MINUTES OF MEETING                       

                                 November 12, 2007

The regular meeting of the Zoning Board of Appeals of the Town of Clay, County of Onondaga, State of New York was held at the Town Hall of Clay, New York on November 12, 2007.

Chairman Fennhahn called the meeting to order at 7:30 P.M. and upon the roll being called the following were:

PRESENT:  Arthur Fennhahn        Chairman
                     Charles V. Mangan    Deputy Chairman 
                     Eugene Young             Member
                     Karen Liebi                 Member
                     David Hess                  Member
                     Vivian I. Mason          Secretary
                     Mark Grobosky          Attorney
                     David Balcer               Town Planner

MOTION made by Deputy Chairman Mangan that the Minutes of the meeting of October 8, 2007 be accepted. Motion was seconded by Mrs. Liebi. Unanimously carried. 

MOTION made by Chairman Fennhahn that for the purpose of the New York State Environmental Quality Review (SEQR) all new actions tonight will be determined to be Type II actions, and will be given a negative declaration, unless otherwise advised by our attorney. Motion was seconded by Mr. Young. Unanimously carried.

OLD BUSINESS:

Case #1273 - VARIANCE - Dave Charron, 5332 New York State Route 31 (Tax map #051.-01-10.2 & 051.-01-11.0):

The applicant is seeking a variance to decrease the lot area (with access) from 160,000 square feet to 130,731 square feet to decrease the allowable front yard minimum accessory setback from 115 feet to 51 feet, to decrease the allowable side yard minimum accessory structure, detached, from 50 feet to 20 feet on the western property line for the purpose of turning an existing house into office and retail space, existing barn and garage for equipment storage, and adding outdoor retail display area for the sale of plant material and landscaping accessories.

(Standards of Proof were given at the September 10, 2007 meeting. Mr Charron had an application for a zone change before the Town Board that was under consideration and at the September Zoning Board meeting it was noted that parts or all of these variance requests could be withdrawn. At the September Zoning Board meeting this hearing was adjourned until Town Board took action.)

The applicant was not present.

Chairman Fennhahn adjourned this hearing to December 10, 2007.

Case #1276 - Special Permit - Laurentiu (Larry) Fratostitanu, 4931 Ernest Way (Tax
map #077-27-16.0:

The applicant is seeking a special permit for the purpose of operating a home occupation of selling gifts (d.b.a. Studio Gift).

(Standards of proof were given at the October 8, 2007 meeting)

Chairman Fennhahn asked the applicant if he had any further comments to add this evening.

Mr. Fratositanu said he wanted to add that he would not have a sign and that he will have no in home sales.

Mr. Mangan said that meant no one would be coming to the door, and Mr. Fratositanu said no, no one would be coming to the door.


Mr. Hess asked him if there would also be no sign on his truck and Mr. Fratositanu said there would not be one there either.

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those opposed to granting the Special Permit and those opposed to granting the Special Permit and there were none.

Chairman Fennhahn closed the hearing.

MOTION was made by Deputy Chairman Mangan in case #1276 that the Special Permit be granted with the condition that there be no sign on the house and no “in home sales” (retail). Motion was seconded by Mr. Hess.

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - in favor
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - in favor Unanimously carried.

Chairman Fennhahn stated that the Special Permit is granted.

Case #1277 - SPECIAL PERMIT - Michael Mastrogiovanni, 7640 Commander Circle
(Tax Map #085.-12-12.0):

The applicant is seeking a special permit for the purpose of operating a home occupation of selling fire arms (d.b.a SPUR Shooters Supply).

(Standards of proof were given at the October 8, 2007 meeting.)

Mr. Mastrogiovanni said he wanted to clarify what his business does. The vast majority is
firearms transfers and gun shows. The transfer is a service that allows a person to purchase a firearm using the Internet from another individual or dealer and receive it legally delivered to Mr. Mastrogiovanni for transfer to them. These guns are usually from out of state and he charges a fee for this service, which is not a retail sale. He also sells and buys on the Internet himself and takes the guns he sells to the post office for shipping. Mr. Mastrogiovanni said he will not have any signage on his house and will not have any show cases or merchandise on display. He added that if former Commissioner Keeler had informed him about his home occupancy the would not be suffering this hardship that has been brought upon him by having to seek the Special Permit.

