Zoning Board of Appeals

Schenectady Board of Zoning Appeals Minutes August 2, 2023 I. CALL TO ORDER Commissioner Mr. Connelly called the meeting to order at 6:30 p.m. After calling the meeting to order, Commissioner Connelly, the acting chair for Mr. Gleason, explained to the members of the public how the consideration of the applications would proceed. He stated that the applicants would have an opportunity to make their presentation to the Board, followed by any members of the public who would like to speak in favor of the application. Next any members of the public in opposition to the application would be invited to speak, followed by any further discussion or questions the Board Members wished to put forth prior to the vote. He added that after the initial presentation of the proposal the applicant would not be given another opportunity to comment unless directly questioned by a Board Member. The meeting is being recorded. II. ROLL CALL PRESENT: Dave Connelly, Acting Chair; Mary D’Alessandro-Gilmore; Helene Lester, Brendan Keller, Mary Zawacki (new commissioner), Jack Connelly, Chris Marney, Assistant Corporation Counsel, and Sylvia Jimison, Development Staff. III. EXCUSED: Fred Clark and James Gleason . IV. CONFLICT OF INTEREST CHECK None. V. APPROVAL OF MEETING MINUTES The minutes were approved for the July 5, 2023, meetings. The motion was made by Commissioner Connelly and seconded by Commissioner Lester. Motion carried unanimously. IV. OLD BUSINESS A. TK Sons Properties INC requests a use variance for 820 Strong St. (tax parcel 49.40-2- 7) located in the R-2 Two -Family Residential District to use four dwellings where two are allowed, pursuant to Section 264 Attachment 1 Schedule A. Mr. Andy Brick of Brick Law Firm came before the commission to speak on the behalf of Mr. Teekah Lachman for the requested variance. Mr. Brick handed out documents to the commissioners and quotes from contractors. He said converting the property from a 4-unit dwelling to a 2-unit dwelling would cost around $250,000, which would not provide a reasonable return. The property has always been used as a 4-unit dwelling since it was constructed in 1972, before the zoning change that limited it to 2 units. Allowing the property to remain a 4-unit dwelling would not alter the character of the neighborhood. Mr. Brick provided several estimates and cost sheets to support their argument that converting the property at 820 Strong Street from a 4-unit dwelling to a 2-unit dwelling would cost around $250,000:  An estimate from HKT and Sons Contracting showing a total cost of $250,257 for the 2- unit conversion.  An estimate from Rick's Construction showing $50,000 in costs just for the exterior work, which would need to be done regardless of the conversion.  A materials cost sheet showing that the interior renovation costs for the 4-unit option would be $104,000, while the 2-unit option would cost significantly more. Mr. Brick argued that these estimates supported their claim that there would be a lack of reasonable return if the property was converted to a 2-unit dwelling, given the high costs and lower rental income from only 2 units. However, some board members questioned the estimates and cost sheets, noting that they had no way of verifying if they were reasonable. Mr. Brick responded that the applicant, who has 20 years of experience in the business, developed the cost sheets based on his professional opinion of what would be needed for the renovations. The applicant planned to make substantial investments to improve the property, which would benefit the neighborhood. Mr. Brick attempted to get an architect to certify the cost estimates to support their argument: "I spoke with four different architectural firms five actually, and some weren't available to do it somewhere and available to do it by this one's meaning. But I can also tell you anecdotally that I'm in the process of getting close to remodel my home, and my architect is blown architects from choice and I reached out to them said that you'd have to estimate 150 to $200 per square foot for us for rehab inside costs. So that's the $400,000 if you utilize those numbers," However, Mr. Brick was unsuccessful in getting an architect to certify the estimates in time for the meeting. They argued that the applicant's 20 years of experience in the business and the independent estimates they provided were sufficient to demonstrate the high costs and lack of reasonable return for converting the property to a 2-unit dwelling. There were also concerns about fire safety, parking, and the impact on the quality of life for neighbors with increasing the density to 4-units. The city attorney, Counsel Marney, provided some background on the property at 820 Strong Street: "This is a city owned property that we took was an tax foreclosure. It was according to my records a legally non-conforming property. Prior to us taking the property that non-conforming status was abandoned, which is