TOWN OF VICTOR ZONING BOARD OF APPEALS October 16,

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1 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, A regular meeting of the Town of Victor Zoning Board of Appeals was held on October 16, 2017 at 7:00 P.M. at the Victor Town Hall, 85 East Main Street, Victor, New York, with the following members present: PRESENT: Keith Maier, Chairman; Scott Harter, Vice-Chairman; Michael Reinhardt; Donna Morley; Matthew Nearpass OTHERS: Alan Benedict, Code Enforcement Officer; Dan Crowley, Town Board Liaison; Dave Condon, Town Councilman; Chris Livermore; Michael Montalto; Robert Marvin; Mr. & Mrs. Jim Hendler; Jacqui and Rick Frederick; Jerry Watkins; Sam Damico; Debby Trillaud, Secretary The meeting was opened, the Flag was saluted, and the Pledge of Allegiance was recited. Dave Condon, Councilman, read parts of the Community Planning Month Proclamation. Councilman Condon Whereas, change is constant and affects all counties, cities, towns, villages, and other places; and whereas, community planning and plans can help manage this change in a way that provides better choices for how people work, live, and play; and whereas, community planning provides an opportunity for all residents to be meaningfully involved in making choices that determine the future of their community; and whereas, we recognize the many valuable contributions made by the Town of Victor Planning and Building Department along with our planning consultant team at LaBella and the extend our heartfelt thanks for the continued commitment to public service by these professionals, such as yourselves; now, therefore, be it resolved that, the month of October 2017 is hereby designated as Community Planning Month in the Town of Victor in conjunction with the celebration of National Community Planning Month. This was adopted on the tenth of October, 2017, and signed by Supervisor Jack Marren. I just wanted to thank you guys for all your hard work. On a personal note, I ve been on the Board for a year. I ve been coming to the meetings and I can t thank you guys enough for the work and dedication you guys put in to help make Victor a better place to live. Thank you. The Board members gave their thanks. APPROVAL OF MINUTES: On a motion by Keith Maier, seconded by Scott Harter, RESOLVED that the minutes of September 5, 2017 be approved as submitted: Keith Maier Scott Harter Michael Reinhardt Donna Morley Aye Aye Aye Abstain

2 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mathew Nearpass Abstain Approved: 3 Ayes, 0 Nays, 2 Abstentions PUBLIC HEARING TABLED AT 10/2/2017 MEETING LIVERMORE ENTERPRISES Area Variances 6415 Plastermill Road Z-2017 Applicant would like to operate a truck & trailer repair service in the existing building. Section A(7)[3][b] states the facility shall be at least 1,000 feet from the boundary of an residentially zoned district while the lot south is a residentially zoned district and Section A(7)[3][c] states that the facility structure must be at least 500 feet from any off-site structures of a residential use while the lot to the east has townhome units 21.8 feet from the lot line. The lot is approximately 400 feet deep and approximately 330 feet wide and therefore does not meet the Code requirements. Chairman Maier We have a public hearing that was left open for Livermore Enterprises. Good evening. Mr. Chris Livermore of Livermore Enterprises addressed the Board. Mr. Livermore Hello, how are you? Do you want to start from scratch? Chairman Maier I don t know that it s necessary to start from scratch. I think that if you want to review what has been submitted since the previous meeting. Mr. Livermore We ve been to the County Planning Board and they made a referral to send it back here. They basically said that they wanted a green buffer installed, more than what is already there. Chairman Maier OK, we will discuss that, we got the comments also. You also did the response for the five criteria, thank you. I believe we also have minutes from the Town Board and Planning Board meetings, is that correct? Have you read through those? Mr. Livermore From the last meeting? Chairman Maier No, from Mr. Livermore No, I did not.

3 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Chairman Maier gave a copy of the minutes from 2006 to Mr. Livermore. Chairman Maier So we have Ontario County, along with the minutes, is that correct Debby? (Yes) Ms. Morley did not have any questions. Mr. Harter I don t have any questions, but I wasn t here at the last meeting so I m not totally up to speed on what is going on so I ll pass for now. Mr. Nearpass Are we concluding that the Town did give the owner of the property a bit of a pass on the residential vs commercial? Chairman Maier My understanding is that the Town allowed Morgan Development, they minimized the requirement for a buffer against the existing property, which is what we have tonight. There are comments in there from the existing property owner regarding the buffer but for his property, not for the property that was being developed. Originally back then, Al, correct me if I m wrong, the buffer that was required was 100 feet between there was a discussion about a 100 foot buffer. Mr. Benedict inaudible. Chairman Maier There was no requirement for the existing applicant or the existing property owner to put a buffer in back in Mr. Nearpass So Rudy Kumpf never received a document from the Town attorney that he requested? Chairman Maier I think what he referred to at the last meeting was the minutes. I don t know that he has a document there, but it s in the minutes. Mr. Nearpass Did he ask for one? So these are the minutes from Chairman Maier Yes, and there are several meetings. We ve got August 14; August 28. On August 14 th there was some discussion regarding the applicant with Jerry Goldman, meaning Morgan Management waiving any problem with that consent to develop within that 100 foot buffer area. So at the time there was a 100 foot buffer requirement and Morgan Development did not want to deal with the buffer.

