Town of Oswego, New York
RESOLUTION
WHEREAS, United Development Group, Inc. (United Group) proposes
to construct a multi-unit student housing complex to be located
off of County Route 7 (Johnson Road) in the Town of Oswego,
and has made application to both the Town of Oswego Planning
Board and Zoning Board of Appeals; and
WHEREAS, United Group has requested an interpretation of the
Town Zoning Enforcement Officer's (ZEO) determination that the
intended use constitutes a dormitory, as defined in Article
I, Section C of the Town's Land Use Control and District Regulations
Ordinance (the Ordinance), as well as an area variance to increase
the height of the proposed buildings; (Foot Note: "The
area variance analysis will be treated separate from this determination
given the coordinated review of the project with the Town of
Oswego Planning Board including, but not limited to, the potential
visual impacts the size of this project may have on the surrounding
neighborhood pursuant to SEQRA. Pursuant to SEQRA, this interpretation
constitutes a Type II Action and therefore no further analysis
is required," and
WHEREAS, two separate public hearings were held, having been
duly advertised in the Town's official newspaper and notices
being sent to the property owners within 1,500 feet of the proposed
site, to gather public input on this topic, one held on March
15, 2007 and the second hearing held on April 19, 2007, and
the matter having come before this Zoning Board of Appeals (ZBA)
for an interpretation based upon all relevant and material information
that has been presented.
NOW, THEREFORE, upon motion made by board member_______________________
And seconded by board member________________________________,
it is and shall hereby be
RESOLVED, that the determination of the Town of Oswego ZEO that
the use proposed by United Group constitutes a dormitory, as
defined in the Ordinance is hereby reversed in accordance with
the Legal Memorandum prepared by Kevin Caraccioli, Attorney
for the Town of Oswego ZBA, dated May 17, 2007, which is attached
to and incorporated by reference to this resolution; and it
is further
RESOLVED, that it is the determination of the ZBA that the proposed
use shall constitute an apartment house complex and therefore
shall be a permitted use with the Town's Residential R-3 District
and in accordance with the applicable provisions of the Ordinance,
subject to a further determination concerning the area variance
application currently pending before this Board.
Kevin turned the meeting over to Greg for the appropriate motion.
Greg asked that someone make a motion. Robert Dexter made the
motion, and it was seconded by Debra Jaskula. Greg asked if
there was any discussion. Deb had a question on Section C. Kevin
addressed Section C. You need to read the opening paragraph
"Not withstanding the numerical limitations of Subdivision
A of this section, a group of adult persons numbering more than
four (4) shall be considered a family, if the Zoning Board of
Appeals shall make a determination of the criteria are covered.
If the unit is developed to house 5 or 6 students, we would
have another issue. These are designed to house one (1) to four
(4) adult persons. Greg asked the members to vote to overturn
the determination of the Code Enforcement Officer. He instructed
the secretary to call Bob Baker's name, even though he is absent.
All ayes. Motion carried.
Greg said that after New Business, we will go to Public Comment.
Kevin stated there was some discussion earlier regarding the
State Environmental Quality Review Act. Part of the SEQRA process
as it relates to the area variance, the height may involve a
visual impact.
He stated he is working with Mr. Greene, Attorney for the Town
Planning Board in coordinating the SEQRA Review between our
two boards. We both have the authority to issue permits. That
having been said, the bulk of the SEQRA will be performed by
the Planning Board. The variance request for the height may
have an impact on the surrounding environment. It is within
this Board's jurisdiction to consider a Visual Environmental
Assessment Form. Kevin has taken the liberty of preparing a
draft of the EAF. This is intended to be submitted in a package
that includes a long form SEQRA, submitted to the Planning Board,
and further submit to all other interested and involved agencies,
including the Count 239 review.
The Visual EAF Addendum will be used with Section 11, Part 2.
There are impacts to be considered concerning visibility. You
will see a whole list of questions that are asked on the distance
between the project and resource. For instance "a parcel
of land which is dedicated to and available to the public for
the use, enjoyment and appreciation of natural or man-made scenic
qualities". How close to the proposed project would be.-
within † mile; Ω mile; 3 miles; 5 miles or 5 plus miles
away. Kevin said he has done his best to try to answer, but
he feels it is up to the board to go through this exercise.
If we are all in agreement, we will adopt a motion for the EAF
and pass it on to the Planning Board for further consideration.
Kevin turned it over to Greg.
Greg said Kevin has already read the first Visibility, and it
was agreed it is 0-† miles; "Overlook or parcel of land
dedicated to public observation" - Ω-3 miles; "a
site or structure listed on the National or State Registers
of Historic Places" - 0-† miles; "State Parks"
- 5+ miles; "State Forest Preserve" - 5+ miles; "National
Wildlife Refuges and State Game Refuges" - 5+ miles; "National
Park Service Lands" - 5+ miles; - 5+ miles; "Any transportation
corridor" - that would be 104 - 0-† miles; "a governmentally
established or designated interstate or inter-county foot trail"
- †-Ω miles; "Municipal park" - 3-5 miles; Kevin
stated this is a fill in form, but when we do the final draft,
we may have to type some areas in here. "County Road"
- 0-† miles; "State Road" †-Ω miles; "Local
Road" - 0-† mile.