why he's here for the variance today. The city has owned this property since 2018, and has been unable to sell it had been listed for about $67,000. And Mr. Lachman has submitted the most competitive offer to return this property back to the tax rolls and make it happen." Counsel Marney stated that: 1. The city took ownership of the property through a tax foreclosure 2. The property was legally non-conforming prior to the city taking ownership, allowing it to be used as a 4-unit dwelling 3. When the city took ownership, that non-conforming status was abandoned 4. The city had owned the property since 2018 and been unable to sell it 5. The applicant's offer was the most competitive to return the property to the tax rolls Commissioner Connelly asked if anyone from the public oppose or in favor of the project and there were no comments from the public. RESOLUTION Commissioner Keller made the following motion to approve the use variance for 820 Strong Street to allow 4 dwelling units where 2 are allowed and seconded by Commissioner D’Alessandro-Gilmore. "I move at this time that the board approved a use variance for 820 Strong Street located in our two-family residential districts, to use for four-dwellings with two dwellings are allowed pursuant to section 264. Attachment one Schedule A.” He made the motion based on following findings: The applicant has demonstrated that an average realized reasonable return with any allowed use to hardship is unique and that this building was and always has been a four-unit does not apply to a substantial portion of the neighborhood. Recommendation: the proposal be granted based on the following findings of fact: 1. Variance will not create undesirable change in the character of the neighborhood.  2. The benefit sought by the applicant cannot be achieved through alternative means 3. Variance is not substantial. 4. No adverse environmental impact will be caused. 5. The alleged hardship has not been self-created. Motion carried unanimously. B. TK Sons Properties INC requests an area variance for 820 Strong St. (tax parcel 49.40-2-7), located in the R-2 Two -Family Residential District to allow for full on street parking where six are required pursuant to Section 262-44 B. Schedule F. Mr. Brick argued that on-street parking should be allowed for the property at 820 Strong Street for the following reasons: 1. The property has never had any on-site parking, as the parking requirements were added to the zoning code after the building was constructed. 2. There is a significant amount of available on-street parking in the immediate vicinity to accommodate the 4 units. 3. Requiring on-site parking would be cost-prohibitive given the need to renovate and reconstruct parts of the building to accommodate parking spaces. 4. Allowing on-street parking would not change the characteristics of the area and would benefit the neighborhood by bringing the vacant property back into use as 4 dwelling units. Commissioner Connelly asked if anyone from the public oppose or in favor of the project and there were no comments from the public. Commissioner Keller made the following motion to approve the area variance to allow for full on street parking where 6 spaces are required for the property at 820 Strong Street, seconded by Commissioner D’Alessandro-Gilmore: Recommendation: the proposal be granted based on the following findings of fact: 1.Variance will not create undesirable change in the character of the neighborhood. 2. The benefit sought by the applicant cannot be achieved through alternative means 3. Variance is not substantial. 4. No adverse environmental impact will be caused. 5. The alleged hardship has not been self-created. Type II SEQR Motion carried unanimously. C. TK Sons Properties INC requests an area variance to allow parking for 1151 Hilderbrandt Ave. (tax parcel 49.34-2-18.1) to occur on 35 Moyston Street (tax parcel 49.34-1-39-1), both in the R-2 Two-Family Residential District pursuant to Section 264-102(B)(4) For 1151 Hilderbrand Street, Mr. Brick stated that the proposed parking lot at 35 Moyston Street, though not adjacent to the property, was the best option available and would provide the required number of parking spaces. Moving the parking lot to the alternative city-owned lots proposed would require the applicant to go through the bidding process again with no guarantee of being awarded those lots. Based on these statements, Mr. Brick requested the use and area variances be granted to allow the properties to remain 4-unit dwellings and have parking at 35 Moyston Street. He went onto say: “For the property at 1151 Hilderbrand Street…a building with an ancillary parking lot, both in the city. During the course of preparing to transfer the property the city inadvertently sold the parking lot, so in an effort to continue to be able to utilize the property at Hildebrand Street, the city had offered an alternative location for a parking lot, which is perfectly acceptable for