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Appeals Court Upholds Village Zoning Laws HoliMont Ski Lift Denied Planning Board Addresses Non-Compliance

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By Jann Wiswall

During the Village Planning Board meeting on Tuesday, Jan. 14, board members reported that the Supreme Court of the State of New York, Appellate Division, has ruled in favor of the village’s zoning laws and the interests of the village in a suit filed by HoliMont, Inc.

HoliMont had appealed a previous judgment of the Supreme Court of Cattaraugus County.

The judgment “was unanimously affirmed” by the Appellate Court. Its decision reads:

“Petitioner [HoliMont, Inc.] commenced this proceeding seeking to challenge the determination of respondent Village of Ellicottville Zoning Board of Appeals (ZBA) denying its request for a use variance to permit it … to extend a ski lift over a parcel of land that it had acquired at 36 Adams Street. … Supreme Court properly denied the petition. ‘The determination of the ZBA is entitled to great deference and must be sustained where, as here, it has a rational basis and is supported by substantial evidence.’ The ZBA properly determined that petitioner failed to show that it was entitled to the use variance inasmuch as it failed to establish that it could not realize a reasonable rate of return without the use variance. … Although petitioner presented the testimony of an expert on that point, we note that it is the ‘sole province of the ZBA … as administrative factfinder’ to resolve issues of credibility. … Additionally, petitioner failed to establish that its proposed development would not alter the essential character of the surrounding neighborhood. … Indeed, the record establishes that permitting an active ski lift and snowmaking equipment on its parcel will alter the quiet residential area surrounded by nature in which that parcel is located because of the increased use of the parcel. Finally, the record establishes that petitioner’s hardship was self-created inasmuch as petitioner had stipulated to restrictions calling for an ‘undisturbed green area’ in the location petitioner now seeks to develop.”

Planning board members agreed that the court’s decision was an important one for the village in that it affirms the strength of the village’s zoning laws.

In regular business, the planning board discussed progress on the 16 Martha St. property development. Board Chair Nancy Rogan reported that she had attended the Village Board meeting on Jan. 13 to ask that board to consider the planning board’s recommendation to subdivide the property and rezone one parcel as Village Commercial 3a and the other parcel as Medium Density. The village board’s attorney, Bob Simon, is reviewing the recommendation; all necessary paperwork and documentation from the planning board will immediately be forwarded to Simon. The Village Board has scheduled a public hearing on the matter for March 10 at 6 p.m. in the Town/Village Hall.

The planning board also discussed various compliance issues. Code Enforcement and Building Inspector Tom Abriatis said he had talked with EBC owner Peter Kreinheder about keg storage and a door that still needs to be installed. Kreinheder told Abriatis that the kegs had been delivered to the wrong location and that they will be promptly relocated. He also said that the wrong door had been delivered and another is on order. It will be installed as soon as it arrives. Rogan asked Abriatis to monitor the progress on these issues. Kreinheder also has asked the planning board about constructing a removable dance/band floor for the beer garden area. The planning board will work with him to design an acceptable structure.

The planning board noted that dangerous roof ice is still an issue at the Coffee Culture building. Planning board members recalled that it had asked the owner, Sprague Development, to address the issue last winter. Any action Sprague may have taken at that time did not solve the problem and the owners continue to block off part of the sidewalk along the side of the property to keep pedestrians safe from falling ice. The planning board also noted that Sprague still has not changed the lighting on the exterior of the building as requested by the planning board many months ago. Abriatis said he will speak with the owners.

Construction on the addition at Balloons has begun. The planning board said it and Abriatis must stay on top of the process and make sure all conditions of the project are being met.

Rogan also said that the town and village are endorsing an effort to extend the Western New York Southtowns Scenic Byway into Cattaraugus County along 26 miles of Route 219 from Concord to Great Valley. She said the planning board will be reviewing all of its signage ordinances to ensure that they meet requirements of a scenic byway.

The next meeting of the Village Planning Board will be held Tuesday, Feb. 11,  2014, at 5:30 p.m. in the Town/Village Hall.

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