4 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Nearpass This one specifically says, it s on page five, August 14, 2006 Rudy Kumpf, 682 Egypt Road, one of the owners of the property next to the proposed project, he does not have any objection to the project. For further expansion of their business, they would like to ensure that they will continue to have the 30 foot setback requirement in writing. He would require a document from the attorney, Town.. Just below it Attorney Jones said he would review the Code and the resolution for the adoption will include a condition that a buffer does not apply to this parcel. To me that sounds like they almost made it definite. It almost sounds to me like he has what he thinks he has when he was here at the last meeting. Chairman Maier What I think he is I think this pertains to minimizing the 100 foot buffer to a 30 foot buffer. I think what he wanted was a 30 foot buffer on the Morgan It goes into the whereas the regular Town Board meeting of August 28 th. Mr. Nearpass So we agree that he has the 30 foot buffer as if he wasn t neighboring a residential district. Chairman Maier The question that comes up is that Ontario County Planning Board is recommending a 30 foot buffer. That this applicant put in a 30 foot buffer. So the question to this Board is that a requirement we want to make given the fact that Morgan Properties was supposed to put a 30 foot buffer in? We talked about it at the last meeting, normally the applicant for subdivision or development is required to put the buffer in. Ms. Morley Is there not a row of trees there? Chairman Maier There are pines. Whether it s 30 feet, I really don t know but there is probably at least a 20 foot buffer between the fence. They did put the fence up and they do have the pines in there. Mr. Livermore One of the buildings is 21.6 feet from the line. Mr. Harter What is the prior use of the property, what was it previously being used as? Mr. Livermore He built interior stud walls for drywall. Metal prefab walls. Finger Lakes Drywall was the company. Chairman Maier At the last meeting he stated there was vehicular traffic in and out of that property fairly consistently.

5 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Livermore Right, they had trucks late at night. They were getting in at ll:00, 12 o clock at night. Mr. Harter Do you propose any alterations to the site or are you just trying to use it as is? Mr. Livermore The site is the same. It s going to be a lease. Mr. Harter OK, so you are just leasing it out? Mr. Livermore With the intention to purchase. Mr. Harter So Al, there isn t a site plan review required, is that correct? Mr. Benedict It calls for a change of use. Mr. Harter At the Planning Board? (Yes) Will they potentially put any landscaping requirements on it or anything like that in place? Mr. Benedict I can t speak for them but the Planning Board could make specific requirements to do so. Mr. Harter So the basic proposal is to just leave everything as is, use it as is. Mr. Nearpass I asked quite a few questions last time. I d like to ultimately hear if the residents have anything to say for or against it. I don t think we had anybody. We answered several questions last time about it. My concern mainly was with how close it is and having the trucks going in and out of there at night at that type of rate. I m not sure what you are really going to be able to do to dampen that. I know there is the fence there. Any additional buffer that would be required would have to be into the paved area. Also when you compare that map that you provided, of where you are currently and obviously the new location. Maybe it s just how I m seeing it but one looks a lot bigger than the other. Currently you show several tractor trailers just parked out back and even when I took a drive by this lot I still couldn t envision that number of tractor trailers parked out there. It just seemed so much smaller. I didn t go to the Manchester site though. Mr. Livermore Manchester is 2.6 acres, believe it or not, and Victor is 3 acres. Chairman Maier And the size of the dwelling you are in right now in Manchester is how many square feet?

6 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Livermore That s just part of the building. The whole building is 40.. Chairman Maier No, just roughly your part. Mr. Livermore Roughly 6,000 square feet. Chairman Maier And this building here, on Plastermill, is approximately how many square feet? Mr. Livermore 5,874 square feet. Chairman Maier So they are comparable. Mr. Reinhardt Since we are on the topic of Manchester, in my opinion you ve got to throw that right out because the characteristics of whatever it is, however it is that occurs in Manchester is different than Victor. They are different animals. To say then that the characteristic of the neighborhood is not going to change because of how and when you conducted business in Manchester is an apple and an orange to me. What I need to know, and more so for those people who weren t here last time, is for you to review for us - let s start with the hours of operation. What do you plan on doing for your hours of operation? Mr. Livermore We currently run 8 5. Mr. Reinhardt OK, and then there was some emergency service for those occurrences when you might have to bring a tractor trailer to the site. How often did you say that that was going to occur in the course of a year? Mr. Livermore We go out after hours to the customer site. Mr. Reinhardt Let me try again. If I understood you correctly the last time, there were occurrences when either the client or something to do with the vehicle, that you had to bring the vehicle back to the site. It was a few times and I asked you to quantify it and qualify it as to when, how often, in the course of the year. I understood you as somewhere in the neighborhood of two to five times a year. Is that right? Mr. Livermore Correct. Mr. Reinhardt And then there were times when you would have to take you service trucks, go to the site and pick up some of the tools that you needed and then off to wherever the tractor trailer is so that you can work on it. (Correct) On those occasions when you either had to get the