us and complies with the zoning in terms of the required number of parking spaces, which is 16." Mr. Brick stated that: 1. The applicant originally had a building and an ancillary parking lot 2. The city inadvertently sold the original parking lot to someone else 3. In order to still use the building, the city offered an alternative parking lot location at 35 Moyston Street 4. This alternative location would provide the required number of 16 parking spaces according to zoning 5. They were therefore requesting a variance to allow the non-adjacent parking lot at 35 Moyston Street. Mr. Brick argued against moving the parking lot to the alternative city-owned lots proposed: "From our perspective, it makes a huge difference, if you consider moving in, because Teekah would have to go through the bidding process all over again, we do that, you know, we're in a position where 35 can be utilized. So, it would start over, there's no guarantee that he wouldn't be awarded 29. So, that really would bring us back to square one." Mr. Brick stated that moving the parking lot to an alternative site would: - Require the applicant to go through the bidding process again with no guarantee they would be awarded one of the alternative lots - Put them "back to square one" since they were already in a position to utilize 35 Moyston Street. Mr.Brick also stated that the alternative site was actually closer to the neighbor who had raised concerns about the parking lot location, so 35 Moyston Street was a better option. Counsel Marney, stated the following regarding the vacant city-owned parcels proposed as alternative parking lot locations: "These parcels have been for sale for quite some time. And there has been no interest in building houses on these parcels. As is the case with many vacant parcels that the city owns very little interest in building new homes. Usually, they might be part of a larger development. But that has not been the case here on Moyston Street." Counsel Marney indicated that: 1. The alternative city-owned parcels had been for sale for a long time 2. There had been little interest in building houses on the parcels 3. This was often the case with many vacant city-owned parcels, with little interest in building new homes 4. The parcels were more likely to be of interest as part of a larger development, but that had not been the case for these parcels on Moyston Street Counsel Marney, stated that the city's development office was supportive of the application for the parking lot variance at 35 Moyston Street: "I would also point out that he is permitted to purchase these parcels and install a parking lot as of right, it's a permitted use. And they are too. So, there would be no requirement that anybody build anything on them, they could just be used for a parking lot. That being said, our office, the development office in the city is largely supportive of this application because it resolves a parking, parking for a prior approval for use variance on this apartment building on a street that is very narrow and offers very little on street parking. So, unlike the prior approval, Strong Street, this is a very narrow street that already has a substantial parking impact. And this would ensure that those units are off street." Commissioner Connelly asked the public if anyone in favor or opposition of the application. Neighbors to the property spoke in opposition of the application. OPPOSITON TO APPLICATION 1151 Hilderbrandt Avenue Ms. Marica Parker who resides at 24 Moyston Street, made the following comments in opposition to the parking lot variance at 35 Moyston Street: 1. She suggested the city look into other city-owned properties for the parking lot, but after hearing more details realized 29 and 31 Moyston Street were not directly across from her as claimed. 2. She argued that 29 and 31 Moyston Street were not buildable lots as they stand, while 35 Moyston Street currently is. 3. She said the other committee reviewing this application was investigating whether the parking lot would hinder public safety and emergency response, but they had not been notified of the results. 4. She expressed concerns about the amount of traffic on Moyston Street already and the difficulty residents have getting home due to the traffic. 5. She did not want the applicant to take up half the block for one building when residents already have trouble finding parking. 6. She planned to contact the board every day about the "garbage and weeds" at 35 Moyston Street. Ms. Burnett, who resides at 1167 Hilderbrandt since 1977, made the following comments in opposition to the application: 1. She said the building at 1151 Hilderbrand Avenue was an "eyesore" and questioned how much money it would take to fix it up. 2. She argued this was a residential neighborhood and the apartment building had negatively impacted the area by bringing panhandling, knocking on doors, etc. 3. She said there was not enough parking for 4 units given how many cars were already on Moyston Street. 