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Zoning Board of Appeals August 6, 2020 Minutes

Chair Douglas Purcell opened the public hearing at 7:00pm.

Members of the public in attendance: Fred Franko (Hyman Hayes Associates, LLC), Robert Britton (Director of Engineering, Nathan Littauer Hospital).

Chair Douglas Purcell: With it being 7:00pm, I am going to open tonight’s meeting of the Zoning Board of Appeals. This meeting is being conducted as a tele-conference in compliance with NY governor Andrew Cuomo's Executive Order of March 12, 2020, number 202.1, and extended through September 4 with Executive Order 202.55. James [McMartin Long, Clerk], if you would call the roll, please?

Roll call:

Chair Douglas Purcell: here

Kenneth Coirin: here

Frank Malagisi: here

Kathleen Ellerby: here

John Byrnes: here

Clerk James McMartin Long: Quorum.

Chair Douglas Purcell asked if there are any changes or additions to the meeting minutes of June 24, 2020?

Chair Douglas Purcell said, hearing none, he asked for a motion to accept the minutes as published.

Motion: Ken Coirin moved to accept the minutes as published. Kathleen Ellerby seconded the motion. All board members were in favor. None opposed.

Chair Douglas Purcell said tonight’s meeting was to reopen the application Z2020-05, by Nathan Littauer Hospital for the property at 1840 State Highway 10 and now identified as parcel 68.9-3-2.5. He said the public session was held previously on June 24, 2020. He said that in closed session the application was reviewed for completeness and the application was tabled pending the review by the Fulton County Planning Board in accordance with General Municipal Law section 239-m and for a referral for comment by the Town of Caroga Planning Board. He said the applicant proposes to build a new 1,350 square foot “Micro clinic” adjacent to the Caroga Town Hall to replace the Nathan Littauer Hospital clinic currently located inside the town hall. At issue are prohibited use and front and side yard setbacks. He said the ZBA Clerk has posted the letter from Fulton County Planning Board. He said he would go over the results of both referrals. He said Fulton County Planning Board met on July 21, 2020 and their review, in accordance with section 239-m review, they recognized no regional implications that could occur from this proposed action and they offered no recommendation regarding this Use Variance application. He said the Town of Caroga Planning Board met on July 1, 2020 to discuss the ZBA application. He said Chair Al Kozakiewicz said the Use Table was created de novo and the the uses authorized in the Conservation District were correct and, moreover, the zoning as Conservation District, given the parcels on the north and south sides being Caroga Hamlet, may have been an oversight. He said the Planning Board said it would review rezoning the parcel. He said the July 8, 2020 meeting of the Caroga Town Board, they resolved to hold a public hearing to rezone the parcel. He said one might ask why the need for the meeting tonight, given this background. He said that in as much as the ZBA has sixty-two days from the time of public hearing to render a decision, he wanted a decision by the ZBA to be on record should no final action be taken by the Town Board. He said the sixty-two days would expire by the time of the September meeting. He said that even though we’ve had the open meeting, he would give those present one final opportunity to speak before the board returns to closed session to discuss the application. He asked Fred Franko and Robert Britton if they had anything they wanted to add.

Fred Franko said change in Use Variance and Area Variance were minor. He claimed the Use Variance doesn’t present a great problem in terms of the ZBA allowing the use permitted. He said the Town Board was likely going to change the zoning anyway. He said, given that you don’t know for sure what the Town Board would do, he would like to receive the Use Variance and Area Variance. He claimed there was a detriment that prevented a reasonable [financial] return on the property. He claimed the property had very limited uses under Conservation district zoning. He said there was a financial detriment in having to alter the address of the building. He feels this is an appropriate use and a benefit to the town. He said it is not detrimental to the neighborhood. He reiterated that he wanted to get the variances in place in case things fall through with the Town Board.

Chair Douglas Purcell asked Robert Britton if he had anything he wanted to add.

Robert Britton said all he wanted to say was that NLH really wanted to get this in the ground before winter hits.

Chair Douglas Purcell asked the Clerk if there were any additional correspondences.

Clerk James McMartin Long said there were none.

Chair Douglas Purcell closed the public portion. He said the ZBA needed to consider and rule on the Use Variance first, because it is not possible to grant an Area Variance for a prohibited use. He asked Kenneth Coirin if he had anything he wanted to add or if he had any questions.

Kenneth Coirin said he was pretty clear on what the board had before it.

Chair Douglas Purcell asked Frank Malagisi the same.

Frank Malagisi said he was satisfied.