7 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, service truck or had to go to the site at your place of business, it could occur seven days a week after hours. (Correct). OK, and it could be nine o clock at night, it could be 12 o clock at night, it could be 3 a.m. in the morning. It s whenever the emergency is you might have to go to your place of business and get the service truck, or get some tools that you needed, and then go off to wherever the disabled vehicle is. (Correct) That was more so for those that weren t here. The other comment I would like to make is that I don t think there is any question if this same type of business, or close or similar type of business, was to start operating there again, I don t think we would be having this though discussion, but your type of business is different from aluminum studs, dry walling, you are going to be doing different things. To me there is more a character of the neighborhood element that goes in to play than while that drywall place was in operation, if I understood it right, that there were occasions that people, trucks, things were there after hours. I take it into account then that the development, Morgan Management, moved to where this commercial area was. I think this buffer area is important. I think the discussion we need to have is who is going to put it in there, but that buffer I think needs to be there. That s all I have for now. Chairman Maier Let me read Ontario County s comments. The Board recommends the referring Board to encourage the applicant to install a green buffer along the eastern parcel boundary to ensure that noise and sight appearance are mitigated. That s pretty much what they said. Al, a couple of questions for you. What is approved for the operating hours in this district? I can t remember, I think it was 8-7. Mr. Livermore It s 7-7. Saturday 7-5 and Sunday none. Mr. Benedict 7-7 Monday through Friday, 7-6 on Saturdays. Chairman Maier So that s the useage they are going to the Planning Board for. If the Planning Board approves it, those would be the hours of operation. Mr. Benedict Those are the hours that are defined in the Code. Chairman Maier Would the Planning Board have the option of issuing a special use permit for this? Mr. Benedict Sure. Chairman Maier OK, so they could issue you a special use permit and put restrictions based on that also. Which means that if there is any noise, issues related to this application, they would have to come back in to the Planning Board to review the restrictions that were placed under the

8 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, special use permit. It s an option and I believe we can make that referral if we wanted to if that s a concern for the Board. The other thing we talked to you about, and we asked the question at the last meeting, was we can grant a variance for the hours of operation also. I think that you indicated that you are OK with these hours as defined in the Code. Mr. Livermore Yes. Chairman Maier The public hearing is open and I ll open it up if anyone has any comments for or against the application. Councilman Dan Crowley addressed the Board. Councilman Dan Crowley Tractor trailers, how are you going to get them in and out of this property? I live across the street. Mr. Reinhardt That shouldn t happen, I m sorry. The questions are for the Board. Councilman Crowley OK. When Route 96 was shut down a few years ago for the main bridge, any tractor trailers coming down MacMahon Road and going Plastermill to Route 96 were ticketed; not allowed. That s why they were sent up to County Road 41 and across and down. So my question is how much tractor trailer traffic is going to be going through our neighborhood and how is it getting into this site? Chairman Maier You can answer but it is my understanding that you don t have any tractor trailers. Livermore Just customers. Chairman Maier Customer s tractor trailers. And you defined the type of business you have and I believe you indicated, I haven t had a chance to look at the minutes, that there is a percentage of your work that is off site. Maybe you want to review how the business is operated. Mr. Livermore Most of our business, 75 % is off site. We go to the broken customers place, wherever the tractor trailer is broken down and fix it. 25% we bring to the shop. To answer the question, I would have them come from State Route 332 because that is weight restricted with local hauling and the other way is weight restricted period. We work currently, in Manchester, on a five ton road. The trucks have to come in where we are; that s it. They can t go farther down the road, they d bring power lines and trees down. That s work.

9 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Reinhardt It sounds like there is a double edged question here. One is, is a truck permitted on that road and what if anything can we do about it. That s a vehicle and traffic problem and I think that is under the enforcement of the County Sheriff or the State Police. So if that truck shouldn t be on the road pursuant to vehicle and traffic law, that s not our purview. That s something that a neighbor could send a message to the Sheriff s office. Chairman Maier But you are concerned about heavy vehicle traffic on the road. Is there a five ton limit on Plastermill? Councilman Crowley I m not sure Plastermill coming off of 332 and then looping around to Plastermill, what that is. I know MacMahon is not allowed. Across the bridge going Plastermill to Route 96 is not allowed. It is weight restricted across the bridge. Mr. Livermore It s basically one way in to Plastermill and I believe it s a nine ton road with local only. Chairman Maier What kind of trucks do you have? Mr. Livermore We have medium duty Ford vans. About 1,400 pounds, seven tons. Mr. Nearpass So if I look at the satellite photo you submitted for your current location, there are about eight tractor trailers in the parking lot. Is that generally what your parking lot looks like? Mr. Livermore In the back corner there are three storage trailers that have my tire inventory and wheel inventory outside of the building. It s not law to have tires not stored in a building but if there is ever a fire, a tire fire is bad. So they are in a storage trailer for that reason. Mr. Nearpass That s one of them. Mr. Livermore There are two. The other one is miscellaneous tools for our service trucks. Mr. Nearpass I count eight tractor trailers. Mr. Livermore came up to the dias and pointed out the three tractor-trailers that were his for storage. Mr. Livermore I believe there is a gentleman that parks his truck there that has an agreement with the landlord. These would probably be customers and if they are parked there they are probably done and ready for pick-up.