4. She was concerned about where the snow from plowing the proposed parking lot would go, saying it would go into the back of the building. 5. She opposed the idea in general, wanting to keep the neighborhood the way it was. Mr. Ernest Burnet made the following comments in opposition to the application: 1. He said the building at 1151 Hildebrand Avenue had been vacant for a long time and he did not see how converting it to more units would work given the lack of parking on Moyston Street. 2. He said parking was already a big issue in the area. 3. He questioned how the applicant would fit 10 cars in the proposed parking lot given how many cars were already on Moyston Street and the neighboring property. 4. He was concerned about emergency vehicles getting through if all the parking spots were full. 5. He said the building was an "eyesore" and questioned how much money it would take to fix it up. 6. He opposed the idea in general, wanting to keep the neighborhood the way it was. Mr. Burnet asked how many people would be in each unit of the proposed apartment building. His main concerns were about the lack of parking in the area, the difficulty of fitting 10 cars in the proposed parking lot given existing traffic, and the impact on emergency vehicle access. He questioned how the building could be converted to more units given these issues. Commissioner Keller asked the neighbors to 1151 Hilderbrandt if they think adding a parking would help the situation. The neighbors were not in agreement. Commissioner Connelley closed the public hearing. RESOLUTION Commissioner D’Alessandro-Gilmore made the following motion which Commissioner Lester seconded to approve the area variance for parking at 1151 Hilderbrand Street: Recommendation: the proposal be granted based on the following findings of fact: 1.Variance will not create undesirable change in the character of the neighborhood. 2. The benefit sought by the applicant cannot be achieved through alternative means 3. Variance is not substantial. 4. No adverse environmental impact will be caused. 5. The alleged hardship has not been self-created. Type II SEQR Motion carried unanimously. D. Guiseppe Caschera requests an area variance for 20 Monroe St. (tax parcel 49.31-1-18.11) in the R-3 Multi-Family Residential District, to lower the area requirements of a multi-family home in the R-3 district pursuant to Section 264 Schedule C New Business A. Guiseppe Caschera requests an area variance for 20 Monroe St. (tax parcel 49.31-1-18.11) in the R-3 Multi-Family Residential District, to reduce the number of off-street parking spaces to two (2) where three (3) are required pursuant to Section 264-44(B) B. Guiseppe Caschera requests an area variance for 20 Monroe St. (tax parcel 49.31-1-18.11) in the R-3 Multi-Family Residential District, to allow a 6-inch driveway setback from the side property line where 24 inches is required pursuant to Section 264-43(B)(1) Luigi Palleschi from ABD Engineers and Surveyors representing the applicant made the following comments in support of the area variances for 20 Monroe Street: For the lot size variance: - The parcel is 2880 square feet and the code requires 2250 square feet per unit, so they need a variance to allow 2 units. For the parking variance: They were only able to fit 2 off-street parking spaces in the back of the property given the small parcel size and setback requirements. While the code requires 1.5 spaces per unit, there is on-street parking available on Monroe Street. The 2 off-street spaces would benefit the property. For the driveway setback variance: - The only way to achieve the required 24-inch setback from the property line would be to push the building into the side setback, so they were requesting a variance to allow a closer driveway setback. Having the closer driveway setback would benefit snow plowing. Overall, Mr. Palleschi stated that the variances and proposed building design would fit with the character of Monroe Street and the surrounding neighborhood. Commissioner Keller asked if the applicant had considered putting garages on the property, and Mr. Palleschi responded that they had considered it but felt the proposed layout without garages was the best fit for the narrow lot. Commissioner Connelly asked the public if anyone in favor or opposition of the application. OPPOSITION TO APPLICATION 20 Monroe Street A resident that lives at 18 Monroe Street, stated that he didn’t see the project being a two-family and that parking is the biggest issue. “Winters are really rough when it comes to finding a parking space.” There was one letter submitted from Daniel Zal who owns a business at 23 Monroe Street in opposition to the parking variance for 20 Monroe Street: "Although the parking is an ongoing problem in the area to be consistent with the character of the neighborhood. It seems to make more sense to provide a variance that would allow for a zero off street parking spaces as that