Deputy Chairman Mangan said he saw no hardship. 

Mr. Young asked him to explain Internet sales. Mr. Mastrogiovanni said he finds a gun from a dealer on the Internet. The purchaser pays the dealer, then he runs a check on the buyer. If okay, the gun is sent to him and then the person picks it up. Seventy-five percent is the transfer of guns and twenty to twenty-five percent is sales.

Mr. Mangan said the problem is that there are sales at the home and it is not clear to him that 25 to 30 percent represents incidental sales.

Mr. Young said he felt the main business was transfers and the incidental business was sales.

Chairman Fennhan said they needed to know that the sales are not the dominate business.

Mr. Mastrogiovanni said he felt he had shown that to the Board.

Chairman Fennhahn asked Mr. Balcer if he had any comment and he said he had none.

June Baycura said that 25% was sales from the home. If she passed the background check she could buy a gun. Mr. Mastrogiovanni said yes.

Mr. Fenster asked what the problem was, and Chairman Fennhahn explained that the ordinance says no retail sales and they want to be sure there is no impact to the neighborhood.

Joyce Cirrito asked how much of the house can be used for the business and Chairman
Fennhahn said 25% of the first floor area or 500 square feet total, whichever is less.

Mr. Mastrogiovanni said he has been in business for 15 years and no one knew he was unless he told them. He has and will not have any signage. He didn’t want anyone to even know he had this business. He does not want a store. 

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those in favor of granting the Special Permit and there were four, Clayton Holland, Bruce Fenster, Ed Hyne, and Terry Countryman. He asked for those opposed to granting the Special Permit and June Baycura was opposed. Michael Banks, President of the BCA said he was afraid they’ll be other businesses. He is concerned with in home retail.

Mr. Mastrogiovanni said no one comes to his door to buy a gun.

Chairman Fennhahn closed the hearing.

MOTION was made by Mr. Young in case #1277 that the Special Permit be granted with the condition that there be no signage on the property. Motion was seconded by Me. Hess.

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - against
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - against Carried.

Chairman Fennhahn stated that the Special Permit is granted.



NEW BUSINESS

Chairman Fennhahn asked the Board Members if they had visited the sites and all answered in the affirmative.

Case #1278 - VARIANCE - Michael Marley, 4944 Ver Plank Road (Tax Map #047-01-
09.2):

The applicant is seeking a variance to reduce the rear yard setback from 25 feet to 12 feet to allow construction of a storage building.

Proof of publication was read by the Secretary.

James Swem, who is representing the applicant, said they would like to construct a storage building on the southeast corner near the power lines. It will be 32 feet by 52 feet. They want the variance so that the trucks will be able to turn around on their property and not have to back in off of Ver Plank Road.

Mr. Swem addressed the Standards of Proof:

1. He doesn’t think it will detract from the character of the neighborhood, as it will
be near the power lines.
2. To move the shed forward would not allow the trucks room to turn around.
3. He does not feel the request is substantial.
4. He doesn’t believe there will be an adverse environmental impact on the
neighborhood.
5. The need for the variance is self-created.

Mr. Young commented that there should not be any electricity etc. and Mr. Swem said it would just be used for cold storage.

Donna Jordan asked what the business was and Mr. Swem said manufacturing, LED for cell towers, safety lights for mines, etc.

Mr. Mastrogiovanni asked if this would make it safer bringing trucks in and Mr. Swem said yes.

Chairman Fennhahn asked if there were any further comments or questions and there were none.

The Onondaga County Planning Board determined that there would be no significant adverse inter-community or county-wide implications.  Chairman Fennhahn asked for those in favor and Mr. Mastrogiovanni was in favor. He asked for those opposed to granting the variance and there were none.

Chairman Fennhahn closed the hearing.

MOTION was made by Mr. Hess in Case #1278 that the variance be granted with the
condition that the storage shed be constructed in substantial compliance with Exhibit #2 dated August 23, 2007 . Motion was seconded by Mrs. Liebi .