10 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Nearpass These three will be storage on premises. (Yes) Al, is that something that is allowed. Mr. Benedict It is something that will be reviewed by the Planning Board. I don t think there is anything that restricts it. Chairman Maier Just a quick question, I am assuming these truck drivers want to get back on the road as quickly as possible which is why you go out into the field to repair them when you can. When you can t they have to be pulled back to the shop and repaired. What s the average turnaround time? Unless you are missing a part or waiting for a part or something. Mr. Livermore Pretty much it s immediate. I mean there are not a lot of projects that we bring into the shop and have them for weeks at a time. Chairman Maier If there is an accident do you deal with that or does that go someplace else? Mr. Livermore That s not for our facility to do something like that. We do like 3.3 jobs a week in the shop. That s what it works out to be if I did the math right with stuff that is just brought into the shop. The rest are service calls, like I mentioned the last time. To date we ve done 900 service calls. Last year we did 1,631 service calls off site. Mr. Livermore We have six guys. Chairman Maier Dan before I close the public hearing, are you for or against the application or indifferent? Councilman Crowley I don t pretend to speak for all the residents in Gypsum Mills but I know it s a concerned. They will be concerned with having tractor trailer traffic on Plastermill period. But, I d like to have an answer from somebody about whether or not tractor trailers can indeed come off of Route 332 to get to your shop. Mr. Livermore I believe with the wording on the sign of local only. From the other direction, no. Those are weight restricted. Councilman Crowley I ll check it out and if there is I ll bring them back to this Board. Chairman Maier Thanks, Dan or to the Planning Board.

11 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Councilman Crowley I ve known Rudy for a long time and wish him well, but those are my only concerns. Chairman Maier I m going to close the public hearing. The question about the buffer, and I will pull the Board in a minutes, I think the requirement to put a buffer in, a 30 foot buffer, when it was waived in 2006 for the applicant Morgan Management, it s pretty expensive. That s an expensive proposition to put in a 30 foot buffer. Mr. Nearpass Was it waived or reduced? I thought it was reduced from 100 feet to 30 feet. Chairman Maier This is my understanding, it s Morgan Management that had the buffer reduced. It appears to me that the buffer has been reduced significantly from 100 to as I said normally the applicant, whoever is developing the property, has the responsibility of putting the buffer in. Mr. Nearpass You wouldn t be able to call the fence the buffer, or some of the trees? Chairman Maier So normally if there were 100 foot buffer between two districts, Morgan Development would have had to put a 100 foot buffer in. Again it s a visual buffer and a noise buffer. Apparently for whatever reason, Al correct me if I m wrong, I think everyone was in agreement to reduce the buffer. I believe the current owner, if I have my names correct, had requested a 30 foot buffer, or said he was OK with a 30 foot buffer. Mr. Benedict When you read through the Code it says when you have two projects, one being in one zone and one being in the other, in this case commercial-light industrial, if it s to a residential district, it s supposed to be 100 feet buffer. If it s to any other district it s pretty vague. The Morgan property was a multiple dwelling district, it was not a residential district although it was residential use, in that case the buffer would be 30 feet. Chairman Maier It appears as though we don t have a 30 foot buffer (right) that would indicate that at some point in time somebody allowed it to be minimized. Mr. Benedict Keep in mind that this is for new projects. In this case you have Morgan s apartments coming in. Really there is no requirement for them to provide a buffer. I think the reason for going to the Boards for approvals is if the Kumpf site or this site ever came forward and wanted to be totally revamped, they would be excused from that 30 foot buffer. Chairman Maier Which they are not asking to be revamped, so we have a pre-existing condition. The question for the Board is, it s been there for how many years, a long time.