is the case for every other building in the entire region" The letter argued that since no other properties on Monroe Street or the surrounding streets have off-street parking, except where there is an adjacent vacant lot being used for parking, a variance for zero off-street parking spaces would be more consistent with the neighborhood character. During the public hearing, one speaker in person opposed the application due to concerns about parking and the impact on nearby properties. Commissioner Connelly closed the project for public comment. RESOLUTION Commissioner Keller made the following motions and Commissioner D’Alessandro-Gilmore seconded the motion to approve the area variances for 20 Monroe Street: For the lot size variance: "I move that the Board grants an area variance for 20 Monroe Street to lower the area requirements are three district pursuant to section 264. Schedule C to allow two units on a lot size of 2880 square feet where 2250 square feet is required per unit. I make this motion based on the following findings of fact:  No undesirable change will be produced in the neighborhood  The benefit sought by the applicant cannot be achieved by other method  There would be no adverse effect on the physical or environmental conditions in the neighborhood;  The hardship is not self-created; and this is consistent with other homes in the neighborhood which are non-conforming to zoning regulations” For the parking variance: "I move that the Board grants an area variance for 20 Monroe Street to reduce the number of off-street parking spaces required from three to two as required by sections 264-44B of the zoning code. I make this motion based on the following findings of fact:  No undesirable change will be produced in the neighborhood  The variance is not substantial  There will be no adverse effect on the physical or environmental conditions." For the driveway setback variance: "I move that the Board grants an area variance for 20 Monroe Street to allow a six-inch driveway setback from the side property line where 24 inches is required pursuant to section 264-43V1. I make this motion based upon findings of fact that no undesirable change will be produced in the neighborhood and the benefits of any outcome the variance will not create an adverse effect.” Type II SEQR Motions carried unanimously. V. Applications: New Business Continued C. Antonio Marotta requests a use variance for 814 Genesee St. (tax parcel 48.60-2-9.1) in the R-2 Two-Family Residential District to allow the building four (4) dwelling units where two (2) are allowed pursuant to Section 264 Attachment 3 Schedule C Mr. Antonio Marotta appeared before the commission via WebEx and to request use to allow a 2-family residential district to for a building for 4-dwelling units. His main argument is that converting the property to a 2 unit would be cost prohibitive and he has been operating it as a 4 unit since purchasing it in 2016, unaware that it was zoned for only 2-units. Mr. Antonio Marotta a made the following key points in his comments: - He purchased the property in 2016 as a 4 unit building and has been using it as such. - He updated appliances and cabinets but was unaware it was zoned as a 2-unit building. - Converting it to a 2 unit would cost around $250,000 which is not feasible. - The property has plenty of parking for 4-units. - He purchased it believing it was a 4 unit and has been operating it as such since 2016. - He provided a quote from a contractor but was unable to get more quotes for the board meeting. Commissioner Keller asked Mr. Marotta if he had been using the dwelling as a 4-unit dwelling when he purchased it? Mr. Marotta replied that when he purchased it, there were three residential units. Counsel Marney provided the following history for the property: - The property was originally zoned for a single-family home. - The Sindoni family lived there and converted the first floor to a retail business while renting the upstairs. - In 2008, it became a pre-existing non-conforming 2-unit dwelling. - Sometime after 2008, it was illegally converted to a 3-unit dwelling. - Mr. Marotta then converted the commercial space to the 4th unit, again without permits or approvals. - When Mr. Marotta acquired the property in 2016, he did not do a zoning compliance check. - The city's records show the property classification is still a converted residential/commercial and it was never legally converted to a 4-unit dwelling. Counsel Marney provided some additional context regarding the manufacturing space: - The Sindoni family originally lived in the property and rented out the upstairs, while using the downstairs as a retail business. - They then converted the patio into a screen room and then into a meat market and sausage manufacturing space. - This conversion to a manufacturing space was done illegally without any approvals or permits. - According to city records, the property classification remained a converted