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - in favor
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - in favor Unanimously carried.

Chairman Fennhahn stated that the variance is granted.

Case #1279 - VARIANCE - Jodi and Trayne Grau, 201 Windwod Road (Tax map
#098-12-05.0):

The applicant is seeking a variance to reduce the side yard setback from 10% (nine feet) to ±8% (7 feet) for the purpose of allowing installation of a pool within the side yard setback.

Proof of publication was read by the Secretary.

Jodi Grau explained that the pool is already installed with a permit, but Syracuse Pool’s
subcontractor put it in the wrong place, too close to the fence line. She said they also had a letter from the neighbor saying they had no objection to the granting of the variance.

Mrs. Grau addressed the Standards of Proof:

1. They don’t think it will detract from the character of the neighborhood. 
2. The only alternative without the variance would be to dig up the pool.
3. Since they are only requesting two feet and the neighbor has no objection they 
feel the variance request is not substantial.
4. They don’t believe there will be an adverse environmental impact on the
neighborhood.
5. Since Syracuse Pool’s contractor made the error, they don’t feel the need for the
variance is self-created.

Chairman Fennhahn asked Mr. Balcer if he had any comments and he said no.

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those in favor of granting the variance and Donna Jordan, Mrs. Grau’s mother and Mr. Hynes were in favor. Chairman Fennhahn asked for those opposed to granting the variance and there were none.

Chairman Fennhahn closed the hearing.

MOTION was made by Mrs. Leibi in Case #1279 that the variance be granted as requested with the condition that the pool be in substantial compliance with Exhibit “A”, a survey prepared by Douglas R. Lehr, dated 11-26-1986 and revised 4-8-05. Motion was seconded by Mr. Hess.

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - in favor
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - in favor Unanimously carried.

Chairman Fennhahn stated that the variance is granted.

Case #1280 - SPECIAL PERMIT - Clayton J. Holland, Jr. (Tax map #086-22-27.0):

The applicant is seeking a Special Permit to allow a Home Occupation at his residence selling firearms.

Proof of publication was read by the Secretary.

Clayton Holland explained that he has an Internet business former Commissioner Keeler gave him permission and he confirmed that to ATF okaying the business. 

Chairman Fennhahn pointed out that former Commissioner Keeler did not have to authority to do that.

Mr. Holland continued, stating he does have the authority of the ATF. He is also an instructor.  Originally he did a mail order business, then switched to the Internet. He has security and a safe. Ninety percent of his business is Internet sales and the transactions are not a retail sale. He does Federal background checks. He does not want a sign and the Board can condition that. His onsite sales are minimal and incidental to Internet sales. He’s been doing this for fourteen years and not many know of business being there. He presented ten letters in support of his business.

Chairman Fennhahn informed Mr. Holland that the Board received a letter objecting to his application for a Special Permit. He asked that Mr. Holland repeat the percentages of his business.

Mr. Holland answered that 90% is Internet sales and 10% is people coming to the house. 

Mr. Young commented that Internet sales is the same as a mail order business.

Joyce Cirrito asked how much of the house is used for this “in home” business and Mr. Holland said 25% of the basement.

Mr. Mastrogiovanni asked if it was the same as an Ebay business and Mr. Holland said yes.

Mr. Countryman, also a neighbor, said he never knew he had the business and stated that he drew no traffic.

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those in favor of granting the Special Permit and Michael Coyne aneighbor around the corner, said he has known Mr. Holland for years, was unaware he was selling firearms, but he doesn’t object. Mr. Mastrogiovanni, Mr. Fenster, Mr. Hyne also said they were in favor. Chairman Fennhahn asked for those opposed to granting the Special Permit and June Baycura and Michael Banks, President of the BCA said they were opposed.

Chairman Fennhahn said the Board needed time to review and evaluate this request. He
adjourned the hearing to December 10, 2007.

Case #1281 - VARIANCE - Marc Holler, 7904 Walking Stick Way (Tax Map #083.1-
03-05.0):

The applicant is seeking an area variance to reduce the side yard setback from 14.5 feet (10%) to ten feet (±7%) to construct a pool in rear of residence.