Chair Douglas Purcell asked the same of Kathleen Ellerby.

Kathleen Ellerby said she had no questions.

Chair Douglas Purcell asked the same of John Byrnes.

John Byrnes said he had no questions.

Chair Douglas Purcell said he had some comments about what Fred Franko talked about. He said it is not duty of the ZBA to make corrections to oversights of the Planning Board. He said that should the ZBA grant a Use Variance in a Conservation district, we would open up and be setting a precedent for the same kind of thing to be done on all the properties that are zoned as Conservation district. He said, with regard to the return on investment, one of the allowed uses in Conservation district is a golf course, including a pro shop. He said one of the actions discussed by the Town Board was to move the pro shop to this parcel. He said that would give the town the return on the investment that the town would need. Finally, he recognized that Nathan Littauer is acting as the applicant, however, the owner of the property is the Town of Caroga. He said the Town should be, for the Use Variance portion of the application, the applicant of record. He said that’s why he asked the Town why it need to have this Use Variance approved in order to have the proper return on the investment. He said that unless any board member had anything else they wanted to add, he wanted to go through the items required for a Use Variance.

Fred Franko interjected that the definitions for the applicant as to who could appeal included the owner, prospective buyers, long-term lease with the owner. He said technically Nathan Littauer can act as the applicant as far as defining a reasonable return.

Chair Douglas Purcell responded by reading from the Zoning Ordinance and all items required executed contracts or executed leases. He said he hadn’t heard there was a lease.

Fred Franko said they’ve got it worked out, way, way in process, 99.9% of the way down the road to the lease agreement and everything else.

Robert Britton interjected NLH is putting together a lease. He said they were in a “Catch 22”.

Chair Douglas Purcell said, given no further questions, he would go through the criteria for a Use Variance.

“1. That applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;”

Chair Douglas Purcell queried Kenneth Coirin.

Kenneth Coirin has questions about who the applicant should be.

Frank Malagisi agreed.

Kathleen Ellerby agreed.

John Byrnes said that it was not undo hardship on Nathan Littauer.

Chair Douglas Purcell said it had not been demonstrated that there can not be a return on the investment by the Town, given that there is no lease in place. He said the Town could lease out the property for manufacturing under the Conservation district zoning.

“2. That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;”

Kenneth Coirin said he is undecided.

Frank Malagisi said everybody is in favor of Nathan Littauer staying but we all want to do it the right way.

Chair Douglas Purcell said he agreed with that statement.

Frank Malagisi said we needed to grab the bull by the horns and say that the way its been presented to us today is that we can’t accept it. He said we should fix the mistakes first and do it properly.

Chair Douglas Purcell said Frank Malagisi’s words were well-said.

Kathleen Ellerby said we’d like NLH to be there, but there’s too many “ifs” in play still.

John Byrnes said he was in favor of the whole building, but agreed there’s a lot of “ifs”.

Chair Douglas Purcell noted that the bulk of the Town owned lands are zoned Conservation district.

“3. That the requested use variance, if granted, will not alter the essential character of the neighborhood;”

Chair Douglas Purcell said it wouldn’t alter the neighborhood.

Kenneth Coirin, Frank Malagisi, Kathleen Ellerby, and John Byrnes all agreed.

“4. That the alleged hardship has not been self-created.”

Chair Douglas Purcell said it was self-created because the Town passed its own zoning ordinance, the Town should not have entered into negotiation without looking into the zoning.

Kenneth Coirin agreed.

Chair Douglas Purcell asked if Frank Malagisi was wanting to make a motion.

Motion: Frank Malagisi moved to deny the application. Kathleen Ellerby seconded the motion with condition to revisit.

Chair Douglas Purcell said a “yes” denies the application and a “no” vote means the ZBA would have to go back and revisit it.

Roll call vote:

Chair Douglas Purcell: Yes, deny

Kenneth Coirin: Yes

Frank Malagisi: Yes

Kathleen Ellerby: Yes

John Byrnes: Yes

Application has been denied.

Chair Douglas Purcell said the ZBA needed to schedule Z2020-06.

It was agreed to schedule a public hearing on August 20, 2020 at 7:00pm for both Sweet and NLH.

Motion: Frank moved to adjourn. Kenneth Coirin seconded the motion.

The meeting adjourned at 7:32 pm.

Respectfully submitted
James McMartin Long
Town of Caroga Town Board Member,
Zoning Board of Appeals Clerk/Secretary

Copyright © James McMartin Long 2017-2021