residential/commercial and it was never legally converted to include the manufacturing space. In summary, the property was originally a single-family home which was converted to a two- family space with a commercial sausage manufacturing portion prior to the 2008 zoning changes. It was illegally converted over time to a 3-unit and then 4-unit dwelling without proper approvals or permits, and Mr. Marotta was unaware of this when he purchased the property. Commissioner Keller asked Mr. Marotta if when he purchased the property in 2016 did, he investigate if the property could be used a 4-unit? And Mr. Marotta replied, no. It was his first venture into real estate. He also added that there was a certificate of occupancy for 2 of the tenants and one tenant had recently moved out. He assumed there was a 4th certificate on file. Commissioner Connelly asked if any comments in favor or oppose the project. OPPOSITION FOR APPLICATION 814 Genesee Street Ms. Jackie Hurt made the following comments: - She has lived in the Bellevue neighborhood for a long time. - There is no evidence that the applicant cannot realize a reasonable return with the allowed two- unit use. Converting the building back to a two-unit dwelling would be feasible. - Adding a fourth unit would increase density and alter the character of the neighborhood. - The hardship is not unique and has been self-created as the applicant did not do proper due diligence when purchasing the property. - Granting the variance would contribute to the further decline of the Bellevue neighborhood, which is already under stress. - She asked the board to deny the variance in order to help prevent further decline of Bellevue. - In July 11 of this year, she saw an ad by a realty company that 814 Genesee was for sale for $235,000 as a four unit rental property. - The property was delisted within a day or two. - This suggests that the application for a four-unit rental may have been done to make the property more desirable to potential buyers, not out of necessity. Ms. Beverly Mace made the following points: - Her backyard abuts the applicant's property. - She does not see how the property can be converted into more units given the parking situation on Genesee Street. There are already many cars, and it is difficult to find parking. - When it snows, the applicant plows all the snow onto the church property. Mr. Steve Mace made the following points: - He lives next door to the applicant's property. - The property that he and his mother live in has always been a two-family house. - The meat market/sausage processing place used to be a patio that was later converted into a screen room and then into a business, but this was never approved. - He does not understand how the third and fourth units could be considered apartments given the condition of the building. There is only one means of egress and small windows. - People were illegally living in the third unit with bars on the windows, which would be dangerous in a fire. - The roof is flat and there is no lighting in the back, making it a good place for drug dealers. - He is opposed to converting the property into more units due to safety concerns, drug activity, and the impact on quality of life. - The property was originally zoned for two units and has been illegally converted over time. Mr. Norman Koopman made the following points in his comments: - He has a business next door to his house and had to get the zoning changed to allow a barbershop. - He knows the history of Sindoni’s and the Sindoni family who lived there. Originally it was a flat for the family and an apartment upstairs that they rented out. - He can understand where the third apartment came from, as there used to be a small one- bedroom apartment for an employee. But it had low ceilings and no headroom. - There is not enough parking for 10 cars as the applicant claims. There are already apartments on the corner lot that park on Genesee Street and in the back. - If all the spaces were used, emergency vehicles would not be able to get through. - Converting the meat market into a fourth unit would be a fire hazard as there is only one means of egress and no escape route in the back of the building. - The fourth unit would make an excellent place for drug dealers as it is out of the way and dark in the back. - He is opposed to converting the property into four units due to safety concerns, lack of parking and potential for drug activity. - The property was originally zoned for two units and has been illegally converted over time. Commissioner Connelly closed hearing for public comment. RESOLUTION Commissioner Keller motioned to deny the use variance request for 814 Genesee Street was based on the following findings of fact and seconded by Commissioner D’Alessandro- Gilmore: 1. The applicant has not demonstrated that they cannot realize a reasonable return with the allowed uses of two units. There was no evidence presented that a two-unit use would not be feasible. 