12 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Benedict Since I ve been here. Chairman Maier It s been there for a long time. The question is do we want to make a requirement. My guess is that it s fairly expensive for them to put a whole 30 foot buffer along that whole east side or any kind of buffer. You ve got to tear up the pavement, plant, I think it s fairly excessive. I think the question is do we want to require a 30 foot buffer? Do we want to require a buffer? Do we want to put on other conditions such as lighting, if lighting is replaced or that it be dark sky compliant? The other one is do we want to make a referral to the Planning Board, even though the applicant has indicated that he plans on operating within the hours that are approved for that district, a special use permit? Mr. Reinhardt What concerns me is a bit of the unknown with what is going to happen after hours. The neighborhoods are right there. The other is there are two other commercial properties right there with things that make noise, to keep it really general. So, I m leaning more towards the idea of a special use permit. It would give this Board more comfort and the Town more comfort in putting a reasonable fence around your operation, not literally, but more so on the hours of operation. What does it look like, because you can tell me all day long that the emergencies of bringing in a semi is a couple of times a year, but if it turns out to be ten times, twelve times, and we re hearing from the neighbors that we see these trucks coming up and down the road all the time, we re a bit powerless if we granted the variance. With a special use permit I think we have a better ability to keep a check on it. Chairman Maier How about the buffer Mike? Mr. Reinhardt I hear you that it s going to really expensive. It s been there, it s existed, operations have been there. I haven t heard anything from anybody in that neighborhood that says it s loud and we need a buffer there. Chairman Maier The sign has been up for a month. Mr. Reinhardt I think I would be easier on that than on the hours of operation. Mr. Nearpass I agree with Mike on both. I d recommend a special use permit as well. I d leave the site untouched. Mr. Harter As far as the special use permit goes does that mean it s up the Planning Board to apply a buffer or any of these other things. Chairman Maier Normally special use permits put conditions on. Basically if complaints come in from the residents it gives the Planning Board the opportunity to bring you back in and say

13 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, look this is what we agreed to. It s a check and balance for the Town. So if you re doing everything the way that you said you were it shouldn t be an issue. It s not really that cumbersome. I can t see that the Planning Board would put any significant restrictions on. It gives them an opportunity if the noise is really bad and there are too many complaints you come back in to the Planning Board and they say what do we do to fix this. Is that acceptable? (Yes) Mr. Harter At present the site has been used in a similar capacity than what is being proposed it seems to me. If this site is redeveloped, someone purchases it and another business goes in these variances will be running with that land correct. Mr. Benedict Yes. Mr. Harter I just wondered under a new build scenario do we want to consider that the variances go away, a sunset provision or anything like that, or is that beyond the scope of what we are trying to do here. Mr. Reinhardt We won t have to worry about a variance running with the land because what he ll be is, he ll have a certain set of parameters that he ll have to live with and then reviewed. If he is keeping in step, if you will, then there shouldn t be any reason why that special use permit can keep going. Mr. Nearpass What about this 1,000 foot buffer. Chairman Maier We still have to do the setback variances. Ms. Morley I m in agreement with Mike. Mr. Crowley I will pull our neighborhood soon. Any concerns, I ll let you know. Chairman Maier We re going to make a recommendation that you submit an application to the Planning Board for a special use permit relative to this operation. Whether or not they want to put any conditions on it is up to them. That will be a condition of approval. What else do we have, we just have the lighting. Mr. Nearpass Do we even need the lighting, isn t that just Code? Chairman Maier It s up to you guys as a condition of approval. Mr. Harter I think any new lighting that is installed should be dark sky compliant.

14 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Chairman Maier Do you want to make it a condition? The consensus of the Board was no. Mr. Nearpass On the 30 foot buffer we can make the recommendation to the Planning Board that no buffer will be required. It is our recommendation that no buffer be required, because I think they were asking for our opinion. Chairman Maier No, the Ontario County Planning Board wanted a 30 foot buffer. Mr. Nearpass I thought our Planning Board wanted a recommendation. Chairman Maier No. Mr. Reinhardt A buffer currently exists. I don t want a misunderstanding or a misinterpretation that that buffer can be ripped. Whatever is currently existing Chairman Maier Right, it s on the other property. That buffer is on the other property. The Chairman read the resolution. RESOLUTION: WHEREAS, an application was received by the Secretary of the Zoning Board of Appeals on September 18, 2017 from Chris Livermore of CL Enterprises, 28 Center Street, Manchester, NY proposing to operate a truck & trailer repair service in the existing building at 6415 Plastermill Road, whereas, A(7)[3][b]states the facility shall be at least 1,000 feet from the boundary of a residentially zoned district while the lot south is residentially zoned and A(7)[3][c] states the facility must be at least 500 feet from any off-site structures of a residential use; and, WHEREAS, said application was referred by Al Benedict, Code Enforcement Officer of the Town of Victor on the basis of the variance requested to the Town of Victor Code; and, WHEREAS, a Public Hearing was duly called for and was published in "The Daily Messenger" on September 24, 2017 and whereby all property owners within 500 feet of the application were notified by U. S. Mail; and, WHEREAS, this application is classified as a Type II action under the State Environmental Quality Review Act and therefore does not require further action; and,