Question 2 - Is the visibility of the project seasonal? - Yes;
Question 2 " Are any of the resources checked in question
1 used by the public during the time of year during which the
project will be visable." - Yes. Item 4 - Description of
Existing Visual Environment. 4 - "From each item checked
in question 1, check those which generally described the surrounding
environment. - Essentially undeveloped; Forested; Suburban Residential;
River, Lake, Pond; Designated Open Space; Hilly" - all
these categories are † mile. Urban is 1 mile.
Question 5 - Are there visually similar projects within - Ω
mile. Question 7 - The situation or activity in which the viewers
are engaged while viewing the proposed action - Travel to and
from work; Involved in Recreational Activities; Routine travel
by residents; at a residence; At worksite - The frequency of
all these are Daily; Weekly; Holidays/Weekends and Seasonally.
Kevin said Greg should ask for a motion to adopt the Visual
EAF, and then submit it to the Planning Board to include in
the long Environmental Assessment Form, and then submitted to
all interested and involved agencies. Tim Anderson made the
motion, and seconded by Bob Dexter - All ayes. Motion carried.
Greg then opened the floor to Public Comment.
Frank Bevacqua:
Frank said when Kevin Caraccioli went through his litany of
information, that one of the reasons this isn't. a dormitory
is because it is not controlled by the college. So does that
mean that the college will never be able to take this over,
or become a dormitory.
Greg said there is the question of likelihood. That would be
subject to a number of factors. What would be the projected
enrollment at the college. If the college were to make such
a proposal, it would have to be based on some kind of need.
Now, there is no projected increased student enrollment. Sometime
in the future this could become college property, so therefore,
it would become a dormitory.
Frank said Mr. Smetana said this would be 177 units. Does that
mean each of these will pay into the sewer system - 177 times,
like people do that have homes with multiple dwellings. Or is
the Ontario Heights Sewer District going to be subsidized in
their waste disposal.
Greg said this is not a matter for the Zoning Board, it would
be a matter for the Planning Board. Mr. Smetana went through
considerable length to indicate that they have engaged with
the Town Board, and the appropriate agencies within the City,
and they have been willing to engage in a financial relationship
in some manner.
Frank said he hopes at sometime we get some definitive answers.
Next door to where he lives, every unit had to pay a fee toward
waste disposal.
Frank said his last point, his impression of a Town representation
is they are supposed to represent the needs of the community.
Some people in this town are favorable toward the project. He
has a feeling this was a done deal before we got here. He feels
the town betrayed us. The quality of life on my street is going
to be much different now. Kids are going to be driving their
vehicles. There will be kids on the street. He just hopes no
one gets injured. He thinks the Board definitely made a mistake.
He doesn't know why the Board approved this type of project
in this area. This is a dormitory, no matter how you try to
wash it through the legal procedure. He said if anything bad
happens, the Board will have to live with it.
Amy D'Angelo:
First, she thanked the Board for allowing the public to attend.
She said she supported the family definitions within the law.
However, she did disagree with the counsel's choice to present
with a different municipality's definition of a dormitory. If
you would remove the unconstitutional part in your own Zoning
Law, and interpret your own Zoning Law's definitions, to determine
whether the Code Officer made a correct decision. Interpreting
your own Zoning Laws based on another municipality in her opinion
is incorrect. Every municipality has the opportunity to find
things as they wish. In Syracuse and Auburn, housing is privately
owned, and they call them dormitories.
Bill Dunsmoor:
Bill said counsel said earlier this evening that no doubt this
will end up in Court. That probably someone else will be making
that decision. Unfortunately, the local people will be the ones
who will share the burden of the expense, not the out of town
people. The other issue he thought fell on deaf ears, it was
said there will be a coffee shop. He questioned if it would
be okay in an R-3 District. He disagrees with the decision on
the dormitory issue, and is sure we will get a decision from
somebody else. And it is going to be costly.
Christina Skubis:
She said she lives on 55 Baylis Street. She purchased the property
in November, and on a weekly basis between 2:00 and 4:00 when
she goes to pick up her daughter from school, traffic pulls
out from the college. Two weeks ago as she was pulling up to
her house, to make a right to turn into her driveway, she was
in an accident. It took 2 hours for a trooper to come to the
accident scene. How is this going to be addressed with all these
extra people.
Dr. Mario Rabozzi:
He said he lives on 18 Baylis Street. If Mr. Caraccioli's interpretation
holds in Court, would it be denying if 4 individuals, related
or unrelated were not college students, and residency is available
in this facility. Could the owners deny those people residency.
Kevin said he believes they could. Any business doesn't have
to rent to someone they feel is inappropriate.
Dr. Rabozzi asked how the owners would regulate who is an adult
and who is not. Some students are quite bright, and come to
college at the age of 16. They are not adults. If this project
goes, people will be monitoring it very closely.
Adjournment:
At approximately 9:30 PM, Deb Jaskula made a motion to adjourn
the meeting. Tim Anderson seconded the motion. All ayes. Motion
carried.
Respectfully submitted,
Marjorie Best
ZBA Secretary |
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