2. The requested variance to allow a four-unit use would alter the central character of the neighborhood which is primarily two-unit dwellings. 3. The hardship relating to this property is not unique and would apply to a substantial portion of the neighborhood. 4. The hardship has been self-created. The applicant did not do proper due diligence before purchasing the property to confirm that four units were allowed. Commissioner Keller made the motion to deny the application based on these findings. Motion carried unanimously. D. Larapa Serafini Partnership requests an area variance for 51 Sir Benjamin Way (tax parcel 60.61-1-25) in the R-3 Multi-Family Residential District to exceed the 110% parking maximum pursuant to Section 264-45Schedule G Mr .Bill Winowski from Empire Engineering appeared before the commission representing the applicant in his comments: - The Planning Commission has already given full approval to the overall project, subject to the board granting a variance to construct the proposed garages. - They are proposing a 10-bay enclosed garage to provide a total of 27 parking spaces, exceeding the allowed 20 spaces. - The additional parking in the garage is to accommodate tenant requests. - Two neighbors who could not attend the meeting gave him permission to state that they are in favor of granting the variance. - He showed the board an elevation of the proposed building. - They feel the proposed layout with the garages fits in with the character of the area. Regarding parking and the two residents who could not attend, Mr. Winowski made the following points: - They are proposing a 10-bay enclosed garage to provide a total of 27 parking spaces, exceeding the allowed 20 spaces. The additional parking in the garage is to accommodate tenant requests. - Two neighbors who could not attend the meeting gave him permission to state that they are in favor of granting the variance to allow the additional parking. - The proposed garages and additional parking will serve residents of Angelina Estates, an existing apartment complex owned by Larapa Serafini Partnership. Commissioner Connelly asked if anyone in favor or oppose the application and there were none. Closed the public hearing. Commissioner Lester made a motion to declare the application for 51 Sir Benjamin Way a Type 2 SEQR, and was seconded by Commissioner Zawacki with no undesirable change or adverse environmental impacts. Her full motion was: "I make a motion to declare this type two action for purposes of seeker with no undesirable change." Motion carried unanimously. Commissioner Keller made a motion and second by Commissioner Zawacki that we approved area variance for 51 Sir Benjamin Way to exceed the 110%, market maximum pursuant to section 264- 45 Schedule G. “To allow for 27 parking spaces. I made this motion based on the following findings of fact, no undesirable change that we produce in the neighborhood, the benefits sought by the strike that the variance is not substantial. There'll be no adverse effect on the physical environmental conditions in the neighborhood.” Motion carried unanimously. E. Louie Lecce requests a use variance for 1100 Erie Blvd. (tax parcel 39.64-1-7, 39.64-1-26) in the C-4 Downtown District to allow a drive-through window pursuant to Section 264 Attachment 2 Schedule B Law Firm for Louie Lecce made the following points on behalf of the applicant: - The applicant purchased the property at 1100 Erie Boulevard in 2019. The city took the property back after foreclosing on the previous owner for unpaid taxes. - As a condition of purchase, the applicant had to sign over a deed to the city to be held in escrow until they renovated the property according to a use plan approved by the city. - The applicant has spent $180,000 so far on demolition, cleanup, taxes and the purchase price. - They have been trying to market the property for various uses but have had no luck. The only interested party requires a drive-thru, which is not an allowed use. - They have been unable to sell the property despite reducing the asking price from $700,000 to $399,000 over the past 4 years. - The applicant argues they meet the standard for reasonable return because they risk forfeiting the deed held in escrow if they do not renovate the property according to the city's specifications. - They contend that Erie Boulevard is not walkable and that most traffic comes from the nearby train station. A traffic study showed the drive-thru would not significantly impact traffic. - They revised the site plan to allow for both walk-up and drive-thru customers. - The applicant argues granting the variance would help return an eyesore property to the tax rolls. - The applicant purchased the property with the condition that they renovate it according to a use plan approved by the city. - The only interested party requires a drive-thru, which is not an allowed use. - They argue they meet the standard for reasonable return because they risk forfeiting the