15 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, WHEREAS, the Ontario County Planning Board referred the application back to the Town of Victor Zoning Board of Appeals on October 11, 2017 assigning the referral, , as a Class 1 with comments; and, WHEREAS, Public Hearings were held on October 2, 2017 and October 16, 2017 at which time two residents had questions and concerns and no resident spoke for or against the application. A letter of recommendation was received by the Village of Manchester, site of CL Enterprises current business, and signed by three Manchester neighbors; and, WHEREAS, after reviewing the file, the testimony given at the Public Hearing and after due deliberation, the Town of Victor Zoning Board of Appeals made the following findings of fact to allow the operation of a truck and trailer repair service at 6415 Plastermill Road, Victor, NY 14564: 1. An undesirable change would not be produced in the character of the neighborhood or a detriment to nearby properties created by the granting of the area variance. Justification: There are no changes being made to the existing property. 2. The benefit sought by the applicant cannot be achieved by some method, feasible for the applicant to pursue, other than an area variance. Justification: Again, the property is already developed and this coincides with what has already been developed and the setbacks that are already in place. 3. The requested area variance is not substantial. Justification: The building is preexisting on the property and no changes are being made to the property. 4. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Justification: Again, it is a preexisting building and property and there is buffering between the site and the multiple dwelling district to the east. 5. The alleged difficulty is not self-created. This consideration is relevant to the decision of the board, but shall not necessarily preclude the granting of the area variance. On motion made by Keith Maier and seconded by Scott Harter:

16 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, DECISION: NOW, THEREFORE BE IT RESOLVED that the application of Chris Livermore of CL Enterprises, 28 Center Street, Manchester, NY proposing to operate a truck & trailer repair service in the existing building at 6415 Plastermill Road, whereas, A(7)[3][b]states the facility shall be at least 1,000 feet from the boundary of a residentially zoned district and A(7)[3][c] states the facility must be at least 500 feet from any off-site structures of a residential use BE APPROVED with the following condition: 1. The applicant shall apply to the Town of Victor Planning Board for a Special Use Permit and the recommendation from this Board is that any buffering to the east or other adjacent properties is not required. This resolution was put to a vote with the following results: Keith Maier Scott Harter Michael Reinhardt Donna Morley Mathew Nearpass Aye Aye Aye Aye Aye Adopted: 5 Ayes, 0 Nays PUBLIC HEARINGS 1. VICTOR HEIGHTS CORP PARK Victor Heights Parkway 21-Z-2017 Applicant is requesting approval to subdivide acres into two lots, both have existing buildings on them. Lot R-6A1 requires one variance for the rear lot line parking setback per A(2) ](d)[1][b] and Lot R-6A2 requires two area variances; one for the side Parking setback, again per A(2) ](d)[1][b] and one for the building front setback per Schedule II, Area and Height requirements which requires 80 feet whereas the actual setback is 39.2 feet. The Chairman opened the public hearing and the secretary read the legal notice as it was published in The Daily Messenger on October 6, 2017.

17 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Michael Montalto of Costich Engineering, 217 Lake Avenue, Rochester, NY addressed the Board. Mr. Montalto I m here this evening on behalf of the owners of the property, Sabal Financial Group, and the tentative purchasers New Scale Technologies. They are looking to purchase the building at 121 Victor Heights Parkway, which is what has actually prompted this application. They are the current tenant of the building and they are looking to purchase it. There are two existing buildings currently on the site and we basically would like to put a line down the map and create two parcels. There is no physical change associated to the property or associated with this application. The carving out of an approximately 2.03 acre lot for #121 and the remaining lot is a 1.06 acre lot in the northern portion of the property, lot #118. Again, there is no physical alteration of the site. The area variances, one is a nonconforming existing condition which is on the northern lot, lot R-62A where there has been some paving added on the eastern edge. We are looking for an 8.9 foot setback, whereas it s supposed to be a ten foot pavement setback. It is also important to note that that is right next to a dumpster enclosure that already has a setback in the same order of magnitude. It looks like they put pavement down at some point subsequent to any applications in which they went to the Boards. The other variance is on the south side by creating a lot, the line through the middle that now creates a setback at the front building of 89.2 feet versus 80, again that s subjective because of the fact that we are drawing a line. There is no movement of buildings. By drawing a line through the middle of the parking area, that creates a zero foot setback. To make sure I spoke correctly, on the southern lot, Al, there is one area variance and that s the rear setback which is zero. That s the property that is being purchased by New Scale Technologies, the existing tenant. They have been operating for a number of years. Instead of leasing they want to purchase the building. They don t want to purchase the entire property and be in the property management business. The northern parcel that gets created that has the front building setback created, it s 39.2 feet versus 80 feet and that s because we drew the line. It has a nonconforming issue toward the eastern boundary where they have the pavement approximately at nine feet clearance where it s supposed to be ten. We did appear before Ontario County Planning and they looked at it and discussed it and basically referred it back to you as a local project with comments. We have the application for the Planning Board for subdivision approval should we be able to move forward from an area variance standpoint. From a burden of proof standard standpoint there is no physical change to the site. Not only is there no physical change, but 110 is already in there now. There is no physical change, no operational change, and no change in use. It s not that the building is being bought by somebody else and inaudible. It s the same scenario, the lessee is now looking to purchase, they don t want to purchase the entire property, they only want to purchase a portion of it. We did discuss and it s in our letter of intent and it would be a condition of our subdivision as well, that there be a reciprocal easement between the two properties so that utilities, shared parking, all that stuff should operate. One of the reasons for that as well is for them not to further intensify the development of either lot by saying there are more parking spaces on one versus the other.