Proof of publication was read by the Secretary.

Marc Holler explained that his property is unique, the frontage is larger than the back yard.  They have a play set back there and it is fixed in place and the other side of the property is sloped. The flat portion is where they would like the pool.
Mr. Holler addressed the Standards of Proof:

1. He doesn’t think it will detract from the character of the neighborhood since
there are other pools in the neighborhood also.
2. There is no other feasible place to put the pool because of the play set, the patio,
and the sloping of property.
3. Yes, he feels the variance request is substantial.
4. He doesn’t believe there will be an adverse environmental impact on the
neighborhood.
5. The need for the variance is self-created.

Chairman Fennhahn asked Mr. Balcer if he had any comment and he had none.

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those in favor and those opposed to granting the variance and there were none.

Chairman Fennhahn closed the hearing.

MOTION was made by Deputy Chairman Mangan in Case #1281 that the variance be
granted with the condition that the addition be in substantial compliance with Exhibit “A”, a survey prepared by Ianuzi and Romans, P.C. dated 9/18/2000. Motion was seconded by Mrs. Liebi.

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - in favor
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - in favor Unanimously carried.

Chairman Fennhahn stated that the variance is granted.


Case #1282 - VARIANCE - Ms. Marilyn Rowland, 141 Dormar Drive (Tax Map
#112-01-32.0):

The applicant is seeking a variance to reduce side yard setback from 9 feet (15%) to 7.65 feet (12.75%) to construct a carport in front of an existing garage.

Proof of publication was read by the Secretary.

Lynn Sturtz, representing her mother, explained that they want to put on a carport. Her
mother just had knee surgery.

Chairman Fennhahn told Ms. Sturtz that she can only go out 15 feet, not 16 feet as proposed on the survey, that she can only go to the building line.

Ms. Sturtz presented photo, plus one depicting a similar carport.

Ms. Sturtz addressed the Standards of Proof:

1. She doesn’t think it will be undesirable to the character of the neighborhood. 
She feels it will blend in.
2. There is no other feasible place to put the carport.

Chairman Fennhahn asked why they want it, and Ms. Sturtz said because of snow drifts.

3. She feels the variance request is not substantial.
4. She doesn’t believe there will be an adverse environmental impact on the
neighborhood.
5. The need for the variance is self-created.

Deputy Chairman Mangan asked if it would be closer to the street and Ms. Sturtz said no, it would line up with the front of the house.

Mr. Hess inquired about the gutter and Ms. Sturtz said the old one would be removed and new ones put on.

Chairman Fennhahn asked Mr. Balcer if he had any comments and he had none.

Chairman Fennhahn asked if there were any further comments or questions and there were none. Chairman Fennhahn asked for those in favor and there were none. Chairman Fennhahn asked for those opposed to granting the variance and Henry Fischer of 39 Dormar Drive said he feels it doesn’t fit the neighborhood, would be closer to his house, and that there would be water run off. He noted that they have a garage and that it is not being used. He presented a petition.

Ms. Sturtz said there is some confusion, that the neighbors thought when they signed the
petition that the carport would be closer to the neighboring house.

Deputy Chairman Mangan noted that it will not be closer, just extending from the garage.

Chairman Fennhahn closed the hearing.

MOTION was made by Mr, Hess in Case #1282 that the variance be granted with the
condition that the addition be in substantial compliance with Exhibit “B” and “F” . Motion was seconded by Mrs. Leibi.

Roll call: Mrs. Liebi - in favor
Deputy Chairman Mangan - in favor
Mr. Young - in favor 
Mr. Hess - in favor
Chairman Fennhahn - in favor Unanimously carried.

Chairman Fennhahn stated that the variance is granted.

Before the meeting was adjourned, Russ Mitchell commended the Board on their questioning of the applicants and their decisions.

There being no further business, Chairman Fennhahn adjourned the meeting at 9:25 P.M. 



________________________________
Vivian I. Mason, Secretary
Zoning Board of Appeals
Town of Clay


                                                                   
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