deed held in escrow if they do not renovate the property. - They contend Erie Boulevard is not walkable and most traffic comes from the train station. A traffic study showed the drive-thru would not significantly impact traffic. - They revised the site plan to allow for both walk-up and drive-thru customers. - They argue granting the variance would help return an eyesore property to the tax rolls. Counsel Marney made the following points in response to the applicant's request: - The city use agreement will not override the legal standards for granting a use variance. - Starbucks without a drive-thru is a permitted use as of right for the property. The drive-thru prohibition was an intentional decision. - Drive-thru facilities are permitted in zones closer to downtown and the train station, not in this neighborhood. - The neighborhood was intended to be walkable. - Allowing a drive-thru would set a precedent for other businesses that may want one. - The answer to the applicant's issue does not lie with the ZBA but with the city council, which determined drive-thru are not wanted in the retail district. - There does not appear to be a path for the ZBA to grant a departure from the prohibited drive- thru use. In summary, he stated that the drive-thru is a prohibited use for the property, intended to create a walkable neighborhood. The BZA does not have the authority to override that prohibition - the city council would need to change the zoning to allow a drive-thru. Mr. Lecce continued with the following points regarding the cost for a drive thru and other businesses on Erie Boulevard: - The applicant has spent $180,000 so far on demolition, cleanup, taxes and the purchase price of the property. - They argue they meet the standard for reasonable return because they risk forfeiting the deed held in escrow if they do not renovate the property according to the city's specifications. - There are other drive thru businesses on Erie Boulevard, including Wendy's, Burger King, Dunkin Donuts and banks. - While those businesses require customers to drive in, they argue the customer usage patterns are similar to the proposed drive thru. Customers at: - Katie O’Byrnes: park their car and stay for an hour or more - Gas station: drive in, make a purchase and leave - Mike's Hot Dogs: drive in, make a purchase and leave - Plumbing store: drive in, make a purchase and leave - They contend that less than 5% of customers at Katie O’Byrnes are walk-up customers, and most traffic comes from the nearby train station. - They revised the site plan to allow for both walk-up and drive-thru customers. In summary, the applicant argues that the cost they have incurred so far meets the standard for reasonable return, and that other drive thru businesses and customer usage patterns on Erie Boulevard are similar to their proposed drive thru. Continued comments from Mr. Lecce Based on the discussion during the meeting, it does not appear that the project met the standards for a use variance two years ago when it was previously denied: - Commission noted that the project did not meet all the criteria for a use variance last time and the drive thru queue was on city property. - Mr. Lecce acknowledged that there were issues last time and said "that was it just knew that at that meeting, there was discussion about being a walkable community." - Commissioners asked if the current site plan was any different than the previous one that was denied. Law Firm for Leece said it was "totally different" and that Starbucks redesigned the footprint to allow for more walk-up traffic. In summary, while the applicant claims the current proposal is different, there is skepticism from other Commissioners that it adequately addresses the issues that led to the previous denial, particularly the incompatibility of a drive thru with the goal of creating a walkable neighborhood in that zone. Commissioner Connelly asked if there were any comments in favor or opposed to project and there were none. Closed public hearing for board discussion. RESOLUTION Commissioner Keller motioned to deny the use variance and seconded by Commissioner D’Alessandro-Gilmore request for 1100 Erie Boulevard was based on the following findings: 1. The hardship has been self-created. The applicant knew a drive thru was not an allowed use when they purchased the property. 2. This would alter the essential character of the neighborhood, which is intended to be a pedestrian district, incompatible with drive thru. 3. The hardship relating to this private property is not unique and would apply to a large portion of the district or neighborhood. 4. The applicant has not demonstrated that they cannot realize a reasonable return with allowed uses. Commissioner Keller made the motion to deny based on these findings, which was seconded by Commissioner D’Alessandro-Gilmore. The board voted unanimously in favor of denying the application. VI. Other Business VII. Adjourn Commissioner Lester at 8:57 p.m.