18 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, If it can be achieved by another feasible manner? Now the site is fairly well built. Again, there are no physical changes taking place whatsoever with the area variance request. Whether or not they are substantial? Numerically you could say that zero versus ten is large but from the standpoint that there is no physical change that is associated with the granting of the area variances we don t believe that they are substantial. Adverse effect on the physical or environmental conditions? Again, it s a line drawn through the center of the parking lot with reciprocal easement between the two properties with no physical change. Is it self-created? From the standpoint of they are trying to purchase the property, yes. They want to stay where they are at and they don t want to end of owning another building and doing property maintenance and worrying about things that the people in California have been managing. Inaudible. Ms. Morley When this property is sold there will be an easement through this property to get to the other property? Mr. Montalto Yes. What they typically do now is what they call a reciprocal easement agreement. It discusses shared parking; access; utilities; and sometimes they go as far as discussing the common parking area and the maintenance of it. All that is done so it takes it out of a Town issue. Ms. Morley Is this the only property owned by this company or do they own to the left and right? Mr. Montalto The people who are looking to purchase? Ms. Morley No, the people who are selling it right now, do they own any of the other properties on either side? Bob Marvin of Realty Performance Advisors addressed the Board. Mr. Marvin - They actually own 111 Victor Heights Parkway and they own 50 Victor Heights Parkway. They own 115, 117, 119, and 121 Victor Heights Parkway. Chairman Maier So basically the whole portfolio was purchased by Sabal? Mr. Marvin They essentially financed it and they are taking the property back. Chairman Maier So they own a large portfolio of properties. (Correct) Mr. Harter I don t think I have any questions, I think I understand the purpose of the variance request. In this particular situation where you are drawing a property line, as you are, the variances are the byproduct of the property line. That s just the way it goes. When I look at it and I ask how you mitigate the variance, I don t see a way to do that. Once again I think it s a byproduct of conveying this piece of property. It contains what you need it to contain. I don t have any questions.

19 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Nearpass I have a question regarding signage. How will the property in the back, that s 121, is there a monument sign out front? Are we going to have one of these situations where one property is going to have to put a sign on another property? Mr. Montalto I ll let Bob answer you because my comment would be it s just how they operate today, but I m not certain. Mr. Nearpass If you need a variance for it, you may as well ask for it now. Mr. Marvin The property in back is 119, that s the old Christa Offices. The front is 121. There is actually a directory sign up front that has both addresses on it and their name. Mr. Nearpass So nothing else is going to be required? (No) Mr. Reinhardt So let me understand this. The current owner owns 121 and 119, right? (Yes) The part I m stuck on is the current tenants of 119 don t want to lease anymore, they want to buy it? What was driving the train on buying this piece of property? Mr. Marvin The tenant at 121 essentially is looking to purchase that front building. The rear building, 119, it s vacant right now. We actually are marketing that property to lease it. That s the old Christa Construction office building. Chairman Maier So basically Sabal got stuck with some properties and they are trying to do what they can with them. Mr. Marvin Essentially stabilize them; dispose of them and hold them if need be. Essentially we re trying to market them properly. Mr. Reinhardt So 119 is currently vacant? Mr. Marvin That s correct. Mr. Reinhardt How long has it been vacant? Mr. Marvin Christa has been out of there I think for about, I want to say seven or eight months. Mr. Reinhardt Of all the properties Sabal has, what s the longest period of time that there has been vacancies? Mr. Marvin I believe that s the only one other than some smaller spaces. There is one in 121, it s actually being used as storage, around the front, to the right of New Scale. Then they just have 50 Victor Heights Parkway. The tenant just moved out. That s under contract; that will be closed in the next couple of months. So it s owner occupied. The majority of them, a high percent are leases.

20 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Reinhardt What s your anticipation if you go back to 121 and say you know what, we swung the bat, we couldn t get it, we can t split the property? Mr. Marvin I think that they would possibly look elsewhere and they have been there for over a decade. Mr. Reinhardt More than 15,000 square feet, a company is going to move because they don t want to lease anymore? Mr. Marvin That s a possibility. Mr. Reinhardt What bothers me is that you are drawing a line between two pieces of property, land-locking it, and you re keeping your fingers crossed that everyone is going to hold hands on a permanent easement that allows people to drive back and forth. Sometimes the marriages don t last very long, especially on the back end of the property because they are not happy any more. Mr. Montalto That s why there is the reciprocal easement. This in commercial real estate is becoming a more common practice. We ve got lending institutions where when an outparcel gets developed it has to have, you know, banks don t want somebody else s construction loan encumbered by, it s a model of banking. It s becoming far more common. That s why the reciprocal agreement because it can t be by a handshake. There has to be an REA that goes with the property so that if anybody looks to purchase it or is interested, it s part of title. It says there is an REA that covers these properties and this is how access, utilities, and all the rest of it. So what s incumbent is that before anyone signs off on the subdivision map this is something that would be discussed typically at the Planning Board is before that mylar gets signed by the Town there has to be proof that there is an REA (Reciprocal Easement Agreement) that has been filed. Mr. Reinhardt I d like to ask Al, are there any other commercial properties in Victor that have a reciprocal easement that has one commercial property land-locked such as the one being proposed? Mr. Benedict I have to do some research I think. Mr. Reinhardt It seems like it s a strange animal and it s a matter of convenience because you are afraid of losing a tenant. It s not the normal thing that we see here. If someone really wants to do something with the property and it s a smaller ask. This is a pretty big ask to divide a piece of property in half and land-lock it and hope that that reciprocal easement is going to hold. Chairman Maier I think we have a couple Mike. I think we have one by Panera Bread. Isn t that in the back an easement that allows them to utilize that access road? Then we have the other one on Mr. Benedict There is an easement that allows them to use Chairman Maier Then there was the other one where they had the repair area, where he didn t get along with the person in the front so we granted the access.

21 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Damico That was me. Chairman Maier What a memory. That s just two that I am aware of. Mr. Reinhardt I think the first one you were talking about there is an entryway, there s a light. Mr. Nearpass You can get in, but you can t get out. Chairman Maier Right, but there was an agreement with Wide Waters to access. I m sure there are probably a lot more but it is becoming fairly common. What happens is you have some properties where they want to build on the property. Rather than leasing, they want to build on the property, so you might have three buildings that are leased and then one where the company wants to come in and buy it because it s a specialized building, so there are agreements with that. I don t know in Victor how many there are. Certainly with roads in the country, there are a lot of private roads with access easements that go along with Mr. Reinhardt I ll keep an open mind, but I think you can tell for now that I m really not feeling warm and fuzzy about this. Persuade me in another direction and I ll listen. It s drawing a line and land-locking because you are afraid of losing a tenant. We ve seen nothing from the tenant that says we re moving. Mr. Montalto I hesitate to tell you about other Towns because that is never necessarily good. I can tell you within Monroe County, our office, from a commercial client and a plaza owner s standpoint, have done an awful lot of this. A lot of the plazas you are seeing are being redeveloped that are having out parcels, and restaurant parcels and stuff like that, it s still a landlocked situation where you don t have roadway frontage and all the rest of it. Supermarket chains, Tops has turned around and drawn lines around because there are millions of dollars associated with their loan. All the other people in the building don t want to be tied to that because of default. A lot of this has really been in the past couple of years has been driven by what s going on in the banking standpoint. When they turn around, and are even looking at the lease agreements and purchase agreements, when there is a common ownership like that, what one guy is doing in his building and his financial stuff, affects what s going on in the other. We are seeing more and more cases of where you do exactly this, when there are two buildings and you do have to pay cause. That s why you have to look at it and say wait what happens if the use changes etc. That s where here we re not looking at it and saying we re deficient in parking spaces, we don t have the ability to serve this or the other, the list of variances that are being asked for here are associated with where that line is drawn while sharing the drive access from the parking standpoint. Then how the Code is interpreted as to what is the front now, really just because of the way the buildings are sited. Even from our standpoint, being in the industry for a number of years, you look at that and say, OK, what is to keep? It is becoming a more common practice, unfortunately driven from the banking world and has become far more popular as a result of stuff that goes on in the banking world and inaudible.

22 TOWN OF VICTOR ZONING BOARD OF APPEALS October 16, Mr. Reinhardt To comment on your comment what goes on with our neighbor in Monroe County is Monroe County s business. You re talking about a character of the neighborhood. Whatever Monroe County wants to do, they certainly can do that. So, we re not in Kansas. We are in Ontario County, we are in Victor, so what I asked Al was what is going on here in Victor pursuant and how it looked to the character of the neighborhood is very relevant. What goes on in Penfield and Webster really isn t. Mr. Montalto Then I will bring that back to there are no physical changes associated, so there is no change. Mr. Benedict I ll just throw in that the Code doesn t require any frontage on a road in a light industrial district. Mr. Reinhardt Good to know. Mr. Harter I would just add, based on my experience in Victor, and Monroe County, that what is stated here is correct. It is certainly a way of achieving access properly in area where you don t have to have frontages. It s nothing out of the norm. Chairman Maier Al, the Town attorney will look at the easements prior to the signing off. So a condition of the approval would be the Town Attorney reviewing all the easements? Mr. Benedict I would anticipate that the Planning Board in their resolutions would require easements to be written and shown proof of which the Town Attorney would review and usually Kim will verify that they have been filed before Chairman Maier Before anything is signed, OK. The Planning Board will most likely look at parking if there are any parking issues. Does anyone have anything else? Mr. Harter I just have one other question. Is what we see here, the drawing as it is shown, is that the way it was originally supposed to be built? In other words do we have anything greater than what was originally proposed? Any development creep? Mr. Benedict There is a little piece of pavement Chairman Maier The dumpster pavement? (Yes) Mr. Benedict Other than that, the building, pavements, is what has been approved on a previous site plan. Chairman Maier It is a public hearing, I ll open it up to the public if anyone has any comments for or against, concerns? Jerry Watkins from Riedman Company, addressed the Board.

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